CAAF has already issued its opinion in United States v. Hohman, affirming the Navy-Marine Corps Court’s reversal of the military judge’s order.

The opinion is here.  Chief Judge Effron wrote for the majority.  Judges Stucky and Baker dissented.  More later.

CAAF has released its opinion in United States v. Oliver, No 11-0089/AR, available here.  CAAF holds that the evidence is legally sufficient to uphold a desertion conviction.  Judge Baker wrote for a unanimous court.  The opinion includes a lengthy discussion of the standards for and history of CAAF’s legal sufficiency review.  The appellant went AWOL and then turned himself in after an almost three-year absence.  The appellant pleaded guilty to the LIO of AWOL, but was found guilty of desertion with the intent to remain away permanently.  The government’s case included testimony from the appellant’s sister that she believed he had completed his military service.  The appellant was supposed to be at Fort Eustis, Virginia, but was living in New York City, where he made no effort to surrender to military control, despite ready access to military installations.  The appellant testified that “I always had an intent to come to Fort Eustis.”  He testified that he remained in New York for 33 months due to a crisis with his daughter.  His military property was in storage throughout his absence.

CAAF emphasized that its role upon legal sufficiency review is to determine whether “a reasonable factfinder reading the evidence [in the light most favorable to the prosecution] could have found all the elements of the offense beyond a reasonable doubt.” Oliver, slip op. at 13.  While noting that there was evidence that supported both the prosecution and the defense, CAAF concluded that “a rational trier of fact could have concluded that at some point during his lengthy period of absence Appellant possessed the intent to remain away permanently.”  Id., slip op. at 14.

Here.  More later.

CAAF issued its opinion in Beaty today, available here.  United States v. Beaty, __ M.J. __, No. 10-0494/AF (C.A.A.F. Apr. 26, 2011).  It’s a momentous ruling:  the maximum punishment for “appears to be” child pornography offenses is confinement for four months and forfeiture of 2/3 pay per month for four months.  No punitive discharge is available unless the escalator clause applies.

Judge Ryan wrote for the majority.  Judge Baker dissented.

While the holding is very significant now and while the opinion will be jurisprudentially important in the future, the President is free to adopt a greater punishment for “appears to be” child pornography offenses.  The Joint Service Committee has already proposed such a change. See 74 Fed. Reg. 47785.  If the President approves that proposal, the maximum sentence for possessing, receiving, or viewing actual or “appears to be” child pornography will be a DD, total forfeitures, and confinement for 10 years.  The max for possessing with the intent to distribute will be a DD, total FF, and confinement for 15 years.  The max for distribution will be a DD, total FF, and confinement for 20 years.  The max for production will be a DD, total FF, and confinement for 30 years.

A year ago, we analogized Jones, 68 MJ 465, to an easy button for determining LIOs. The CAAF opinions published this week in McMurrin, Girouard, and Bonner are further evidence that the post-Jones landscape is easy, if still somewhat contentious.

Girouard and McMurrin both address the availability of negligent homicide under Art. 134 as a LIO of premeditated murder under Art. 118 (Girouard) or involuntary manslaughter under Art. 119 (McMurrin). CAAF ruled that negligent homicide fails as a LIO in both cases because of the elements test adopted in Jones. The NMCCA reached the same result in McMurrin back in September. Girouard was decided by the ACCA 4 days after CAAF published its opinion in Jones, and the ACCA denied a motion for reconsideration in light of Jones.

At Girouard’s trial, the trial defense counsel repeatedly requested that the Military Judge instruct the members on negligent homicide as a LIO of premeditated murder. The Military Judge granted this request, and Girouard was acquitted of the premeditated murder charge and convicted of the negligent homicide LIO. CAAF’s opinion focuses on whether this action at trial constituted a waiver of the Accused’s 5th Amendment right to be notified of the charges against him, including all LIOs, and 6th Amendment right to not be convicted of an offense that is not a LIO of a charged offense.  The court notes that at the time of trial Girouard believed (as we all did) that negligent homicide was a LIO of premeditated murder, and accordingly that his trial strategy couldn’t have constituted a intentional abandonment of a known right.

