CAAFlog » Courts of Criminal Appeals » CCA Opinions

In an unpublished opinion in United States v. Edmond, No. 201200168 (N-M. Ct. Crim. App. Apr. 30 2015) (link to slip op.), a three-judge panel of the Navy-Marine Corps CCA reverses a midshipman’s 2011 court-martial convictions for making a false official statement, two specifications of rape, two specifications of aggravated sexual assault, and wrongful sexual contact, in violation of Articles 107 and 120 (press accounts here and here), after concluding that “the appellant was not afforded effective assistance of counsel as guaranteed by the Sixth Amendment.” Slip op. at 19.

Specifically, writing for a unanimous panel, Chief Judge Mitchell finds that:

In the appellant’s case, the evidence was not overwhelming. While there was some medical evidence of bruising supporting the alleged victim’s account of the sexual contact, this case ultimately boiled down to the issue of credibility. It was on this point that the trial defense team failed in several significant ways summarized as follows:

(1) The defense team failed to effectively cross-examine the alleged victim in that it had evidence of inconsistent statements made by XM during the Article 32 Investigation that differed significantly from her testimony at trial but had no mechanism in place to challenge her on cross-examination;

(2) While the trial defense team planted the seed in the minds of the members that the alleged victim told MIDN B yet another account of the sexual assault, they forgot to follow up with this line of questioning after calling her as a witness;

(3) The trial defense team’s attempt to bolster their client’s credibility had the opposite effect when they asked MIDN B if she thought the appellant was trustworthy and she responded in the negative; and

(4) Finally, while we do not second-guess the defense’s tactical decision to put the appellant on the stand, the record strongly suggests that they did so without fully considering or advising him of the ramifications of doing so, including opening the door to the use of his previously suppressed statement, which was replete with inconsistencies, as impeachment evidence.

Based on the foregoing, we have little difficulty concluding that the trial defense team’s level of advocacy fell “measurably below the performance [] (ordinarily expected) of fallible lawyers.” Polk 32 M.J. at 153 (citation omitted).

Slip op. at 17-18. The CCA authorizes a rehearing.

In a published decision in United States v. Chandler, __ M.J. __, No. 20120680 (A. Ct. Crim. App. Apr. 7, 2015) (link to slip op.), the Army CCA finds that a military judge improperly held a post-trial proceeding in revision for the purpose of giving corrected instructions to the members, and allowing them to deliberate anew, on the findings.

The judge improperly instructed the panel on the defense of mistake of fact as to the nature of property at issue in an alleged conspiracy to commit larceny, giving the general intent mistake instruction (requiring that the mistake be objectively reasonable) instead of the specific intent mistake instruction (requiring only that the mistake actually exist). The appellant was then convicted. But the judge realized the mistake when authenticating the record, and ordered a proceeding in revision under R.C.M. 1102, stating:

My proposal will be to reinstruct the members and direct them to once again deliberate on findings in light of the corrected instruction. I will also give counsel an opportunity to re-argue on findings in light of the corrected instruction. Obviously, if there are different findings, the members will also deliberate and vote on a new sentence, provided the accused is found guilty of any offense.

Slip op. at 7. The proceeding occurred, the members were properly instructed, and they again convicted the appellant. But the CCA finds that the post-trial proceeding was void ab initio:

We can think of no matters more substantive than the defenses potentially applicable to a servicemember facing court -martial. Instead of resolving an administrative matter, the post -trial proceeding here more closely resembled a rehearing, but with the same panel—which the judge had no authority to order. The military judge likely understood that his approach was somewhat akin to a rehearing, as he invoked the sentence limitations provisions of R.C.M. 810(d). The hearing could also be viewed as a flawed attempt at reconsideration of findings, for which R.C.M. 924 governs. Contrary to R.C.M. 924, the proceeding occurred after the panel unambiguously announced findings on 10 July 2012, and it occurred at the military judge’s direction instead of a panel member’s proposal.

