CAAFlog » CAAF Opinions

CAAF decided the Army case of United States v. Harris, 78 M.J. 434, No.18-0364/AR (CAAFlog case page) (link to slip op.), on May 16, 2019. The court finds that the military judge rightly denied 291 days of credit for civilian pretrial confinement, affirming the published decision of the Army CCA.

Judge Ryan writes for a unanimous court.

In 2013, Staff Sergeant (E-6) Harris was arrested by Florida authorities and charged with 44 counts of possessing child pornography. He was released on bond pending trial. He absconded, fleeing to Cambodia.

Eventually, Harris surrendered and was confined by Florida authorities (not at the request of military authorities), and Florida added a felony charge of failure to appear. Ultimately, however, the state prosecutor elected not to pursue a child pornography conviction because the state was unable to secure a key witness. Instead, Harris pleaded no contest to the failure to appear and was sentenced to confinement for 364 days. But by that point, Harris had spent 655 days in pretrial confinement; 291 days more than his state sentence.

After the state completed the prosecution, the Army took its turn. Harris was charged with possession of child pornography and desertion, eventually pleading guilty to both and receiving a sentence of confinement for five years, reduction to E-1, and a bad-conduct discharge. The military judge ordered that Harris receive 191 days of confinement credit for time spent in military pretrial confinement, but he denied Harris’ request for an additional 291 days of credit for the time spent in civilian pretrial confinement in excess of the state sentence. The military judge did so after concluding that those days of confinement were for the charge of failure to appear that occurred after Harris’ desertion and possession of child pornography, meaning that they were ineligible for credit under the applicable DoD regulation. On appeal, the Army CCA agreed with the military judge. CAAF then granted review of one issue:

Whether the Army court erroneously affirmed the military judge’s denial of 291 days of Allen credit for pretrial confinement Appellant served in a civilian confinement facility awaiting disposition of state offenses for which he was later court-martialed.

Judge Ryan’s opinion for the unanimous CAAF is short and to the point, concluding:

The record provides adequate support for [the military judge’s] determination. First, Appellant was only placed in pretrial confinement after he fled to Cambodia while out on bond and was charged with failure to appear after his return to the United States. Second, Appellant was not confined for the child pornography charges prior to his flight to Cambodia. It seems perfectly accurate to say that Appellant was placed in confinement because he fled the country and failed to appear at his hearing and not because he possessed child pornography. The record thus supports the military judge’s finding that Appellant’s confinement in Florida was “for” his failure to appear. Having determined that the military judge’s factual finding was not clearly erroneous, we find no error in his application of the law to that factual finding. The denial of the 291 days of civilian pretrial confinement credit aligns squarely with the plain language of DoDI 1325.07 encl. 2, para. 3.c.

Slip op. at 6 (citation omitted).

Case Links:
ACCA opinion (78 M.J. 521)
Blog post: CAAF grants review
Appellant’s brief
Appelllee’s (Gov’t Div.) brief
Appellant’s reply brief
• Oral argument audio (wma)(mp3)
CAAF opinion
Blog post: Opinion analysis

CAAF decided the Air Force case of United States v. Meakin, 78 M.J. 396, No. 18-0339/AF (CAAFlog case page) (link to slip op.), on May 7, 2019. Considering the appellant’s indecent online communications with others (one of whom was an undercover law enforcement agent), the court holds that the communications were obscene speech that is not protected by the First Amendment, that they are not protected by any other liberty interest, and that the unique nature of the offense of conduct unbecoming an officer and a gentleman defined by Article 133 provides a “more exacting standard of conduct [that] can be traced back at least to the days of knighthood where knights were held to a higher standard of conduct than their fellow countrymen in the Court of Chivalry.” Slip op. at 13 (marks and citation omitted). Accordingly, CAAF affirms the two charges and seventeen specifications of conduct unbecoming an officer and a gentleman, in violation of Article 133, and the sentence of confinement for 19 months and 15 days, total forfeitures, and a dismissal.

Judge Ryan writes for a unanimous court.

CAAF granted review of one issue:

Whether Appellant’s conviction for engaging in anonymous, private, and consensual communications with an unknown partner(s) in the privacy of his home was legally sufficient.

Lieutenant Colonel (O-5) Meakin was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of seventeen specifications of conduct unbecoming an officer and a gentleman, and sentenced to confinement for 20 months, total forfeitures, and a dismissal. The convening authority reduced the confinement by 15 days. Meakin’s convictions were based on his online chats with unidentified individuals about sexual fantasies involving children. Separate from his court-martial prosecution, Meakin also pleaded guilty in federal court to knowingly accessing child pornography.

Meakin argued at the court-martial that the charged violations of Article 133 must be dismissed because his communications were private and protected by the First Amendment, and Meakin renewed that argument on appeal before the Air Force CCA and at CAAF. It is thoroughly rejected.

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CAAF decided the certified Marine Corps case of United States v. Perkins, 78 M.J. 381, No. 18-0365/MC (CAAFlog case page) (link to slip op.), on April 23, 2019. Selectively reading Mil. R. Evid. 311 (which codifies various rules for evidence obtained as the result of an unlawful search or seizure), a majority of the court holds that Mil. R. Evid. 311(c)(3)(B) does not mean what it says, repudiating the recent unanimous decision in United States v. Hoffmann, 75 M.J. 120 (C.A.A.F. 2016) (CAAFlog case page), that applied the rule as written, and reinvigorating the not-quite-unanimous United States v. Carter, 54 M.J. 414, 421 (C.A.A.F. 2001), that held that “the phrase ‘substantial basis’ has different meanings, depending on the issue involved.” Accordingly, assuming that the search authorization in this case was issued without a substantial basis for finding probable cause, CAAF nevertheless applies the good faith exception even though Mil. R. Evid. 311(c)(3)(B) requires more, affirming the published decision of the Navy-Marine Corps CCA.