Judge Baker’s dissent in Girouard, besides reiterating his objection to Jones, explains that since negligent homicide is not a LIO of any charged offense in Girouard, it follows that it was not referred for trial by the convening authority, thereby placing a jurisdictional bar on a conviction for that offense (and rendering the majority’s test for prejudice unnecessary). If adopted by the majority, this test seems to make the resolution of similar LIO issues at the appellate level even easier.

The Court’s opinion in McMurrin (both the majority and Judge Baker’s dissent) follows Girouard.

Bonner addresses whether assault consummated by a battery under Art. 128 is a LIO  of wrongful sexual contact under Art. 120(m). Citing its opinion in U.S. v. Alston, 69 M.J. 214 (2010), CAAF applied the “elements” and “common and ordinary understanding” tests to find that:

In fact, one could transplant the essential facts from the wrongful sexual contact specification, without alteration, into a legally sufficient specification for assault consummated by a battery under Article 128, UCMJ. Bonner, slip op at 7.

Bonner follows the same reasoning employed by the AFCCA’s recently published opinion in United States v. Aguilar, __ M.J. __, No. ACM 37545 (A.F. Ct. Crim. App. March 30, 2011) which we discussed here.

Altogether, the post-Jones landscape is easy. Art. 134 LIOs are out, unenumerated LIOs that meet the elements test are in, and a pre-Jones conviction of a LIO that is invalid post-Jones prejudices the constitutional rights of the Accused.

However, there is one wrinkle:  In a footnote his dissent in Girouard, Judge Baker notes that the majority’s test for prejudice raises double jeopardy concerns because it assumes that the court-martial had jurisdiction to return the erroneous finding, where his approach finding no referral for the invalid LIO removes jurisdiction and any subsequent question of double jeopardy.

NIMJ’s blog has posted this synopsis of yesterday’s CAAF opinions regarding lesser included offenses.

CAAF released a trio of LIO opinions today:  McMurrin, Girouard, and Bonner.

All three opinions reach the result one would expect under Jones and Alston; they appear to be an application of settled law rather than an expansion of it.  But I’m under the gun tonight, so I probably won’t have time to synopsize them.  I’ll try to do so over the weekend unless one of my CAAFlog colleagues beats me to it.

CAAF has already resolved Wuterich v. Jones, a writ appeal case in which it heard oral argument only last Wednesday.  The court today issued this order denying extraordinary relief and returning the case to the trial level but authorizing the relitigation of the issue of the severance of the attorney-client relationship between Appellant and one of his detailed defense counsel who retired while a government appeal was under consideration by the military appellate courts.  Wuterich v. Jones, __ M.J. __, No. 11-8009/MC (C.A.A.F. Apr. 4, 2011).

[Disclosure:  I was one of SSgt Wuterich's appellate defense counsel.]

In Daly, a military judge dismissed a charge and its supporting specifications.  The government neither sought reconsideration nor filed a notice of appeal within 72 hours.  Instead, it waited 12 days to ask the military judge to reconsider.  When that motion was denied, the government then filed a notice of appeal within 72 hours.  Too late, CAAF ruled today in a short per curiam opinion.  United States v. Daly, __ M.J. ___, No. 10-6010 (C.A.A.F. March 28, 2011) (per curiam). 

CAAF explained:

The Government failed to file either a motion for reconsideration of the order to dismiss or a notice of appeal within the seventy-two-hour period of government appeals authorized in Article 62(a)(2).  Instead, the Government took twelve days to finalize and submit a brief to the military judge asking for reconsideration of the order to dismiss.  The Government’s action was untimely under the explicit limitation of Article 62.

Id., slip op. at 4.

