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In a published opinion in United States v. Kruse, __ M.J. __, No. 201600101 (N.M. Ct. Crim. App. Nov. 3, 2016) (link to slip op.), a three-judge panel of the NMCCA finds that the convening authority did not have the power to disapprove an adjudged punitive discharge when the pretrial agreement only provided for suspension of any adjudged discharge.

The appellant pleaded guilty to numerous drug offenses and was sentenced to confinement for 100 days, reduction to E-1, forfeiture of $300.00 pay per month for three months, and a bad-conduct discharge. A pretrial agreement required suspension of the bad-conduct discharge. But the CCA disapproved the punitive discharge and the appellant was administratively separated.

As part of the 2013 changes to the UCMJ, Congress significantly limited the convening authority’s Article 60(c) power to act on the results of a court-martial. I analyzed the changes in depth in this post and in this LexisNexis Emerging Issues Analysis. Those changes were effective on June 24, 2014, and applied only to offenses that occurred on or after that effective date. However, because courts-martial adjudge unitary sentences (a single sentence for all convictions), a case involving convictions for offenses committed both before and after June 24, 2014, presented a paradox. Congress resolved this problem in December 2014 by mostly restoring the convening authority’s original power in cases involving convictions for misconduct that occurred before June 24, 2014. See Carl Levin And Howard P. “Buck’” Mckeon National Defense Authorization Act For Fiscal Year 2015, § 531(g)(2)(A)(ii), 128 Stat. 3292, 3366 (2015) (discussed here).

Earlier this year, in United States v. Roller, 75 M.J. 659, (N-M. Ct. Crim. App. Mar. 31, 2016) (discussed here), the Navy-Marine Corps CCA held that it was an affirmative misstatement of the law for a SJA to fail to advise the convening authority of the restored power in a case involving an offense that occurred before June 24, 2014.

Kruse presents the opposite problem from Roller. In Roller the convening authority was not constrained by the new Article 60(c), but was improperly advised that he was. In Kruse, however, the convening authority was constrained by the new Article 60(c), but he did more than the pretrial agreement authorized.

Writing for the panel, Chief Judge Palmer (who also authored the CCA’s opinion in Roller) explains that:

Here, the government does not offer, nor do we find in the legislative history, any clear expression of Congressional intent permitting a CA to take action inconsistent with the law or plain terms of a pretrial agreement. Indeed, we need look no further than the FY14 NDAA which presages the Article 60 changes with the section heading: “Elimination of Unlimited Command Prerogative and Discretion; Imposition of Additional Limitations.” Given Congress’ clear desire to limit CA discretion in granting post-trial sentencing relief, we are unable, as the government urges, to read this agreement so broadly as to permit the CA to grant relief that was not specifically contained within the pretrial agreement.

Slip op. at 5. The CCA concludes that the convening authority’s disapproval of the discharge was a nullity.

But then, noting that the appellant was administratively discharged post-trial, the CCA does something strange:

We affirm the findings and the sentence of a bad-conduct discharge, 100 days’ confinement, and forfeiture of $300.00 pay per month for three months. We further enforce the terms of the pretrial agreement by suspending and remitting the adjudged bad-conduct discharge.

Slip op. at 6.

While a CCA may disapprove a punitive discharge (functionally the same result as suspending and remitting), it’s well-settled that a CCA does not have the authority to suspend any part of a sentence on its own. That, however, hasn’t stopped the NMCCA from doing so in the recent past (discussed here).

Today CAAF will hear oral argument in the Air Force case of United States v. McClour, No. 16-0455/AF (CAAFlog case page). The case presents a single issue that challenges the propriety of an instruction to members that:

if based on your consideration of the evidence, you are firmly convinced that the accused is guilty of any offense charged, you must find him guilty

(emphasis added). Despite the question pending before CAAF, yesterday, in a published opinion in United States v. Rendon, __ M.J. __, No. 201500408 (N.M. Ct. Crim. App. Nov. 1, 2016), a three-judge panel of the NMCCA affirmed the use of such an instruction. The opinion isn’t yet posted on the CCA’s website, but it’s available here.