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

The Judge Advocate General of the Navy certified two issues, both on behalf of the defense:

I. Whether this Court’s holding in United States v. Carter as applied by the Navy-Marine Corps Court of Criminal Appeals in this case, instead of the plain reading of MRE 311(c) this Court applied in United States v. Hoffman, controls in analyzing the applicability of the good faith exception to the exclusionary rule.

II. Whether the military judge erred in denying a defense motion to suppress evidence obtained from a search of Appellant’s home.

Sergeant (E-5) Perkins was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of conspiracy to commit larceny and violation of a general order, and sentenced to reduction to E-1 and a bad-conduct discharge. The conspiracy conviction was supported by evidence of stolen military property found in the garage of Perkins’ on-base home. CAAF’s review focuses on the search authorization that gave military investigators access to that garage.

Perkins was in a relationship with a woman who alleged to military law enforcement that Perkins extorted her with nude photos and videos taken without her consent. She told military investigators that she never actually saw Perkins take a picture or video of her, but she said she once saw him use his cell phone during sexual activity and she also claimed that he had other electronic devices in his home capable of storing pictures and videos. Based on that information, and knowing that Perkins was out of town and had his cell phone with him, military investigators sought and received a search authorization to search Perkins’ home for other devices. Perkins’ commanding officer issued the authorization and agents searched Perkins’ home where they found no illicit pictures or videos, but instead found military property that eventually led to Perkins’ conviction of the conspiracy and orders violation.

At trial, Perkins moved to suppress the evidence seized from his home on the basis that the search authorization lacked probable cause, was unconstitutionally vague, and was insufficiently particular. The military judge denied the motion. On appeal, however, the Navy-Marine Corps CCA agreed with Perkins that there was no probable cause to search his home, concluding (in a published opinion) that there was no substantial basis for the commander who authorized the search to conclude that there was a fair probability that investigators would find illicit images or videos in the house. In particular, the CCA found that the woman’s allegation of extortion “did not provide probable cause to search [Perkins’] home.” United States v. Perkins, 78 M.J. 550, 557 (N-M Ct. Crim. App. 2018) (link to slip op.). Nevertheless, the CCA affirmed admission of the evidence by applying the good faith exception.

As a general rule, law enforcement must obtain a search warrant – or, in the military, a search authorization – prior to conducting a search, and the warrant must be based on probable cause. If that doesn’t happen, the remedy is exclusion of any evidence discovered. Exclusion is a judicially-created rule in the civil courts but it is codified for courts-martial as Mil. R. Evid. 311. Section III of the Military Rules of Evidence actually codifies a wide variety of judge-made law regarding search and seizure (unlike the Federal Rules of Evidence, which do not contain similar codification), and the military rules include many military-specific applications.

The civil courts also recognize – and the military rules codify – a good faith exception to the exclusionary rule based on the conclusion that there is no justification for the practical cost of excluding evidence of guilt when a law enforcement officer “is acting as a reasonable officer would and should act in similar circumstances.” United States v. Leon, 468 U.S. 897, 920 (1984). See also Mil. R. Evid. 311(c)(3). In other words, because the purpose of excluding unlawfully-obtained evidence is to incentivize law enforcement to follow the law, if law enforcement got a warrant and reasonably relied on the warrant, but the warrant was flawed, then law enforcement acted in good faith and there is no bad conduct to be deterred by excluding the evidence.

The good faith exception codified in Mil. R. Evid. 311(c)(3) applies only when three conditions are met:

(A) the search or seizure resulted from an authorization to search, seize or apprehend issued by an individual competent to issue the authorization under Mil. R. Evid. 315(d) or from a search warrant or arrest warrant issued by competent civil authority;

(B) the individual issuing the authorization or warrant had a substantial basis for determining the existence of probable cause; and

(C) the officials seeking and executing the authorization or warrant reasonably and with good faith relied on the issuance of the authorization or warrant. Good faith is to be determined using an objective standard.

That second requirement, as written, doesn’t involve the officer conducting the search or seizure. Applying the plain language of Mil. R. Evid. 311(c)(3)(B), if an authorization is invalid and if there was no substantial basis for probable cause to issue it in the first instance, then the good faith exception does not apply no matter what the executing officer thought. That’s different from the test established by the Supreme Court in Leon.

CAAF, however, abandoned a plain-language application of Mil. R. Evid. 311(c)(3) nearly 20 years ago, in United States v. Monroe, 52 M.J. 326, 332 (C.A.A.F. 2000). In that case, and with little discussion, CAAF applied the good faith exception as envisioned by the Supreme Court in Leon rather than as set forth in Mil. R. Evid. 311(c)(3). The following year, in Carter, CAAF explained why it did that:

[W]e conclude that Mil. R. Evid. 311(b)(3) [later moved to the current (c)(3)] does not establish a more stringent rule than Leon did for civilian courts. The first prong (a search warrant or search authorization issued by competent authority) is identical to the civilian rule. The second prong addresses the first and third exceptions noted in Leon, i.e., the affidavit must not be intentionally or recklessly false, and it must be more than a “bare bones” recital of conclusions. It must contain sufficient information to permit the individual executing the warrant or authorization to reasonably believe that there is probable cause. The third prong addresses the second and fourth exceptions in Leon, i.e., objective good faith cannot exist when the police know that the magistrate merely “rubber stamped” their request, or when the warrant is facially defective.