We endorse initiative-taking by military judges. Such an approach is crucial in our justice system, which favors resolution of disputed issues at trial. We also understand the desire for quickly reaching a solution in the field, instead of waiting for a convening authority or an appellate court to order the same solution. However, our system’s range of post-trial remedies does not include remand to an original finder of fact in order to cure instructional error. This limitation is understandable, since one cannot reasonably expect panel members to set aside their original findings and deliberate anew. Put another way, as the post -trial proceeding began in this case, it was far more likely that the panel would simply validate its earlier findings of guilt; we cannot affirm such a process. Instead, we conclude the military judge erred in directing a proceeding in revision for the purposes of correcting erroneous instructions and directing the same panel to deliberate again. We regard this proceeding as void ab initio under the circumstances and need not address additional procedural peculiarities, including the military judge’s emailing a redacted record of trial to the panel and his denying the defense request to voir dire the panel.

Slip op. at 15-16. Nevertheless, the CCA finds the instructional error harmless.

In an unpublished opinion in United States v. Sabia, No. 20150225 (C.G. Ct. Crim. App. Feb. 25, 2015) (link to slip op.), the Coast Guard CCA contemplates the appropriateness of a sentence of confinement for 150 days, reduction to E-2, and a bad-conduct discharge for the offense of wrongfully communicating a threat, such conduct being to the prejudice of good order and discipline in the armed forces, in violation of Article 134. The convening authority disapproved the adjudged confinement. The opinion doesn’t provide the precise details of the specification, but it indicates that the appellant made some sort of threatening statement to military leaders at Port Angeles whom he did not know, had never met, could not identify, and didn’t threaten by name.

In an opinion written by Chief Judge McClelland, the CCA affirms the sentence as approved. But it seems to be a close call. In particular, a concurring opinion written by Judge Duignan notes that:

Appellant, who was having medical problems, found himself in an escalating chain of circumstances that ultimately led to his court-martial. Homeless, and living out of his car in the Pacific Northwest, Appellant needed help. The record indicates that his command knew of his situation, and might have done more to intervene. Appellant’s threats—although treated with appropriate seriousness by his command—were essentially a cry for help. No one at the command believed that Appellant truly wanted to harm his chain of command. Rather, the record indicates that Appellant was essentially disconnected from his command altogether.

Slip op. at 3.

In United States v. Saunders, No. 2014-15 (A.F. Ct. Crim. App. Apr. 17, 2015) (link to slip op.), the AFCCA grants a Government appeal of a military judge’s ruling that dismissed various charges, including sexual assault charges, against an Air Force Master Sergeant accused of improprieties involving his subordinates. The military judge:

concluded [that] the [accused] had met his burden of raising “some evidence” of apparent unlawful command influence in how the case was brought to trial. He found this burden was met by the following facts which, in his view, constituted “some evidence” of unlawful command influence:

(1) The [accused’s] commander held a meeting before trial where he stated that anyone who violated the UCMJ would be removed from the duty section, and then the [accused] was removed from the duty section; and

(2) The accused testified about statements made by the commander to the effect of, “How would I look to leadership if I did not push this issue?”

After shifting the burden to the government, the military judge stated in both rulings that he was “not convinced beyond a reasonable doubt that the comments upon which [he] based [his] determination (1) are not true, (2) do not constitute unlawful command influence, or (3) will not affect the proceedings.” He also stated:

In consideration of all the evidence considered on the matter, the inherent probability or improbability of the testimony, whether the testimony is supported or contradicted by other evidence in the case, and the credibility of the witnesses, this Court is not convinced beyond a reasonable doubt that the preferral of charges in this case was not tainted by the danger of Unlawful Command Influence.

The military judge did not expressly elaborate on how these facts constituted apparent unlawful command influence relative to the case.

Slip op. at 10. Notably, the CCA notes that the military judge “concluded the commander had expressed his determination of the appellee’s guilt through his statement at the duty section and the subsequent removal of the appellee.” Slip op. at 11. As a remedy, the military judge dismissed the charges with prejudice.

The CCA reverses, finding that the military judge abused his discretion by dismissing the charges with prejudice, “even if the facts found by the military judge rise to the level of apparent command influence.” Slip op. at 12. The court concludes that “because the military judge did not fully discuss the alternative remedies and it is not clear to us that those alternatives would have been insufficient to restore public confidence in the case, we find he abused his discretion by choosing the ‘last resort’ option of dismissal with prejudice.” Slip op. at 13 (citation omitted).