Writing for the panel, Senior Judge Campbell explains:

Specifically regarding the “must find him guilty” portion of the Federal Judicial Center’s instruction, the Air Force Court of Criminal Appeals and numerous Federal Circuit and state appellate courts have expressly held that jurors may be instructed that they “must find” a defendant guilty if they are convinced of the guilt beyond a reasonable doubt. Indeed, the Eighth and Tenth Circuit Courts of Appeals’ own model criminal jury instructions have the same language that the military judge used in this case.

Despite this well-settled law, the appellant contends the reasonable doubt instruction here was the equivalent of a directed guilty verdict, in violation of United States v. Martin Linen Supply Co., 430 U.S. 564 (1977). In dicta, Martin Linen Supply Co. states that “a trial judge is prohibited from entering a judgement of conviction or directing the jury to come forward with such a verdict . . . regardless of how overwhelmingly the evidence may point in that direction.” Id. at 572-73 (citations omitted). However, cases in which that prohibition has truly been at issue are clearly distinguishable from this case and in no way suggest that the military judge directed a conviction, or otherwise erred, in providing the reasonable doubt instruction at issue here.

Slip op. at 12-13 (emphasis added).

In a published opinion in United States v. Hennis, __ M.J. __, No. 20100304 (A. Ct. Crim. App. Oct. 6, 2016) (en banc) (link to slip op.), the Army Court of Criminal Appeals unanimously affirms the findings and the sentence to death of Master Sergeant Timothy Hennis (U.S. Army Ret.) for three specifications of premeditated murder.

Our #2 military justice story of 2010 was the conviction and capital sentence of Hennis.. Hennis is one of only five current military death row inmates (the others are Gray, Loving, Akbar, and Hasan; Witt is pending a sentence rehearing).

Hennis was tried three times for the gruesome 1985 rape and murder of Kathryn Eastburn, the wife of an Air Force captain who was out of town on temporary duty, as well as the murder of their two daughters. The first two prosecutions were by state authorities in North Carolina. First, Hennis was convicted of the murders in 1986 and he was sentenced to death. The North Carolina Supreme Court reversed that conviction in 1988. Hennis was then retried by North Carolina in 1989, and he was acquitted.

Hennis decided to remain on active duty in the Army after his acquittal, and he retired in 2004. However, retired members of an active component aren’t retired in the traditional sense of the word; they remain in the military, they’re subject to the UCMJ, and their retirement pay isn’t a pension but rather “is reduced compensation for reduced current services.” McCarty v. McCarty, 453 U.S. 210, 222 (1981). And so when advances in DNA allowed investigators to determine with scientific certainty that sperm found in the body of the murdered woman came from Hennis, he was recalled to active duty in 2006 and tried by court-martial for the murders.

He was convicted and, on April 15, 2010, the court-martial sentenced him to death, dishonorable discharge, total forfeitures, and E-1.

After rejecting numerous assertions of error (including jurisdictional challenges) the Army CCA finds the capital sentence appropriate for Hennis, concluding:

We are required to assess the proportionality of appellant’s death sentence. Under Article 66(c), UCMJ, we conclude the approved sentence is correct in law and fact. Further, under the circumstances of this case, including appellant’s rape of one of the murder victims, the vulnerability inherent in the young ages of the other two murder victims, and appellant’s mutilation of all three murder victims, we conclude the adjudged and approved death sentence fits the crimes of which he was found guilty. We further find “the sentence is generally proportional to those imposed by other jurisdictions in similar situations.”

Slip op. at 106 (citations omitted).

In United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page), a unanimous CAAF held that charged offenses may not be used under Mil. R. Evid. 413 to prove an accused’s propensity to commit the charged offenses, and also that the standard instruction given to members regarding how to handle such propensity undermines the presumption of innocence. Since deciding Hills, CAAF has summarily remanded five additional cases for reconsideration in light of Hills.

Separate from those remands, but also the wake of Hills, the Air Force, Army, and Navy-Marine Corps CCA have each decided cases involving the use of charged offenses as evidence to prove the accused’s propensity to commit the charged offenses.