Carter, 54 M.J. at 421. Put differently, in Carter CAAF held that Mil. R. Evid. 311(c)(3) is merely redundant with Supreme Court precedent, even though it is worded differently. Only Judge Sullivan expressed concern with that approach, decrying “the majority’s tortured construction of Mil. R. Evid. 311(b)(3).” 54 M.J. at 423 (Sullivan, J. concurring). He did not suggest following the rule as written, however, but instead quoted the 1992 concurring opinion of Judge Cox that “it is time to de-Manualize these provisions because people keep trying to ‘apply’ them, thinking they are rules.” 54 M.J. at 424 (quoting United States v. Lopez, 35 M.J. 35, 45 n.3 (C.A.A.F. 1992) (Cox, J. concurring)).

Nevertheless, Mil. R. Evid. 311(c)(3) remained a rule – though not one CAAF was willing to actually follow – until Hoffmann, where then-Judge Stucky wrote for a unanimous CAAF (that included Senior Judge Lamberth of the United States District Court for the District of Columbia, who sat by designation), distinguished Mil. R. Evid. 311(b)(3) as the military good faith exception, and applied it as written to suppress child pornography due to the absence of a substantial basis for finding probable cause for the search. 75 M.J. at 128. By recognizing Mil. R. Rvid. 311(c)(3) as the military good faith exception, Hoffmann seemingly reversed the holding of Carter that only the judge-made rule from Leon applies.

Now, with its opinion in Perkins, CAAF reconciles Hoffmann and Carter, unequivocally disregards the rule as written, and concludes that “the NMCCA properly followed our decision in United States v. Carter, 54 M.J. 414 (C.A.A.F. 2001), when applying M.R.E. 311(c)(3).” Slip op. at 2.

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CAAF decided the Army case of United States v. McDonald, 78 M.J. 376, No. 18-0308/AR (CAAFlog case page) (link to slip op.), on Wednesday, April 17, 2019. The court concludes that the mens rea (mental state) for the offense of sexual assault by causing bodily harm in violation of Article 120(b)(1)(B) (2012), where the bodily harm is a nonconsensual sexual act, is the general intent to commit the sexual act.

Chief Judge Stucky writes for a unanimous court.

CAAF granted review of a single issue:

Whether the military judge erred in instructing the panel that a negligent mens rea was sufficient to make otherwise lawful conduct criminal.

Mens rea was the #8 Military Justice Story of 2017 because of a series of CAAF decisions involving the mental state required to violate the UCMJ. McDonald (and a second case presenting substantially the same issue) involves Article 120(b)(1)(B) (2012), which prohibited sexual assault by causing bodily harm, and the definition of bodily harm included a nonconsensual sexual act or sexual contact. Congress repealed that offense in Section 5430 of the Military Justice Act of 2016 (that became effective on January 1, 2019), but it replaced it with a new-but-similar Article 120(b)(2)(A) that prohibits “commit[ting] a sexual act upon another person without the consent of the other person.”

In neither offense, however, did Congress identify a specific mens rea. Put differently, Congress didn’t say whether – to be guilty of the offense – an accused must actually know that the other person didn’t consent (actual knowledge), or recklessly disregard evidence of lack or consent (recklessness), or just fail to discover that the other person didn’t consent (negligence). Congress also could have said (but didn’t say) that the accused’s knowledge of anything doesn’t matter at all (strict liability), or that the accused need only know that he was committing the physical acts constituting the offense (general intent).

CAAF granted review in McDonald back in September (noted here), and since then two CCAs have issued decisions addressing this issue. First, in United States v. Patrick, __ M.J. __ (N.M. Ct. Crim. App. Dec. 11, 2018) (link to slip op.), the NMCCA held that the applicable mens rea is found in the definition of sexual act which required (under the facts of that case) an intent to abuse, humiliate, harass, or degrade. A month later, in United States v. Peebles, __ M.J. __, No. 20170044 (A. Ct. Crim. App. Jan 10, 2019) (link to slip op.), the Army CCA rejected the NMCCA’s reasoning and held that “recklessness is the mens rea applicable to the element of non-consent in Article 120(b)(l)(B), where the bodily harm is alleged to be the sexual act itself.”

Now, with its decision in McDonald, CAAF resolves the question in a way more similar to the decision of the NMCCA than the ACCA. Chief Judge Stucky writes that “Congress clearly intended a general intent mens rea for Article 120(b)(1)(B).” Slip op. at 4. That means that:

As a general intent offense, sexual assault by bodily harm has an implied mens rea that an accused intentionally committed the sexual act. No mens rea is required with regard to consent, however.

Slip op. at 8 (citation omitted).

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On Tuesday, just six days after hearing oral argument, CAAF summarily denied Major Hasan’s petition (CAAFlog case page) for a writ of mandamus ordering the judges of the Army Court of Criminal Appeals to disqualify themselves from his case.

No. 19-0054/AR. Nidal M. Hasan, Petitioner v. United States Army Court of Criminal Appeals, Respondent and United States, Real Party in Interest. CCA 20130781. On consideration of the petition for extraordinary relief in the nature of a writ of mandamus, the briefs of the parties, and oral argument, we note that we have the authority to issue extraordinary writs in aid of our jurisdiction pursuant to the All Writs Act (AWA), 28 U.S.C. § 1651(a) (2012). United States v. Denedo, 556 U.S. 904, 911 (2009). In this death penalty case, we conclude that we have the jurisdiction to issue the requested writ. See In re Mohammad, 866 F.3d 473, 475 (D.C. Cir. 2017) (noting that federal courts of appeals may issue writ under AWA now to protect exercise of its appellate jurisdiction later); see also Article 67(a)(1), Uniform Code of Military Justice, 10 U.S.C. § 867(a)(1) (2012) (providing jurisdiction for this Court over all cases in which the sentence, as affirmed by a Court of Criminal Appeals, extends to death).

