CAAF affirmed the Air Force Court in a 3-2 opinion in Lloyd, available here.  Judge Erdmann wrote the majority opinion.  Chief Judge Effron, joined by Judge Baker, dissented.

More later.

It looks like this is a bad week to be on the road.  Here’s a link to CAAF’s opinion in Yammine, which it issued today.  My computer has finally agreed to open the opinion.  Judge Ryan wrote for the court, joined by Chief Judge Effron and Judges Erdmann and Stucky.  Judge Baker wrote a separate opinion concurring in the result.

Here’s the bottom line up front from Judge Ryan’s opinion:

This case presents the questions whether evidence of a list of computer filenames suggestive of homosexual acts involving preteen and teenage boys was admissible under Military Rule of Evidence (M.R.E.) 414 (as evidence that Appellant had a propensity to commit sodomy with a child over the age of twelve but under the age of sixteen) or, alternatively, whether such evidence was admissible under M.R.E. 404(b) (to show motive, plan, or intent). We answer both questions in the negative. The computer filenames were treated as synonymous with possession or attempted possession of child pornography, which, under the facts of this case, we conclude is not a “qualifying” offense under M.R.E. 414. Nor, under the facts of this case, were the filenames admissible under M.R.E. 404(b) — the prejudicial effect of the evidence substantially outweighs whatever marginal relevance and probative value these computer filenames have to the charged offenses.

After reading the fact section of the opinion, I understand why my computer was reluctant to open the file.  I suspect some of the words in this opinion have never before appeared in the Military Justice Reporter. 

CAAF today released this opinion in United States v. Ayala, No. 10-0013.  Judge Stucky wrote the opinion of the court, which Judges Baker and Ryan joined.  Chief Judge Effron wrote a dissent, which Judge Erdmann joined.

In United States v. Estrada, No. 09-0822/AR, an Army Reservist was court-martialed and received a sentence that included a BCD. As Judge Stucky explains:

After trial, but before the convening authority took initial action, the United States Army Human Resources Command issued her administrative discharge orders. She also received a Department of Defense Form 214 (Certificate of Release or Discharge from Active Duty). Later, the convening authority approved the bad-conduct discharge.

Two months after the CA approved the BCD, ”HRC voided appellant’s discharge to the reserve component because it was erroneously issued.” Six days later, “Army personnel officials at Fort Benning, Georgia, voided appellant’s DD Form 214.”

 The issue in Estrada was whether to give effect to the honorable administrative discharge or the subsequently approved BCD.  CAAF unanimously construed Army Regulation 27-10 para. 5-16.b to void the administrative discharge and give efect to the BCD.

CAAF reasoned:

AR 27-10, para. 5-16 states that a “discharge certificate is void until the charge is dismissed or the convening authority takes initial action.” (emphasis added). The key words here are “void” and “until.” Void means “[o]f no legal effect; null.” Black’s Law Dictionary 1709 (9th ed. 2009). “Until” is commonly “used as a function word to indicate movement to and arrival at a destination” and means “up to the time that” or “till such time as.” Webster’s Third New International Dictionary 2513 (1986).

The juxtaposition of “void” and “until” in AR 27-10 is puzzling, since the former connotes a permanent cessation of legal effect, whereas the latter implies a temporary pause. But the operative word here is the subordinating conjunction “until,” which suggests that an administrative discharge issued after preferral of charges is ineffective but may become legally effective in the future. The use of the phrase “to suspend” earlier in the same paragraph supports this reading of the regulation. AR 27-10, para. 5-16.b (a charge sheet “will automatically act to suspend all favorable personnel actions”).

Thus, contrary to Appellant’s argument, “void until” does not mean that an administrative discharge promulgated after sentencing automatically remits a convening authority’s subsequent approval of a bad-conduct discharge. . . . We read AR 27-10 in accordance with this evident intent — that a convening authority’s subsequent approval of a punitive discharge supersedes a previous, erroneously issued, administrative discharge.

CAAF today affirmed ACCA’s opinion in United States v. Estrada.  Here’s a link to the unanimous opinion by Judge Stucky.  More later.

We previously noted that CAAF’s slip opinion in Morton used the word “marine” without capitalizing the m.  We are pleased to note that in the WESTLAW version, “Marine” has been capitalized.  See United States v. Morton, 69 M.J. 12 (C.A.A.F. 2010).