In United States v. Hukill, No. 20140939 (A. Ct. Crim. App. Aug. 16, 2016) (discussed here), the Army CCA concluded that CAAF’s decision in Hills does not apply in judge-alone trials.

In United States v. Ellis, No. 201500163 (N.M. Ct. Crim. App. Aug. 30, 2016) (discussed here) the Navy-Marine Corps CCA applied Hills to reverse the appellant’s convictions of sexual assault upon two different women whose allegations were separated in time by nine months but shared numerous similarities. Ellis was tried before members.

In United States v. Phillips, No. 38771 (A.F. Ct. Crim. App. Sep. 7, 2016) (discussed here), the Air Force CCA reached a similar conclusion to that reached by the Army CCA in Hukill, affirming sex offense convictions in a case where a military judge alone considered the charged offenses as propensity evidence.

Now, in United States v. Bonilla, No. 20131084 (A. Ct. Crim. App. Sep 30, 2016) (link to slip op.), a three-judge panel of the Army CCA goes a step further and affirms convictions by members despite the prosecution’s use of the charged offenses for propensity purposes. Significantly, similar to the facts of Hills, the case involved a single alleged victim where multiple alleged sexual assaults were charged and then each used as proof of the others. The military judge also used the standard Benchbook instruction that CAAF found constitutionally defective in Hills. However, the Army CCA finds these errors to be harmless, distinguishing the facts of Bonilla from those of Hills on five bases:

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A recent published decision of the Air Force CCA, in United States v. Kerns, __ M.J. __, No. 38792 (A.F. Ct. Crim. App. Sep. 22, 2016) (link to slip op.), reaches two significant conclusions.

First, the CCA finds that the appellant’s statements to Air Force investigators, made ten days after he terminated a prior interrogation and asked for a lawyer, were improperly admitted by the military judge because the investigators re-initiated interrogation before expiration of the 14-day cooling-off period required by the Supreme Court in Maryland v. Shatzer, 559 U.S. 98, 110-111 (2010).

Second – and unique to military law – the CCA refuses to undertake an appellate rescue mission that might salvage the statements. Shatzer only applies if both interrogations were custodial, but none of the trial-stage participants considered Shatzer when litigating the admissibility of the appellant’s statements and the military judge made no determination about whether the first interrogation was custodial and started the 14-day clock. The prosecution, of course, had the burden to prove the admissibility of the statements at trial, and the failure to present evidence about the custodial nature of the first interrogation is a failure of proof by the prosecution. See Mil. R. Evid. 304(f)(6). See also 18 U.S.C § 3501; Lego v. Twomey, 404 U.S. 477, 489 (1972). But on appeal:

The Government argues that we should use our Article 66(c), UCMJ, 10 U.S.C. § 866(c), fact-finding power to supplement the military judge’s findings and hold that the 18 January interview was non-custodial.

Slip op. at 9. The CCA declines for numerous reasons including that “a record this undeveloped precludes us from meaningfully exercising our fact-finding power.” Slip op. at 11.

The CCA reverses all but one of the appellant’s convictions and authorizes a rehearing.

Having closed many of its military confinement facilities, the Air Force often relies on civilian jails and prisons to house military inmates. Two years ago, in the companion Air Force cases of United States v. McPherson, 73 M.J. 393 (C.A.A.F. Aug. 21, 2014) (CAAFlog case page), and United States v. Wilson, 73 M.J. 404 (C.A.A.F. Aug. 21, 2014) (CAAFlog case page), CAAF held that the Article 12 prohibition against confining service members in immediate association with non-service member aliens applies even when a service member is confined in a civilian facility. But CAAF also held that a service member must exhaust all administrative remedies prior to seeking judicial relief for a violation of that prohibition.

The Air Force responded to McPherson and Wilson by using solitary confinement to avoid co-mingling. That, predictably, led to other complaints. In United States v. Gay, 74 M.J. 736 (A.F. Ct. Crim. App. Jun. 12, 2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016) (CAAFlog case page), the AFCCA held that solitary confinement (where the appellant was alone 23 hours per day, and suffered other administrative hardships) in a civilian facility, imposed in response to a complaint of co-mingling in violation of Article 12, was not cruel and unusual punishment but is deserving of relief under the CCA’s Article 66(c) sentence-appropriateness power, and CAAF affirmed the CCA’s grant of sentencing relief under such circumstances.