However, before we may issue a writ of mandamus, three conditions must be satisfied: (1) the petitioner must demonstrate that there are no other adequate alternative means to obtain the desired relief, thus ensuring that the writ is not used as a substitute for the regular appeals process; (2) the petitioner must demonstrate a clear and indisputable right to the writ; and (3) this Court must be convinced, given the circumstances, that the issuance of the writ is warranted. Cheney v. United States Dist. Court for D.C., 542 U.S. 367, 380-81 (2004).

In this case, Petitioner has failed to demonstrate that he cannot obtain relief through alternative means. He may still make an administrative request to remedy the alleged source of bias, and of course, he is entitled to raise this issue in the ordinary course of appellate review. Further, Petitioner has failed to demonstrate a clear and indisputable right to the writ as the harm he asserts is entirely speculative at this stage of the proceedings. Therefore, we decline to exercise our authority under the AWA.

Accordingly, it is ordered that the petition is denied without prejudice to Petitioner’s right to raise the issue asserted during the normal course of appellate review.

79 M.J. 29 (C.A.A.F. Apr. 2, 2019) (paragraphing added).

Case Links:
Writ petition
Gov’t Div. Answer
Petitioner’s reply
Blog post: CAAF orders Gov’t Div. to re-brief
Gov’t Div. re-brief
Reply to re-brief
• Oral argument audio (wma)(mp3)
Blog post: Summary disposition

CAAF decided the Air Force case of United States v. Hamilton, 78 M.J. 335, No. 18-0135/AF (CAAFlog case page) (link to slip op.), on Thursday, February 28, 2019. Concluding that the military judge erred in admitting three victim impact statements into evidence during the sentencing phase of the court-martial – because they were not admissible under any rule – the court avoids answering the separate question of whether a statement by a crime victim admissible under R.C.M. 1001A (the President’s implementation of the Article 6b right to be reasonably heard) is evidence that is subject to any of the Military Rules of Evidence. Nevertheless, despite finding error, CAAF finds no prejudice and it affirms the findings ans sentence as affirmed by the Air Force CCA.

Judge Ryan writes for a unanimous court.

Senior Airman (E-4) Hamilton pleaded guilty to wrongful possession and distribution of child pornography, and a military judge sentenced him to confinement for two years, reduction to E-1, total forfeitures, and a bad-conduct discharge. During the sentencing phase of the court-martial, the prosecution offered three exhibits as either evidence in aggravation (admissible under R.C.M. 1001(b)(4) (2016)) or statements of victims (admissible under R.C.M. 1001A (2016)). The exhibits were:

Prosecution Exhibit 4: A statement from the child (identified as B) depicted in some of the images possessed by Hamilton, and also a statement from her mother.

Prosecution Exhibit 5: A video of a speech given by B at a conference about crimes against children.

Prosecution Exhibit 6: A written statement from another child (identified as J) depicted in other images possessed by Hamilton.

Hamilton’s defense counsel objected but the military judge overruled the objection. His ruling, however, did not clearly identify the basis for admission of the exhibits. Hamilton renewed his objection on appeal, but the Air Force CCA rejected it. The CCA concluded that the exhibits were admissible as statements of a victim under R.C.M. 1001A and that such statements “are not evidence” and so the Military Rules of Evidence “do not apply” to them. United States v. Hamilton, 77 M.J. 579, 584–86 (A.F. Ct. Crim. App. 2017) (analyzed here).

CAAF then granted review of two issues:

I. Are victim impact statements admitted pursuant to R.C.M. 1001A evidence subject to the Military Rules of Evidence?

II. Whether the military judge erred in admitting prosecution exhibits 4, 5, and 6.

Finding that the military judge erred in admitting the exhibits under any rule, CAAF does answer not address whether a R.C.M. 1001A statement is evidence subject to the Military Rules of Evidence (though it does give some hints) because to decide that question “would constitute an advisory opinion.” Slip op. at 11.

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CAAF decided the Army case of United States v. Kohlbek, __ M.J. __, No. 18-0267/AR (CAAFlog case page) (link to slip op.), on Monday, February 25, 2019. Reviewing the seemingly-blanket prohibition in Mil. R. Evid. 707 against admitting evidence of polygraph examinations, CAAF concludes that the prohibition is not so broad. In this case, however, the military judge’s ruling prohibiting the defense from introducing evidence that a confession was preceded by a polygraph is harmless error because of the strength of the other evidence of guilt.

Judge Ryan writes for a unanimous court.

CAAF granted review of one issue:

Whether the military judge erred by misconstruing Mil.R.Evid. 707 and prohibiting Appellant from presenting evidence relevant to Appellant’s post-polygraph statement.

Specialist (E-4) Kohlbek was tried by a general court-martial composed of a military judge alone. He pleaded guilty to three specifications of assault consummated by a battery upon a child under sixteen years old, in violation of Article 128, as lesser included offenses of sexual abuse of a child in violation of Article 120b. The prosecution then proceeded to trial on the greater offenses, resulting in Kohlbek’s conviction of four specifications of sexual abuse of a child. The military judge sentenced Kohlbek to confinement for 15 months, reduction to E-3, and a bad-conduct discharge.

Kohlbek’s convictions relate to an encounter with a girl identified by the initials AH. AH was a friend of Kohlbek’s step-daughter and she spent a night at Kohlbek’s home. While she was there, Kohlbek got drunk, entered the room where AH was sleeping, and sexually touched AH. AH immediately reported the incident and military police apprehended Kohlbek.