On Tuesday, CAAF issued a summary disposition setting aside a CA’s action due to post-trial IAC.  United States v. McCary, __ M.J. __, No. 11-0243/AR (C.A.A.F. March 15, 2011).  CAAF held, “Appellant was denied his Sixth Amendment right to effective assistance of counsel in post-trial representation, where his trial defense counsel asserted in his clemency submission that Appellant had a prior federal conviction for violating a general order and adultery, when no such conviction was part of the record.”  CAAF reversed ACCA’s decision, set aside the CA’s action, and remanded the case for a new action.  I couldn’t find ACCA’s decision on its web site.

Here’s a link to CAAF’s decision in United States v. Hartman, __ M.J. __, No. 10-0291/NA (C.A.A.F. March 15, 2011).  Chief Judge Effron wrote for a unanimous court.  CAAF reversed NMCCA and set aside a sodomy conviction, holding that the military judge erred in this guilty plea case by not establishing Appellant’s understanding of how his factual statements during the providence inquiry related to the Marcum factors and ensuring  that the accused understood the distinctions that Lawrence and Marcum establish between protected sexual acts and sexual acts that can be criminalized.

In Medina, the military judge essentially ignored the new Article 120 and gave instructions on a consent/substantial incapacity issue in accordance with the old Article 120.  In today’s Medina decision, CAAF held that such an instruction was error, but harmless.  United States v. Medina, __ M.J. __, No. 10-0262/MC (C.A.A.F. March 10, 2011).  Judge Erdmann wrote for a majority including Chief Judge Effron and Judge Ryan.  Judge Baker, joined by Judge Stucky, concurred separately.

Here’s the bottom line up front from today’s Clark opinion, No 10-0588/AF,  from CAAF:

[W]e conclude that it was plain or obvious error for trial counsel to elicit testimony of Appellant’s failure to respond verbally to an accusation when apprehended and then rely on this testimony in his closing argument. We further conclude that the military judge committed constitutional error when he overruled Appellant’s objection during trial counsel’s improper rebuttal argument. However, we also conclude that these violations were harmless beyond a reasonable doubt.

Judge Baker wrote for a unanimous court.

Much of the opinion concerns the interplay between “demeanor evidence” and an accused’s right to silence.  The opinion includes this helpful guidance:

Even where demeanor is nontestimonial, improper commentary on the accused’s silence in response to police questioning when presenting evidence of an accused’s demeanor may nevertheless implicate the same rights and protections as testimonial evidence. . . . Thus, where the evidence concerns testimonial demeanor or includes improper commentary on the accused’s silence, that demeanor evidence is generally inadmissible under the Fifth Amendment and its statutory and regulatory safeguards, unless the accused waives those rights or otherwise invites the evidence.

Based on the foregoing, a framework for assessing the admissibility of the evidence of an accused’s demeanor emerges. First, we must identify the demeanor at issue and ask whether the demeanor is itself testimonial or not testimonial in nature, or whether evidence of the demeanor at issue includes improper commentary on the accused’s silence. If evidence of an accused’s demeanor is testimonial or includes an improper comment on silence, we analyze the evidence under the Fifth Amendment or applicable statutory and regulatory safeguards. Where the evidence is neither testimonial nor an improper comment on silence, we then consider whether the accused’s demeanor was relevant under M.R.E. 404(b) or other evidentiary rules relating to relevance.

Here is a link to yesterday’s decision from CAAF in US v. Watson, No. 10-0468/AR. Chief Judge Effron writing for the court finds that appellant’s administrative discharge prior to his dismissal being executed was a valid discharge and reverses ACCA. Judge Stucky, joined by Judge Baker, dissented, writing that “[t]he administrative discharge in this case was void ab initio. The discharge authority, the Commander of Human Resource Command (HRC), lacked delegated authority to issue the discharge because she did not intend the discharge to remit Appellant’s conviction or sentence to a dismissal.”