Recently, however, the AFCCA denied relief to an appellant who suffered similar deprivations because “unlike the situation in Gay, Appellant in the present case—despite having mechanisms to do so—made no complaint regarding any condition of his confinement before raising the matter on appeal.” United States v. Garcia, No. 38814, slip op. at 8 (A.F. Ct. Crim. App. Aug. 16, 2016) (link to slip op.). This is not the only factor, however, as the CCA also finds that “nothing regarding Appellant’s confinement strikes us as especially unusual or egregious.” Id.

In United States v. Talkington, 73 M.J. 212 (C.A.A.F. 2014) (CAAFlog case page), CAAF held that because sex offender registration is a collateral consequence of the conviction and not the sentence, a military judge did not err in instructing the members that they could disregard the appellant’s discussion of sex offender registration in his unsworn statement during the sentencing phase of the court-martial.

Talkington was a significant decision, but also a limited one. In particular, the unsworn statement was the only source of information about registration in Talkington, meaning that the issue was a fact not in evidence because “the ‘unsworn statement is not evidence.’” United States v. Marsh, 70 M.J. 101, 104 (C.A.A.F. 2011) (quoting United States v. Breese, 11 M.J. 17, 23 (C.M.A. 1981)).

After CAAF decided Talkington, military judges began to give instructions that functionally told members to disregard registration when determining a sentence. However, in a recent unpublished decision the Army CCA suggests that military judges should go further and “limit unsworn statements to the matters allowed under the rules.” United States v. Feliciano, No. 20140766, slip op. at 9 (A. Ct. Crim. App. Aug. 22, 2016) (link to slip op.).

A footnote elaborates:

Consider the following: Were a military judge to prevent an accused from mentioning sex offender registration during an unsworn statement, such an action will almost certainly be harmless error. Since the panel may be instructed to ignore the information during deliberations, there cannot be prejudice from excluding in the first instance what the panel would be told to ignore in the second.

Id., slip op. at 9 n.4.

In United States v. Henegar, __ M.J. __ (N.M. Ct. Crim. App. Aug. 18, 2016) (link to slip op.), the NMCCA addresses the apparent tension between the Article 56 mandatory minimum punishment of dismissal or dishonorable discharge for a conviction of an attempt to commit certain sex offenses, and language in the Manual for Courts-Martial that states:

Any person subject to the code who is found guilty of an attempt under Article 80 to commit any offense punishable by the code shall be subject to the same maximum punishment authorized for the commission of the offense attempted, except that in no case . . . shall any mandatory minimum punishment provisions apply . . .

MCM, Part IV, ¶4.e.

Writing for the court, Senior Judge Palmer explains that the statute prevails and the mandatory minimum applies:

we cannot effect a Presidential directive which “clearly contradicts the express language of the Code,” even if it purports to “unambiguously give[] an accused greater rights than those conveyed by higher sources[.]” United States v. Davis, 47 M.J. 484, 486 (C.A.A.F. 1998). Indeed, the Rules for Courts-Martial acknowledge that a Congressional statute imposing a mandatory minimum must prevail, even if it precludes a court-martial from adjudging a lesser punishment to the benefit of the accused. See RULE FOR COURTS-MARTIAL 1002, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.) (“[E]xcept when a mandatory minimum sentence is prescribed by the code, a court-martial may adjudge any punishment authorized in this Manual”) (emphasis added).

Here, the appellant pleaded guilty to a specification of attempted sexual assault of a child, Article 120b(b), UCMJ, in violation of Article 80, UCMJ. Congress unambiguously provided in Article 56(b), UCMJ, that punishment adjudged for this offense “must include, at a minimum . . . [a] dishonorable discharge.” Article 56(b), UCMJ, is coherent within a statutory scheme (including Articles 18 and 56(a), UCMJ) that generally allows the President to set limits on punishment. But Congress’s specific mandatory minimum punishment statute prevails over statutes allowing the President to generally limit minimum punishment. We find the President’s statement in MCM, Part IV, ¶4.e, that no “mandatory minimum punishment provisions apply” to Article 80, UCMJ, clearly contradicts Article 56(b), UCMJ, for attempted sexual assault of a child (among other offenses). Thus, we conclude the mandatory dishonorable discharge term, as set forth by Congress, applies to the appellant.