Kohlbek did not deny wrongdoing (rather, he pleaded guilty to assaulting the girl), but he did claim no memory of the incident. In turn, Kohlbek’s defense counsel asserted that Kohlbek was too drunk to form the specific intent required for the charged sexual offense. But the defense had a problem: Kohlbek confessed. Specifically, Kohlbek agreed to be questioned by military investigators and he agreed to take a polygraph examination. After the polygraph, investigators told Kohlbek (quite predictably) that he failed the polygraph and they continued to interrogate him, eventually leading Kohlbek to say:

Fine. I did it. I will write whatever you want. I’ll write a sworn statement to it. Just get me out of here.

Slip op. at 4 (quoting CCA opinion). Kohlbek’s confession followed. Kohlbek’s defense counsel tried to undermine the truthfulness of the confession by showing that it was given after a polygraph and under duress. But the military judge prohibited the defense from doing so based on the prohibition in Mil. R. Evid. 707(a) that states:

Notwithstanding any other provision of law, the result of a polygraph examination, the polygraph examiner’s opinion, or any reference to an offer to take, failure to take, or taking of a polygraph examination is not admissible.

Kohlbek challenged that ruling on appeal, asserting that the rule is not so broad that it prohibits any mention of a polygraph whatsoever and also that if it is so broad then it unconstitutionally infringes on the right to present a defense. In yesterday’s opinion CAAF agrees that the rule is not so broad (and deliberately avoids the constitutional question).

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CAAF decided the Army case of United States v. Smith, 78 M.J. 325, No. 18-0211/AR (CAAFlog case page) (link to slip op.), on Friday, February 22, 2019. In a short, per curiam opinion, the court finds any error waived.

Warrant Officer One (W-1) Smith was convicted of two specifications of indecent recording in violation of Article 120c(a) (2012) and sentenced to confinement for two months and a dishonorable discharge. The allegations arose after a young woman saw Smith take a photograph under her dress using an iPhone. She sounded the alarm, Smith was quickly apprehended, and the iPhone was seized. Military investigators then sought authorization to search the iPhone and also to seize and search any other Apple product in Smith’s residence under the theory that the iPhone could synchronize with those products. The authorization was granted, several other devices were seized, and all of the devices were sent for examination. After some forensic wizardry, investigators discovered incriminating videos on the iPhone.

Smith’s defense counsel moved to suppress the videos at trial, arguing that the iPhone was unlawfully seized (at the time of the woman’s complaint) and that the search authorization of the iPhone was not supported by probable cause. The motion was denied, the videos were admitted, and Smith was convicted. Smith renewed the suppression issue on appeal, but asserted a new basis: that investigator unlawfully used the other devices to gain access to the contents of the iPhone. The Army CCA refused to consider Smith’s new argument because it wasn’t presented to the trial military judge, but the CCA also held that the good faith exception applied. CAAF then granted review of two issues:

I. Whether the military judge abused her discretion in denying a defense motion to suppress evidence obtained from Appellant’s cellular telephone because access to the contents of the iPhone would not have been available but for the government’s illegal search and the good faith doctrine would be inapplicable under the circumstances.

II. Whether the Army Court of Criminal Appeals erred in deeming the insufficient nexus issue waived because there was no deliberate decision not to present a ground for potential relief but instead only a failure to succinctly articulate the grounds upon which relief was sought.

Those issue have complex wording but present two relatively-straightforward questions: First, whether the good faith exception to the warrant requirement applies (an issue more directly presented in a different case – United States v. Perkins, No. 18-0365/MC (CAAFlog case page) – that was argued on the same day as Smith). Second, whether waiver applies.

When an issue is waived there is no error to correct on appeal, and “waiver can occur either by operation of law or by the intentional relinquishment or abandonment of a known right.” United States v. Jones, 78 M.J. 37, 44 (C.A.A.F. 2018) (CAAFlog case page) (marks and citations omitted). Smith involved the possibility of waiver by operation of law because Mil. R. Evid. 312(d)(2)(A) requires a motion to suppress seized evidence to be made prior to entry of pleas and CAAF’s precedent states that such a motion must identify the particular reasons why the evidence should be suppressed (with unidentified reasons waived). That precedent includes an opinion from just 11 months ago, in United States v. Robinson (AF), 77 M.J. 303 (C.A.A.F. Mar. 26, 2018) (CAAFlog case page), in which CAAF applied waiver in an almost identical situation. Robinson’s trial defense counsel moved to suppress text messages seized from Robinson’s cell phone on the basis that Robinson’s consent to the seizure was involuntary, but then Robinson’s appellate defense counsel argued that the messages should have been suppressed because the seizure exceeded the scope of Robinson’s consent. Both the Air Force CCA and CAAF applied waiver to the basis raised on appeal, with Judge Ohlson writing that:

We note that the issue of waiver under M.R.E. 311(d)(2) was previously reached. United States v. Stringer, 37 M.J. 120, 125 (C.M.A. 1993) (“In view of the absence of a particularized objection at trial … we will consider the issue waived.”); see also id. at 132 (Wiss, J., concurring in the result) (finding that waiver “makes good sense” under M.R.E. 311(d) when defense counsel’s objection to issues other than that raised on appeal prevented appellate issue from being litigated at trial and may have precluded prosecution from submitting evidence which would have clarified matter).

Robinson, 77 M.J. at 307 n.6 (omission in original).