There have been some significant rulings from CAAF this term — Neal and Jones leap to mind.  But there have also been a number of cases in which CAAF chose not to grapple with some interesting issue that the case seemed destined to decide.  At the Supreme Court, such cases might have been dismissed as improvidently granted.  At CAAF, they’ve produced a number of narrow decisions this term.  The latest example is today’s opinion in United States v. Garner, No. 09-0729/MC.  Chief Judge Effron wrote for a unanimous court.

Garner punted on an interesting question that the granted issue appeared to present:  whether ”the ’substantial step’ requirement ” of an attempt to induce a minor to engage in sexual activity can be “satisfied where there was no evidence that the defendant intended to travel to meet the purported minor or to actually engage in sexual activity with her.”  Id., slip op. at 6.  But given the speed with which CAAF disposed of Garner, it wasn’t only a punt, but a quick kick.  Garner was the next-to-last case argued at CAAF this term, second only to its anagram, United States v. Graner.

In Garner, CAAF noted an interesting split between Seventh Circuit and Ninth Circuit case law — with the Ninth Circuit breaking from its stereotype by adopting the more prosecution-friendly approach.  Gunnery Sergeant Garner engaged in sexually explicit Internet chats with “Molly,” a screen name that Garner thought was being used by a 14-year-old girl but was actually being used by, say it with me, an  undercover cop.  CAAF explained:

Appellant contends that his plea to the attempt offense was improvident as a matter of law because he did not take a “substantial step” towards completing the offense. According to Appellant, the “substantial step” test, when applied to an attempt to commit an offense under § 2422(b), requires a specific arrangement for an actual rendezvous with the purported minor. In Appellant’s view, in the absence of such an arrangement, his conversations with “Molly” could have simply constituted “fantasy role playing.”

Appellant relies on United States v. Gladish, 536 F.3d 646, 650 (7th Cir. 2008), in which the Seventh Circuit concluded that the “substantial step” requirement of § 2422(b) was not satisfied where there was no evidence that the defendant intended to travel to meet the purported minor or to actually engage in sexual activity with her. The Government responds that this Court should rely on United States v. Goetzke, 494 F.3d 1231 (9th Cir. 2007). In Goetzke, the Ninth Circuit rejected the argument that specific travel arrangements were ecessary to establish a substantial step. The court concluded hat the defendant, by sending sexually explicit letters proposing a future meeting to a minor with whom he had prior ontact, had engaged in “grooming behavior,” which was sufficient to meet the substantial step requirement.  Id. at 1236-37. In the present case, the Court of Criminal Appeals cited Goetzke in the course of describing Appellant’s actions as “grooming behavior” sufficient to constitute a substantial step. Garner, 67 M.J. at 738-39.

Id., slip op. at 6-7.  Gladish is a Posner opinion while Goetzke is a per curiam. 

CAAF chooses not to pick a side between the Seventh and Ninth Circuits, ruling that under either standard, Garner’s provide inquiry was sufficient to uphold his conviction.  CAAF concluded:  “In light of Appellant’s own admissions during the providence inquiry, we conclude that the military judge did not abuse his discretion in accepting the plea.  In that posture, we need not address the parameters of an attempt offense under § 2422(b) where the record does not contain such admissions.” Id., slip op. at 8.

The decision calls to mind Judge Cox’s aversion to resolving unsettled substantive legal questions in guilty plea cases.  See, e.g., United States v. Byrd, 24 M.J. 286, 293 (C.M.A. 1987) (Cox, J., concurring in the result) (“I have often expressed my reservations about making substantive law on a guilty-plea record”); United States v. Reed, 24 M.J. 80, 86 (C.M.A. 1987) (Cox, J., dissenting) (“this guilty plea case is the wrong vehicle to use to make an earthshaking constitutional pronouncement or to set an otherwise proper plea aside as being improvident”).  Unless the Supreme Court steps in to resolve the Seventh Circuit/Ninth Circuit split, the issue of what is required to constitute a substantial step in an attempt to induce a minor to engage in sexual activity case will remain ripe for litigation in some future contested court-martial.

CAAF today affirmed NMCCA’s decision in United States v. Garner, No. 09-0729/MC.  Here’s a link to the opinion.  More later.

Today, CAAF affirmed in United States v. Roberts, __ M.J. ___, No. 10-0030/AF (C.A.A.F. May 13, 2010).  Judge Erdmann wrote for a unanimous court.

Roberts is a highly fact-specific opinion about the application of Military Rule of Evidence 412 and harmless error.  CAAF ruled:

We granted review in this case to determine whether the military judge erred in excluding evidence of ER’s relationship with another man (FL), evidence that Roberts asserts would have established a motive for ER to fabricate the rape allegation against him.