Slip op. at 5-6 (marks in original).

In an unpublished decision in United States v. Ahern, No. 20130822 (A. Ct. Crim. App. Aug. 24, 2016) (link to slip op.), a three-judge panel of the Army CCA interprets Mil. R. Evid. 304(a)(2) which states:

Failure to deny an accusation of wrongdoing is not an admission of the truth of the accusation if at the time of the alleged failure the person was under investigation or was in confinement, arrest, or custody for the alleged wrongdoing.

At issue is the trial counsel’s closing argument that the appellant’s failure to deny sexual abuse of his step-daughter during a pretext phone call with the child’s mother was “because he is guilty.” This issue sparked a lot of discussion when I noted the CCA’s oral argument of the case in this TWIMJ post.

The CCA ultimately affirms the appellant’s child sex assault (and similar offense) convictions because the child’s mother “testified that appellant had repeatedly admitted to having sex with [the child],” the child herself gave “detailed testimony about his misconduct,” the appellant was not silent but rather called the mother’s allegations crazy, and “the same conversations that government counsel argued were evidence of guilt [] were argued by appellant as evidence of his innocence.” Slip op. at 3.

But before reaching that conclusion the CCA makes a first-impression interpretation of Mil. R. Evid. 304(a)(2) and concludes that:

Mil. R. Evid. 304(a)(2) is triggered by an investigation when the accused is aware of the investigation. Whether an accused is aware of an investigation should be determined using the same objective test as is used in the Article 31(b) context. Jones, 73 M.J. at 362 [(CAAFlog case page)].

Slip op. at 11.

The CCA’s analysis is reproduced after the break.

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Articles 120(b)(3)(A) and 120(d) prohibit sexual activity with a person who is incapable of consenting due to impairment by any drug, intoxicant, or other similar substance.

In recent decision in United States v. Newlan, No. 201400409 (N.M. Ct. Crim. App. Sep. 13, 2016) (link to slip op.), a three-judge panel of the NMCCA finds that a military judge erred when he defined impairment under Article 120 as:

“Impaired” means any intoxication which is sufficient to impair the rational and full exercise of the mental or physical faculties.

Slip op. at 8 (quoting instructions). This definition was drawn from language in the Manual for Courts-Martial that defines impairment under Article 111 (drunken or reckless operation of vehicle, aircraft, or vessel). See MCM, Part IV, ¶ 35.c.(6).

Writing for the panel, Judge Rugh explains that:

Article 120(b)(3)(A), UCMJ, does not prohibit engaging in sexual acts with a person who is drunk or impaired by alcohol. Put more plainly, mere impairment is no more the standard under Article 120(b)(3)(A), UCMJ, than the SAPR-perpetuated “one drink and you can’t consent” axiom is the standard. And litigants and military judges who fixate solely on the term “impairment” do so at their peril.

Instead, the statute establishes a required level of impairment. In other words, sexual acts are prohibited only when the person’s impairment rises to the level of rendering him or her “incapable of consenting to the sexual act.” Art. 120(b)(3)(A), UCMJ.

Slip op. at 10 (emphasis in original). By appropriating the Article 111 definition of impaired, “the military judge’s instructions failed to provide the members with an accurate, complete, and intelligible statement of the law.” Slip op. at 12.

The opinion is the latest in a number of recent decisions that reach the blindingly-obvious conclusion that intoxicated or otherwise impaired people can legally consent, despite popular misconceptions to the contrary (see our #9 military justice story of 2015).

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The Air Force CCA has joined the Army and Navy-Marine Corps CCAs in applying CAAF’s decision in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page). Like the Army court, the Air Force court finds that reversal is not required when charged offenses are considered for propensity purposes in a trial by military judge alone.