Nevertheless, in Smith the Army Government Appellate Division conceded that waiver does not apply. CAAF, however, rejects that concession:

In light of our unambiguous holding in Robinson, we reject the Government’s concession that “[w]here [an] appellant moves to suppress evidence under M.R.E. 311 but fails to articulate a possible ground upon which to suppress the evidence, this forfeits (but does not waive) the issue.” While the Government correctly notes that “this Court has found that there are instances where the plain language of a military rule for court-martial or rule of evidence reads ‘waiver’ but may be interpreted as ‘forfeiture,’ ” it somehow missed the fact that we have already decided that this is not one of those instances. Given the parties’ confusion, we take this opportunity today to reiterate that failure to object under M.R.E. 311 constitutes waiver, not forfeiture. Robinson, 77 M.J. at 307.

In the instant case, it is indisputable that Appellant failed to raise the use of his computer as a “key” to open his iPhone as a possible ground for suppression in either his written motion to suppress or at the suppression hearing. Appellant concedes this point. Thus, he waived the issue.

Slip op. at 2-3 (modifications in original).

Case Links:
ACCA opinion
Appellant’s brief
Appelllee’s (Army Gov’t App. Div.) brief
Appellant’s reply brief
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

CAAF decided the Air Force case of United States v. Briggs, __ M.J. __, No. 16-0711/AF (CAAFlog case page) (link to slip op.), on Friday, February 22, 2019. Applying last term’s decision in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), CAAF holds that the 2006 amendment to the statute of limitations for the offense of rape was not retroactive, and that military law requires a military judge to advise an accused on the statute of limitations if it applies. Accordingly, CAAF reverses the appellant’s conviction of rape and dismisses the charge.

Judge Maggs writes for a unanimous court.

In 2014, Lieutenant Colonel (O-5) Briggs was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of one specification of rape in violation of Article 120 (pre-2007). The rape was alleged to have occurred nine years earlier, in 2005. The military judge sentenced Briggs to confinement for five months, a reprimand, and to be dismissed.

At the time of Briggs’ trial, CAAF’s precedent held that there was no statute of limitations for the offense of rape. As a result, Briggs did not raise a statute of limitations defense at trial. On appeal, however, Briggs did raise the issue, but the Air Force CCA refused to consider it because Briggs had not raised it at trial. The CCA affirmed the findings and sentence, and CAAF denied review of Briggs’ claim that he received ineffective assistance of counsel when his defense counsel failed to raise the statute of limitations at trial. But Briggs’ case became one of many trailer cases to Ortiz v. United States, 585 U.S. __, No. 16-1423 (June 22, 2018) (CAAFlog case page), in which the Supreme Court held that an appellate military judge may also serve as an assigned judge of the Court of Military Commission Review. And while SCOTUS was considering Ortiz, CAAF decided Mangahas.

Mangahas reversed 20 years of precedent and reinterpreted the statute of limitations for rape of an adult, clarifying that rape (without aggravating factors) is not constitutionally punishable by death and so the statute of limitations was just five years (until Congress changed the law in 2006). CAAF’s decision in Mangahas resulted in the dismissal of a then-pending rape charge for conduct alleged to have occurred in 1997, and it also led the Air Force CCA to reverse a 2017 conviction for a rape alleged to have occurred in 2000, in United States v. Collins, 78 M.J. 530 (A.F. Ct. Crim. App. Jul 23, 2018) (discussed here), certified, 78 M.J. __ (C.A.A.F. Nov. 5, 2018) (noted here).

CAAF’s decision in Mangahas gave life to the the statute of limitations issue in Briggs, and SCOTUS remanded the case for review in light of Mangahas. CAAF then agreed to consider two issues:

I. Does the 2006 amendment to Article 43, UCMJ, clarifying that rape is an offense with no statute of limitations, apply retroactively to offenses committed before enactment of the amendment but for which the then extant statute of limitations had not expired.

II. Can Appellant successfully raise a statute of limitations defense for the first time on appeal.

In today’s decision CAAF holds that the 2006 change to the statute of limitations (Article 43) does not apply retroactively, meaning that the statute of limitations applicable in Briggs’ case is just five years. CAAF also holds that a statute of limitations defense can be raised for the first time on appeal, though when that happens the issue is tested for plain error. But because plain error applies the law as it exists at the time of the appeal (and not as it existed at the time of trial), Magahas makes the error plain and Briggs’ conviction is reversed.

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CAAF decided the certified Navy case of United States v. Cooper, __ M.J. __, No. 18-0282/NA (CAAFlog case page) (link to slip op.), on Tuesday, February 12, 2019. A nearly-unanimous court finds that an accused’s affirmative failure to request individual military defense counsel after a military judge discusses the right to make such a request with the accused is a knowing and intentional waiver of the right. The court reverses the decision of the Navy-Marine Corps CCA (that found a violation of the right) and remands for further review.

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

Every accused at a court-martial is detailed a military defense counsel, free of charge, without regard to indigence. The accused may even request a specific individual military defense counsel (IMC), however that person must be reasonably available as determined by service regulations (that generally narrow the choice considerably).

Yeoman Second Class (E-5) Cooper was convicted, by a general court-martial composed of members with enlisted representation, of three specifications of sexual assault and one specification of abusive sexual contact. He was sentenced to confinement for five years, reduction to E-1, total forfeitures, and a dishonorable discharge.

Cooper was represented by two detailed military defense counsel: Lieutenant (LT) Buyske and Lieutenant Commander (LCDR) Gross. At trial, the military judge asked Cooper who he wanted to represent him (a standard question), and Cooper said that the wanted to be represented by just those two lawyers and by nobody else. But on appeal Cooper claimed that he also wanted to be represented by IMC, and that his detailed defense counsel failed to request one of the three people Cooper identified as potential IMC. The Navy-Marine Corps CCA ordered a post-trial factfinding hearing, concluded that Cooper was denied his statutory right to IMC, and reversed Cooper’s convictions.