We agree with the Court of Criminal Appeals that under the circumstances presented in this case, the proffered evidence of ER’s alleged sexual relationship with FL was not admissible under M.R.E. 412.  We also agree with the lower court that the military judge erred in limiting the cross-examination of ER concerning the general relationship between ER and FL and specifically by not allowing any cross-examination of ER as to her cell phone call to FL immediately after the incident.However, we find those errors tob e harmless beyond a reasonable doubt and affirm the lower court.

Id., slip op. at 3-4 (citations omitted).

With the release of Roberts, just 10 cases argued this term remain undecided.

[Disclosure:  I'm one of SrA Roach's appellate defense counsel]

CAAF today reversed the Air Force Court for a second time in what is becoming the military justice appellate system’s version of Jarndyce v. Jarndyce.  United States v. Roach, __ M.J. ___, No. 07-0870/AF (C.A.A.F. May 10, 2010).  Judge Baker wrote for a unanimous court.

Chief Judge Wise of the Air Force Court recused himself when his public remarks about the case became in issue following the first remand from CAAF.  He then sent an e-mail to the Judge Advocate General of the Air Force’s executive recommending that Senior Judge Francis be designated the chief judge for purposes of the case.  The same day, the Judge Advocate General designated Senior Judge Francis as chief judge and Senior Judge Francis selected the other members of the panel that heard the case and ultimately wrote the decision affirming the findings and sentence.

CAAF held:

The threshold question asks whether the chief judge of a court of criminal appeals may recommend to the Judge Advocate General an acting chief judge for a case in which the chief judge is recused. For the reasons stated below we answer this question in the negative, and we vacate the judgment of the CCA.

Id., slip op. at 5,

CAAF reasoned, “Once recused, a military judge should not play any procedural or substantive role with regard to the matter about which he is recused.” Id., slip op. at 6. Quoting its decision from Walker v. United States, 60 M.J. 354, 358 (C.A.A.F 2004), CAAF stated, “When a judge is recused, the judge should not take action to influence the appointment of his or her replacement.” Roach, slip op. at 6.

Finding error, CAAF tested for prejudice, which it found.  Id., slip op. at 8.  CAAF noted that one factor the Supreme Court evaluates in determining whether to grant relief in such situations is ”the risk of undermining the public’s confidence in the judicial process.”  Id. (quoting Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 864 (1988)).  This portion of the analysis concluded:

The appearance of impartiality may be especially important in the military justice context. From an outsider’s perspective, it might well appear that at a court-martial and at the CCA, the critical players are invariably uniformed officers, usually if not always from the same service, and in many cases drawn from what are relatively small communities of military judge advocates. In this context, it is all the more important for participants to engage in their assigned duties without blurring legal and ethical lines; however well intentioned.

Id., slip op. at 9-10.

CAAF then proceeded to address the other three granted issues in the case.  First, it addressed AFCCA’s holding that it was limited to a comparison of the adjudged, rather than approved, sentences in conducting a sentence disparity analysis.  CAAF wrote: 

“The Courts of Criminal Appeals are required to engage in sentence comparison only ‘in those rare instances in which sentence appropriateness can be fairly determined only by reference to disparate sentences adjudged in closely related cases.’” United States v. Sothen, 54 M.J. 294, 296 (C.A.A.F. 2001) (quoting United States v. Ballard, 20 M.J. 282, 283 (C.M.A. 1985)).  Adjudged sentences are used because there are several intervening and independent factors between trial and appeal – including discretionary grants of clemency and limits from pretrial agreements – that might properly create the disparity in what are otherwise closely related cases.  In contrast, when the CCA is exercising its power over sentence appropriateness generally, it may consider both adjudged and approved sentences.

Id., slip op. at 10.  If I construe this correctly, CAAF is saying that a sentence disparity analysis must compare the adjudged sentences but that a Court of Criminal Appeals is free to consider disparity in approved sentences if it wishes to.

CAAF disposed of an appellate discovery issue by determining that it’s moot, finding that the documents the appellant sought won’t be relevant to the issue that remains under litigation upon remand. 

Finally, CAAF noted the possibility that ”a showing of ‘malicious delay’ on the part of an appellate judge might” influence a post-trial delay analysis, but declined to rule on that issue, finding that no such malicious delay occurred in this case.

Roach now returns to AFCCA for a third Article 66(c) review.