In an unpublished decision in United States v. Rude, No. 20120139 (A. Ct. Crim. App. Feb. 26, 2015) (link to slip op.), a three-judge panel of the Army CCA affirms a sexual assault prosecution where the Government’s theme was that the appellant was “a predator”:

In the government’s opening statement, trial counsel referred to appellant as “a predator . . . lurking on campus” and that he and JP were in search of prey during the course of the party.

Slip op. at 4. And:

The government argued that appellant’s touching of SB2 followed by the assault on SB1 was evidence of their conspiracy to commit rape, that “[JP] and [appellant] were out on the prowl,” that their approach did not work with SB2, so they tried a different approach with SB1.

Slip op. at 7. The appellant was convicted of two separate sexual assaults during one college party at a friend’s house. At trial, the Government sought to use the evidence of each alleged assault to prove the occurrence of the other:

Prior to closing arguments, and during a hearing outside of the presence of the members on the subject of instructions, government counsel objected to the judge’s proposed spillover instruction. Trial counsel essentially argued that the instruction was not appropriate because the evidence of assault against two different women was relevant propensity evidence under Military Rule of Evidence 413: “it shows a propensity of–the man is committing sexual assault against one person, then that shows a propensity that he’s more likely to do it against the other person.”

Slip op. at 5. Nevertheless, writing for the panel Judge Krauss concludes that:

[T]rial counsel never made any reference or argument before the panel members to or about propensity evidence. The government never characterized the evidence as propensity evidence and did not present the evidence relevant to the one charge as evidence of appellant’s propensity or predisposition to criminal activity generally. Rather, trial counsel presented the evidence as simply relevant to establish appellant’s lustful intent.

Slip op. at 11. Perhaps the trial counsel didn’t use the word propensity in argument, but I think that characterizing an accused as “a predator” and saying that he was “out on the prowl” when he committed a pair of assaults is a propensity argument; particularly when counsel admits as much.

In a published decision in United States v. Leblanc, __ M.J. __, No. 38396 (A.F. Ct. Crim. App. Mar. 26, 2015) (en banc) (link to slip op.), the Air Force CCA holds that even though the punitive provisions of a previous version of Air Education and Training Command Instruction (AETCI) 36-2909, Professional and Unprofessional Relationships (2 March 2007), did not comply with all of the requirements of Air Force Instruction 33-360, Communications and Information, for issuance of publications enforceable as punitive under Article 92, the appellant (who pleaded guilty to violations of AETCI 36-2909 for his improper relationships with military trainees) “lacks standing to enforce” the dictates of AFI 33-360. Slip op. at 10.

Judge Teller writes for the court. Senior Judge Mitchell, joined by Judge Contoveros, dissents in part, finding that the Air Force “is bound by those requirements [of AFI 33-360] and cannot prosecute an individual under Article 92(1), UCMJ, 10 U.S.C. § 892(1) for violating a regulation that does not comply with those requirements.” Slip op. at 14.

AETCI 36-2909 prohibits, among other things, sexual relationships between Air Force instructors and trainees. The appellant was an instructor who had multiple such relationships, eventually pleading guilty to violating two paragraphs of the AETCI (in addition to other misconduct). However, on appeal the appellant asserted that his pleas should be reversed because the two paragraphs of the AETCI do not include specific language that the failure to obey them is a violation of Article 92, as so they are unenforceable as punitive under the UCMJ. The appellant’s assertion is based on the requirement of AFI 33-360 that each punitive paragraph in a publication contain such specific language: Punitive Language. Most of the recommended language used in publications does not readily put the reader on notice that the publication is punitive in nature. Use language that expresses the mandatory nature of the provisions, such as “will,” “will not,” “shall,” “shall not,” “must,” “must not,” etc. Paragraphs containing mandatory provisions or prohibitions must state that a failure to obey is a violation of Article 92 of the UCMJ. This statement should accompany each mandatory provision or prohibition, or may, if clear, refer to a series of mandatory provisions or prohibitions listed within a specific paragraph.

Slip op. at 6 (quoting AFI 33-360) (emphasis added). Of note, the AFI was updated after Appellant’s court-martial, however it still includes the requirement that the punitive language “must also be included in the specific punitive paragraph(s) (or sections) of the publication.” ¶, AFI 33-360 (Sep. 25, 2013) (available here).