The Judge Advocate General of the Navy then certified the case and four issues to CAAF, challenging the CCA’s findings that Cooper did not waive his right to IMC when he failed to make his desire known to the military judge, that Cooper was denied his statutory right to IMC, and that reversal is warranted as a result:

I. Did the lower court err not finding waiver of the right to request individual military counsel where Appellee was advised of his right to request an individual military counsel, agreed he understood the right but wanted instead to be represented by trial defense counsel, and made no motion for individual military counsel?

II. Did the lower court err in not applying the Strickland ineffective assistance test where the government and trial judge played no part in the defense’s failure to request individual military counsel, and if so, did Appellee suffer ineffective assistance of counsel?

III. If Strickland does not apply, did the lower court correctly find Appellee was deprived of his statutory right to request individual military counsel?

IV. Did the lower court err in it’s prejudice analysis for Appellee’s asserted deprivation of his statutory right to individual military counsel when Appellee did not preserve the issue at trial, raised the issue for the first time on appeal, and has alleged no specific prejudice?

A majority of CAAF answers the first issue in the affirmative, finding waiver based on the fact that Cooper “fully understood the nature of the right to IMC and how it would have applied to him,” slip op. at 9, and then told the military judge that he did not want any other lawyer to represent him. The court then orders a remand to the CCA for consideration of other issues that Cooper raised on appeal but the CCA did not address in its initial review.

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CAAF decided the Navy case of United States v. Forbes, __ M.J. __, No. 18-0304/NA (CAAFlog case page) (link to slip op.), on February  7, 2019. The court unanimously affirms guilty pleas to three specifications of sexual assault by causing bodily harm based on the appellant intentionally hiding his HIV-positive status from his sexual partners.

Judge Sparks writes for a unanimous court.

Aviation Maintenance Administrationman Second Class (E-5) Forbes pleaded guilty to various offenses, including four specifications of sexual assault by causing bodily harm (in the form of a non-consensual sexual act) in violation of Article 120(b)(1)(B) (2012) that were related to Forbes intentionally hiding his HIV-positive status from his sexual partners.

The theory that failure to inform a sexual partner of HIV status constitutes bodily harm was based on CAAF’s holding in United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. 2015) (CAAFlog case page) (the #7 Military Justice Story of 2015), in which the court unanimously held that:

Appellant’s conduct included an offensive touching to which his sexual partners did not provide meaningful informed consent. See R. v. Cuerrier, [1998] 2 S.C.R. 371, 372 (Can.) (“Without disclosure of HIV status there cannot be a true consent.”).

74 M.J. at 68. The Navy-Marine Corps CCA applied Gutierrez to affirm Forbes’ guilty pleas in a published decision. United States v. Forbes, 77 M.J. 765, 769 (N-M Ct. Crim. App. 2018) (discussed here). CAAF then granted review of one issue:

Whether the Navy court erred in holding that appellant was provident to sexual assault by bodily harm due to his failure to inform his sexual partners of his HIV status.

In today’s opinion Judge Sparks clearly explains that the guilty plea in this case is entirely proper because “true consent must be informed,” slip op. at 4 n.4, and therefore:

Appellant committed a sexual assault each time he had sexual intercourse with one of the victims without first informing her of his HIV status and thereby lawfully obtaining her consent to the intercourse.

Slip op. at 4.

Congress repealed Article 120(b)(1)(B) (2012) in Section 5430 of the Military Justice Act of 2016 (that became effective on January 1, 2019), but it replaced it with a new Article 120(b)(2)(A) that prohibits “commit[ting] a sexual act upon another person without the consent of the other person.” CAAF’s holding in this case will almost certainly apply to that new offense.

Case Links:
NMCCA opinion
Blog post: NMCCA opinion analysis
Blog post: CAAF grants review
Appellant’s brief
Appelllee’s (N.M. App. Gov’t Div.) brief
Appellant’s reply brief
Amicus brief in support of Appellant (OutServe-SLDN, Inc.)
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

CAAF decided the Air Force case of United States v. Hale, __ M.J. __, No. 18-0162/AF (CAAFlog case page) (link to slip op.), on February 6, 2019. Addressing the limited (though recently expanded) UCMJ jurisdiction over members of the reserve components and the prosecution’s use of evidence of conduct that occurred outside of those limits in this case, a majority of CAAF finds the evidence was properly used to prove intent associated with conduct that was subject to UCMJ jurisdiction, and it affirms the findings, sentence, and decision of the Air Force CCA.

Judge Sparks writes for the court joined by all but Judge Ohlson, who dissents in part (disagreeing with the core holding of the majority opinion).

CAAF then granted review of two issues and specified a third:

Granted Issues:
I. The lower court found as a matter of law that personal jurisdiction does not exist outside of the hours of inactive-duty training. The lower court proceeded to find personal jurisdiction existed over Appellant because he was “staying” with his in-laws. Was this error?

II. Whether the lower court erred when it concluded the military judge correctly instructed the members they could convict Appellant for conduct “on or about” the dates alleged in each specification.

Specified Issue:
III. Whether the lower court erred in concluding the court-martial had jurisdiction over specification 2 of additional charge 1, as modified to affirm the lesser included offense of attempted larceny.