In Hills, a unanimous CAAF held that charged offenses may not be used under Mil. R. Evid. 413 to prove an accused’s propensity to commit the charged offenses, and also that the standard instruction given to members regarding how to handle such propensity undermines the presumption of innocence.

In United States v. Hukill, No. 20140939 (A. Ct. Crim. App. Aug. 16, 2016) (discussed here), the ACCA concluded that CAAF’s decision in Hills does not apply in judge-alone trials.

In United States v. Ellis, No. 201500163 (N.M. Ct. Crim. App. Aug. 30, 2016) (discussed here), the NMCCA applied Hills to a trial with members, and set aside the findings.

Now, in United States v. Phillips, No. 38771 (A.F. Ct. Crim. App. Sep. 7, 2016) (link to slip op.) (link fixed), the AFCCA reaches a similar conclusion to that reached by the ACCA in Hukill, affirming sex offense convictions in a case where a military judge alone considered the charged offenses as propensity evidence.

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In United States v. Ellis, No. 201500163 (N.M. Ct. Crim. App. Aug. 30, 2016) (link to slip op.), a three-judge panel of the NMCCA applies CAAF’s recent decision in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page), to reverse the appellant’s convictions of sexual assault upon two different women whose allegations were separated in time by nine months but shared numerous similarities.

Finding the same errors as CAAF found in Hills (an abuse of discretion in allowing the prosecution to use charged offenses for propensity purposes, and an instruction to the members about the evidence that undermines the presumption of innocence), the NMCCA concludes:

Having found abuse of discretion and error, we must assess the prejudice to Chief Ellis and determine whether the instructional error was harmless beyond a reasonable doubt. While the Government presented a strong case against Chief Ellis, it suffered some of the same weaknesses that concerned the CAAF in Hills. There was no physical evidence. Other than Ms. LW and Chief TA, none of the eyewitnesses observed sexual contact or sexual acts. Evidence of the actus reus of all but one specification consisted solely of the accuser’s testimony. Trial defense counsel impeached Ms. LW’s allegation that Chief Ellis penetrated her vagina with his penis using her initial statements that he performed oral sex but only attempted vaginal intercourse. The members acquitted Chief Ellis of one specification of abusive sexual contact involving Chief TA, convicting him instead of the lesser included offense of assault consummated by battery and revealing their reasonable doubt about Chief TA’s claim that Chief Ellis touched her breast and buttocks in the bathroom. Finally, trial defense counsel challenged Chief TA on her possible bias, prejudice, or motive to misrepresent stemming from her role as Ms. LW’s victim advocate and her subsequent decision to report her 11-month-old encounter with Chief Ellis as a sexual assault.

The facts of this case prevent us from being certain, beyond a reasonable doubt, that error did not contribute to Chief Ellis’s convictions.

Slip op. at 6.

The CCA sets aside the findings and sentence, authorizing a rehearing.

In United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page), a unanimous CAAF held that charged offenses may not be used under Mil. R. Evid. 413 to prove an accused’s propensity to commit the charged offenses, and also that the standard instruction given to members regarding how to handle such propensity undermines the presumption of innocence.

Last week, in United States v. Hukill, No. 20140939 (A. Ct. Crim. App. Aug. 16, 2016) (link to slip op.), the Army CCA held that CAAF’s decision in Hills does not apply to a judge-alone trial:

This case is far different than Hills as appellant elected to be tried by a military judge sitting alone. Although the military judge earlier in the proceeding ruled that the government could use propensity evidence in a manner found to be in error in Hills, this ruling became moot by virtue of appellant’s election for a bench trial. We do not share appellant’s concern that his “presumption of innocence” was somehow eroded by the military judge’s consideration of propensity evidence. “Military judges are presumed to know the law and to follow it absent clear evidence to the contrary.” United States v. Erickson,” 65 M.J. 221, 225 (C.A.A.F. 2007) (citing United States v. Mason, 45 M.J. 483, 484 (C.A.A.F. 1997)). We are satisfied that his view on the admissibility of propensity evidence under Mil. R. Evid. 413 was harmless beyond a reasonable doubt. We find no risk that the military judge would apply an impermissibly low standard of proof concerning both the presumption of innocence and the requirement that the prosecution prove guilt beyond a reasonable doubt. Simply put, we find nothing in the record to suggest that the military judge did not hold the government to its burden of proving appellant’s guilt beyond a reasonable doubt, or that the military judge applied a lesser standard in adjudicating the charges against the appellant.