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In United States v. Ward, No. 15-0059/NA (CAAFlog case page), CAAF is considering is the following issue:

The convening authority issued an instruction that limited court-martial member nominations to personnel only in the pay grades between E-7 and O-5. The lower court found this systematic exclusion of personnel to be error, but harmless. Should this court set aside appellant’s convictions based on the rationale of United States v. Kirkland due to the unresolved appearance of unfairness?

In its opinion in Ward, issued on July 31, 2104 (available here), the NMCCA found that members were excluded on the basis of rank (an improper basis for exclusion), but the court conducted a detailed analysis and concluded that the exclusion was harmless. The court reached the same conclusion (employing the same analysis) in United States v. Lesley, No. 201400271 (N-M. Ct. Crim. App. Feb. 26, 2015) (link to slip op.).

Yet in an opinion issued yesterday, the CCA reverses a conviction for aggravated sexual assault after concluding that the Government failed to meet its burden to prove that the exact same error, cause by the same member selection policy, was harmless:

We find the appellant has established that the instruction improperly excluded potential members from the selection process on the basis of rank. Thus we turn to the Government to determine if it has met its burden to show lack of harm——and find it has not. The Government has provided no evidence upon which this court can conclude the CA properly considered the Article 25, UCMJ, factors in selecting the members for the court-martial, or that he knew he was free to select members not on the list provided by his staff judge advocate (SJA).

In its answer, the Government notes that the COMNAVAIRLANT instruction specifically lists the requirements of Article 25d(2), UCMJ. While that is certainly a good thing, it sheds no light on what advice the SJA provided the CA, or on the selection process followed by the CA himself. We therefore find the Government has failed to meet its burden of showing the improper exclusion of potential members did not materially prejudice the appellant.

United States v. Thompson, No. 201400072, slip op. at 9 (N-M. Ct. Crim. App. Apr. 21, 2015) (link to slip op.) (citations omitted).

I think this a mighty curious result, particularly since the Government counsel for Thompson was also counsel for the Government in Ward and Lesley (so he certainly knew how to win this issue), and the three-judge panel that decided Thompson was composed of the same three appellate military judges who decided Ward, two of whom also participated in the decision in Lesley.

However, I can’t help but I note that the CCA’s opinion in Thompson was issued precisely five weeks after CAAF heard oral argument in Ward.

The terms multiplicity and lesser included offense are have great practical similarity. “The prohibition against multiplicity is necessary to ensure compliance with the constitutional and statutory restrictions against Double Jeopardy . . . Offenses are multiplicious if one is a lesser-included offense of the other.” United States v. Elespuru, 73 M.J. 326, 328 (C.A.A.F. 2014) (citations omitted) (CAAFlog case page). A lesser included offense (LIO) is an offense that is necessarily included within another, greater offense; a determination made by reviewing the elements of each offense to determine if the elements of one are a subset of the elements of the other. See, generall, United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010) (returning CAAF’s LIO jurisprudence to the elements test).

Multiplicity generally arises where an accused is charged with violation of two separate statutes based on a single act, such as an attack that leads in charges of attempted murder (Articles 80 and 118) and assault with a means or force likely to produce death or grievous bodily harm (Article 128(b)(1)). But multiplicity can also arise when an accused is charged with multiple violations of a single statute based on a single course of conduct, such as an attack where every blow results in a separate charge of assault consummated by a battery (Article 128(a)). When the latter occurs, it is necessary to determine if Congress intended the offense defined by the statute to be applied as a “continuous-course-of-conduct offense or as an individual-act offense.” United States v. Neblock, 45 M.J. 191, 197 (C.A.A.F. 1996). In Neblock, CAAF explained that:

If [the offense] is a continuous-course-of-conduct offense as a matter of law, a separate conviction for each alternative method of commission or component of this offense during the course of conduct might not be authorized. If it is a distinct or discrete-act offense, separate convictions are allowed in accordance with the number of discrete acts.

Neblock, 45 M.J. at 197 (citations omitted). So, for example, in a case involving multiple charges of assault, CAAF has held that assault is “a continuous course-of-conduct-type offense and that each blow in a single altercation should not be the basis of a separate finding of guilty.” United States v. Flynn, 28 M.J. 218, 221 (C.M.A. 1989).