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CAAF decided the Army case of United States v. Bodoh, __ M.J. __, No. 18-0201/AR (CAAFlog case page) (link to slip op.), on Wednesday, January 23, 2019. Reviewing a number of instances during the trial where the prosecution referenced the Army’s Sexual Harassment/Assault Response and Prevention (SHARP) program – none of which drew a defense objection – the court finds some of the references improper but harmless, and it affirms the findings, sentence (with a correction), and decision of the Army CCA.

Judge Ohlson writes for a unanimous court.

CAAF granted review to determine:

Whether the military judge plainly erred by allowing the trial counsel to misstate the law and argue that the panel should base its verdict on SHARP training

Private (E-2) Bodoh was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of one specification of sexual assault and one specification of assault consummated by a battery. He was sentenced to confinement for five years, reduction to E-1, forfeiture of $1,546.80 per month for 60 months, and a bad-conduct discharge.

The granted issue involves three phases of the court-martial. First, during voir dire of the members, the prosecution asked questions that referenced the SHARP program. Second, when Bodoh testified in his own defense that the alleged sexual acts occurred but were consensual, the prosecution asked numerous questions about Bodoh’s understanding of the meaning of consent based on SHARP program training Bodoh had received, eventually drawing objections from the defense that led the military judge to give a curative instruction. Third, during closing arguments, the trial counsel repeatedly referenced the SHARP program (without objection from Bodoh’s defense counsel).

Judge Ohlson’s opinion for the unanimous CAAF repeatedly notes the defense counsel’s failures to object – and the associated application of the plan error test – but ultimately concludes that some of the references to SHARP training were not improper and the remaining references were not prejudicial.

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CAAF decided the Army case of United States v. Nicola, 78 M.J. 223, No. 18-0247/AR (CAAFlog case page) (link to slip op.), on Wednesday, January 9, 2019. Emphasizing that an accused who testifies in his own defense may be disbelieved by the trier of fact (members, in this case), and that such disbelief may form the basis for a conviction, CAAF finds a conviction for indecent viewing legally sufficient and affirms the decision of the Army CCA.

Judge Maggs writes for a unanimous court.

CAAF granted review of a single issue:

Whether the evidence of indecent viewing in violation of Article 120c, UCMJ, was legally sufficient.

The offense of indecent viewing occurs when a person, without legal justification or lawful authorization, “knowingly and wrongfully views the private area of another person, without that other person’s consent and under circumstances in which that other person has a reasonable expectation of privacy.” Article 120c(a). The statute defines private area as the naked or underwear-clad genitalia, anus, buttocks, or female areola or nipple. A conviction is legally sufficient if, considering all of the evidence in the light most favorable to the prosecution, a rational fact-finder could have found all essential elements of the offense beyond a reasonable doubt.

Staff Sergeant (E-6) Nicola was convicted of violating a general regulation, abusive sexual contact, and indecent viewing, by a general court-martial composed of officer members, and he was sentenced to reduction to E-1 and a bad-conduct discharge. Nicola’s convictions relate to his conduct with a high-intoxicated, junior female soldier, identified in CAAF’s opinion as Corporal AA.

Corporal AA testified during Nicola’s trial, and Nicola testified in his own defense. Their stories conflicted. Corporal AA claimed that Nicola sexually assaulted her in the shower in her barracks room (he was acquitted of an offense related to that alleged sexual assault). Nicola claimed that he only briefly saw Corporal AA in her bra as she undressed herself to get into the shower, and then that he later looked at her in the shower only to check on her welfare. Nicola focused on his version of events to claim that his conviction of indecent viewing is legally insufficient, while the Army Government Appellate Division asserted that Corporal AA’s version of events supports Nicola’s indecent viewing conviction (even though Nicola was acquitted of the related sexual assault allegation) and also that the members were free to disbelieve Nicola’s version of events and conclude that – even if he did not do everything Corporal AA claimed he did – he did more than he admitted to doing.

CAAF agrees with the Government Division, with Judge Maggs explaining that the court “find[s] the evidence legally sufficient to support each of the Government’s theories.” Slip op. at 6. The primary reason for that finding is Nicola’s testimony in his own defense.

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CAAF decided the Air Force case of United States v. King, 78 M.J. 218, No. 18-0288/AF (CAAFlog case page) (link to slip op.), on Friday, January 4, 2019. Emphasizing the ability of prosecutors to prove guilt with circumstantial evidence, the court finds that a conviction of viewing child pornography is legally sufficient even though computer forensics could not conclusively prove that the images were knowingly viewed.

Chief Judge Stucky writes for a unanimous court.

Airman First Class (E-3) King was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of one specification of attempting to view child pornography, one specification of viewing child pornography, and one specification of violating a general regulation. He was sentenced to confinement for nine months, reduction to E-1, and a dishonorable discharge. The Air Force CCA summarily affirmed the convictions.

The evidence against King included an admission by King that he searched for and looked at naked images of young girls, and it also included the results of a forensic examination of King’s electronic devices that revealed thousands of offensive images and three specific images of child pornography. Those three images were found on King’s home computer, but in hard-to-access places: two were found in a web browser’s cache (a storage location to make repeat browsing faster) and one was found in unallocated space (likely meaning that it was a deleted item). King was convicted of knowingly and wrongfully viewing those three specific images, and CAAF granted review of a single issue challenging the sufficiency of that conviction in light of the location of the images:

The military judge found Appellant guilty of viewing child pornography. But all of the alleged child pornography appellant allegedly viewed was found in unallocated space or a Google cache. Is the evidence legally sufficient?

CAAF finds the evidence legally sufficient, but Chief Judge Stucky’s opinion begins with the caveat that it does so, “given the very low threshold required to sustain a conviction for legal sufficiency.” Slip op. at 1.

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