Slip op. at 3.

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In a published opinion in United States v. Banks, __ M.J. __, No. 20130948 (A. Ct. Crim. App. Aug. 16, 2016) (link to slip op.), the Army CCA holds that the Government is responsible for all post-trial delay incurred while waiting for the defense to submit matters to the convening authority, except for the maximum of 20 additional days of delay that may be authorized under Article 60(b)(2).

In United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006), CAAF found that three kinds of post-trial delay are presumptively unreasonable: (1) When the convening authority fails to take action within 120 days of the completion of trial; (2) When the case is not docketed at the CCA within 30 days of the convening authority’s action, and; (3) When the CCA’s decision is rendered more than 18 months after docketing of the case.

The first kinds of delay is at issue in Banks, as the convening authority took action 440 after the completion of trial. 153 of those 440 days, however, were spent waiting for the appellant’s defense counsel to submit matters to the convening authority. Article 60(b)(1) dictates that “such a submission shall be made within 10 days” of the accused receiving the record and staff judge advocate’s recommendation, and Article 60(b)(2) permits an extension of time “for not more than an additional 20 days.” Despite these statutory time limits, Army convening authorities often delay taking action to allow defense counsel additional time.

In Banks, the Army CCA finds “no authority for the government to grant an extension beyond twenty [additional] days.” Slip op. at 4. “Accordingly, we cannot relieve the government of their obligation to comply with Moreno.” Id.

The CCA then concludes that for the purposes of calculating the number of days under Moreno, the initial 10-day period and any excess time counts against the Government, while any extension under Article 60(b)(2) counts against the appellant:

[W]e hold that in calculating compliance with Moreno’s 120-day threshold, when considering submissions under R.C.M. 1105 the only time that may be excluded from the calculation is when the accused has requested (and been granted) a twenty day extension in accordance with Article 60(b). As after the authorized time has expired the convening authority is authorized to take action, any additional time taken by the defense will continue to accrue towards the Moreno 120-day presumption of unreasonableness.

Slip op. at 7.

In a published opinion in United States v. Solis, __ M.J. __, No. 201500249 (N.M. Ct. Crim. App. Aug. 11, 2016) (link to slip op.), a three-judge panel of the NMCCA rejects the appellant’s arguments that Article 120(b)(3)(A) – which criminalizes sexual activity with a person who is incapable of consenting due to impairment by an intoxicant – is void for vagueness both facially and as applied.

The decision is reminiscent of the NMCCA’s rejection of similar arguments in United States v. Torres, No. 201300396 (N-M. Ct. Crim. App. Aug. 28, 2014) (discussed here). In Torres the CCA concluded that servicemembers have fair notice that they may be prosecuted for initiating sex with an unconscious person.

The CCA reaches a similar conclusion in Solis, with an important caveat. Writing for the panel Judge Fulton explains that:

[T]he statute does not proscribe sexual acts with impaired people, but rather with people incapable of consenting to the conduct at issue because of their impairment—and even then, only when the inability to consent is known, or reasonably should be known, to an accused.

Slip op. at 5 (emphasis added). The quite-obvious conclusion that the statute does not prohibit sex with any impaired person (including, of course, a drunk person) reminds me of the Army CCA’s decision in United States v. Long, 73 M.J. 541 (A. Ct. Crim. App. Jan. 30, 2014) (discussed here) (finding that the drunk victim was competent to consent, but didn’t). And, of course, CAAF’s decision this term in United States v. Pease, 75 M.J. 180 (C.A.A.F. Mar. 17, 2016) (CAAFlog case page), provided us with a clear and uniform standard of review for a trial-stage finding that a person was incapable of consenting.

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