The Army CCA recently applied Flynn to conclude that an appellant should not stand twice convicted of aggravated assault in violation of Article 128 for a single encounter during which the appellant beat his wife with a metal stool. In United States v. Clarke, __ M.J. __, No. 20120800 (A. Ct. Crim. App. Mar. 20, 2015) (link to slip op.), Judge Haight wrote for a three-judge panel and concluded that:

Generally speaking, the unit of prosecution for the type of ongoing assault found in this case – an uninterrupted attack comprising touchings “united in time, circumstance, and impulse” – charged under Article 128, UCMJ, as opposed to the specialized assaults charged under Article 120 or 134, is the number of overall beatings the victim endured rather than the number of individual blows suffered. Rushing, 11 M.J. at 98. While we understand there may be valid reasons for separately charging individual blows, we find here that separate convictions for two assaults within the same altercation to be unreasonable. See Morris, 18 M.J. at 451 (quoting United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 225 (1952)) (“‘Whether an aggregate of acts constitute a single course of conduct and therefore a single offense, or more than one, may not be capable of ascertainment merely from the bare allegations of an information and may have to await the trial on the facts.’”); see also United States v. Quiroz, 55 M.J. 334 (C.A.A.F. 2001); Ball v. United States, 470 U.S. 856 (1985). As the provided factual predicate supports but a single assault, we find a substantial basis in law and fact to conform the pleadings to that factual basis and consolidate the two aggravated assault specifications into a single specification.

Slip op. at 2-3. The CCA’s opinion does not explicitly state that the court finds the two specifications to be multiplicious, nor does it mention Neblock.  However, I believe that multiplicity under Neblock (in addition to the separate concept of unreasonable multiplication of charges) is the correct legal framework to analyze charges of multiple violations of the same criminal offense based on a single course of conduct.

In a published decision in United States v. Atkinson, __ M.J. __, No. 201400284 (N-M. Ct. Crim. App. Mar. 26, 2015) (link to slip op.), the NMCCA holds that the appellant was not entitled to credit for pre-trial confinement in a civilian facility, holding in part that “the court-martial lacked jurisdiction to address the appellant’s request for administrative credit based on R.C.M. 305(j)(2) and (k).” Slip op. at 7.

The appellant was placed into the civilian facility after he was apprehended (on a deserter warrant) by military authorities (NCIS) operating with local authorities. The facility was in Wilmington, NC, just a few hours drive away from the appellant’s unit at Camp Lejeune, NC. However, the Government left the appellant in that facility for 62 days, without any R.C.M. 305 review of his confinement, “despite his unit knowing he was there and available for pick up.” Slip op. at 2. Yet when the appellant sought judicial relief for this confinement at trial, his request was denied on jurisdictional grounds.

Disclaimer: I was one of this appellant’s detailed military trial defense counsel, and I litigated this issue at the trial stage.

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The Army CCA’s published opinion in United States v. Sneed, __ M.J. __, No. 20131062 (A. Ct. Crim. App. Mar. 27, 2015) (link to slip op.), is an interesting read. The appellant pleaded guilty, in accordance with the terms of a pretrial agreement, to three specifications of aggravated assault with a means likely to cause death or grievous bodily harm, seven specifications of assault consummated by a battery, and one specification of kidnapping in violation of Articles 128 and 134. He was sentenced to confinement for nine years and a dishonorable discharge. In accordance with the pretrial agreement, the convening authority approved the dishonorable discharge and only six years of confinement.

The appellant’s pleas related to abuse of his girlfriend, who was also a soldier. In particular:

Specialist (SPC) BG, to a variety of emotional and physical abuse. This abuse included an incident where, in the midst of yet another argument [over the appellant’s desire to use BG’s debit card to pay for airfare -zds], appellant shoved a pregnant SPC BG into his closet in the barracks and locked her in for, as he stated, not more than 10 minutes. This act was charged as an act of kidnapping under Article 134, UCMJ. Appellant pled[ed] guilty to the kidnapping as charged.

Slip op. at 2. The kidnapping was the most serious charge the appellant pleaded guilty to committing, as it carries a maximum authorized punishment that includes confinement for life without eligibility for parole. The maximums for each of the aggravated assault specifications is three years; for the battery specifications, six months.

On appeal, the appellant challenged the providence of his plea to the kidnapping offense. Specifically, he asserted that “(1) the judge failed to fully and properly define the offense of kidnapping, and (2) the providence inquiry and stipulation of fact established that appellant’s holding of SPC BG was merely incidental to his attempt to obtain SPC BG’s debit card.” Slip op. at 5. To constitute kidnapping, a “holding . . . must be more than a momentary or incidental detention. . . . Otherwise, as to incidental detentions, a soldier would be subject to conviction and life in prison under Article 134, UCMJ, for an act better described by offenses carrying far lesser punishment.” Slip op. at 5.

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Published decision available here. I discussed the Government’s argument, and characterized it as “untenable” in this post.

The CCA finds:

In response to a show cause order from this court and during oral argument, the Government asserted the United States is allowed 60 days from the issuance of our revised order to seek certification to C.A.A.F. The Government generally asserted that The Judge Advocate General could certify this matter for our superior court’s review under Article 67(a)(2), UCMJ, 10 U.S.C. § 867(a)(2). While the Government’s position centered on the post-trial discovery order issued in this case, the Government indicated that all orders from this court are theoretically subject to the same 60-day period during which a party need not comply with this court’s orders if it believes certification to review the order is appropriate. The Government explained it did not seek an enlargement to comply or a stay of the order’s execution because this court’s orders, like its decisions, are not self-executing and thus are not final until this period has run. We disagree.

Slip op at 4. Additionally:

Counsel have an obligation to “comply promptly with all orders and directives of the court.” A.F. STANDARDS FOR CRIM. JUSTICE, Standard 3-5.2(c) (6 June 2013). This court recently made this point clear. See United States v. Bowser, 73 M.J. 889, 899 (A.F. Ct. Crim. App. 2014), aff’d, No. 15-0289/AF (C.A.A.F. 25 March 2015) (“Short of some completely unusual circumstances not present here, the Government simply does not have the authority to choose which orders of a military judge it will follow and which ones it will not, at least not without facing the threat of remedial action or even punishment.”). If the Government did not understand the message of Bowser before, we make the point plain now: counsel appearing before this court have a duty to obey all orders of this court, except in the extraordinary situation where the court issues an order plainly calling for counsel to engage in unlawful or unethical conduct. It matters not whether the Government disagrees with this court’s order or that a “professional disagreement” (as the Government terms it) arises.

Slip op. at 4 (citation omitted). Moreover:

If the Government wishes to seek review of this court’s orders, it may do so. In the meantime, however, all parties must comply with this court’s orders. No “grace period” is permitted during which a party may simply decide not to comply with an order solely because it is considering whether to seek review of the order. We roundly reject the Government’s view that compliance with orders is not required until the time has elapsed for the party to seek appellate review of the order.

Slip op. at 5 (emphasis added). However:

[O]n the eve of oral argument, the Government belatedly provided declarations responsive to this court’s post-trial discovery order. The Government’s belated compliance does not excuse its earlier actions, particularly when it continued to maintain the position at oral argument that it did not need to comply with this court’s order or even seek a stay of the enforcement of the order to pursue its options for further review. The Government had no legal basis to disobey this court’s order, particularly in light of the recent Bowser decision. Bowser, 73 M.J. 889. Nonetheless, we have elected not to dismiss the charges and specifications or hold government counsel in contempt.

Slip op. at 5-6.

Last week the Air Force CCA issued a published decision in United States v. Fields, __ M.J. __, No. S32239 (A.F. Ct. Crim. App. Mar. 24, 2015) (link to slip op.). The appellant pleaded guilty at a special court-martial to failure to obey a lawful order and wrongful use of cocaine on divers occasions, in violation of Articles 92 and 112a. He was sentenced to confinement for four months, forfeitures for four months, reduction to E-1, and a bad-conduct discharge.

The CCA’s opinion discusses two interesting issues. The first issue involves application of the ultimate offense doctrine to the plea of guilty to failure to obey a lawful order – in this case it was a restriction order. The second issue involves the following totally outrageous conduct by a Master Sergeant (E-7):

After the sentence was announced, the first sergeant, MSgt JB, ordered the appellant into the nearby restroom. SSgt AD was also present. MSgt JB told the appellant that he was reduced to E-1 and that MSgt JB did not want him to be out of uniform. MSgt JB braced himself against the appellant’s shoulder and then, using his hand and either a key or small knife, ripped the stripes off his service dress uniform and then off his shirt. The appellant was visibly upset when he returned to the courtroom. Trial defense counsel immediately reported the incident to trial counsel and the staff judge advocate. Security forces was also notified of the alleged assault. When questioned by security forces, MSgt JB waived his Article 31, UCMJ, 10 U.S.C. § 831, rights and admitted to this conduct with the explanation that he thought the reduction was immediate.

Slip op. at 4. The appellant was an Airman First Class (E-3).

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In United States v. Joseph, No. 201300460 (N-M. Ct. Crim. App. Feb. 19, 2015) (link to slip op.), a three-judge panel of the NMCCA concludes that the finding of guilty of making a false official statement is defective, and must be reversed, because the members:

excepted the following words from the Specification: “made to Naval Criminal Investigative Service agents . . . an official statement to wit.” In place of the excepted language the members substituted the words, “provided an affirmative response to NCIS that she had been raped by [Sgt MP].”

Slip op. at 4. The false statement was an accusation of rape made by the appellant (a female corporal) after she engaged in sexual intercourse with MP (a male, also a corporal at the time). Shortly after that encounter, the appellant discovered MP engaging in sexual intercourse with her female roommate. Then:

After discovering PFC RC [the roommate -z] and Cpl WP [the male -z] together, the appellant left her room and spent the night in her friend, Cpl EM’s, room. Cpl EM testified that the appellant was clearly upset and confided that she caught Cpl WP having sex with her roommate right after she had sex with him. Cpl EM also testified that the appellant said she “was going to do anything to ruin [Cpl WP’s] life.”

Slip op. at 3. A special court-martial composed of officer members convicted the appellant, contrary to her pleas of not guilty, of violating a lawful general order (wrongfully engaging in sexual activity in the barracks) and making a false official statement, in violation of Articles 92 and 107. The members sentenced the appellant to the jurisdictional maximum punishments of confinement for 12 months, reduction to E-1, forfeiture of $1,010.00 pay per month for 12 months, and a bad-conduct discharge. The convening authority approved only 120 days of the adjudged confinement.

Writing for the panel, Senior Judge Fischer finds that the members’ action excepted the element of an official statement from the false official statement charge, resulting in a finding of not guilty of that offense. As a result, the CCA approves only the finding of guilty of the orders violation, and it reduces the sentence to confinement for 30 days, forfeiture of $1,010.00 pay for one month, and reduction in rate to pay grade E-3 (and no punitive discharge).

In United States v. Russell, No. 2014-11 (A.F. Ct. Crim. App. Mar. 3, 2015) (link to slip op.), a three-judge panel of the Air Force CCA denies a Government appeal of a military judge’s ruling that dismissed (what appears to be) a single specification of wrongful use of ecstasy, finding that the appellee was validly discharged when she received her DD-214 and final pay, and rejecting that Government’s argument that “even if delivered, the [discharge] certificate was invalid because it was contrary to [the appellee’s] squadron commander’s intent.” Slip op. at 3.

In Article 56, Congress delegated to the President of the United States the authority to prescribe maximum punishments for offenses under the UCMJ. These maximums are contained in Part IV of the Manual for Courts-Martial. But it’s possible for an accused to be convicted of an offense that does not have a maximum punishment listed in Part IV, and Rule for Courts-Martial 1003(c)(1)(B) provides instructions for how to calculate the maximum punishment for such an offense.

Unlisted offenses are most common under Articles 133 and 134 (where novel charges are possible). But after Congress amended Article 120 effective June 28, 2012, President Obama failed to prescribe maximum punishments for the new offenses until May 15, 2013 (notably, to this day, he has still failed to prescribe model specifications).

That failure caused early problems, including leading one military judge to rule that the maximum punishment for sexual assault in violation of Article 120(b) (2012) is the jurisdictional limit of a summary court-martial (that ruling was reversed after the Government sought extraordinary relief). Other problems persist, in cases such as the recently-decided (but unpublished) United States v. Busch, No. 38530 (A.F. Ct. Crim. App. Feb. 11, 2015) (link to slip op.).

The appellant in Busch pleaded guilty to sexual abuse of a child in violation of Article 120b(c) (2012), in connection with his online communications with a “15-year-old high school student from Florida he never met in person.” Slip op. at 2. Those communication occurred between “on or about 1 February 2013 and 20 May 2013,” slip op. at 1 n.1, raising the issue of the maximum authorized punishment for the offense.

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