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In a published decision in United States v. Fetrow, __ M.J. __, No. 38631 (A.F. Ct. Crim. App. Jan 21, 2016) (link to slip op.), a three-judge panel of the Air Force CCA interprets Mil. R. Evid. 414 (which permits admission of evidence of uncharged similar crimes in child molestation cases) to find that it was improperly applied by the military judge. As a result, the CCA reverses the appellant’s convictions for sexual assault of his step-daughters, for which he was sentenced to confinement for 25 years, reduction to E-1, total forfeitures, and a dishonorable discharge.

Mil. R. Evid. 414 begins:

(a) Permitted Uses. In a court-martial proceeding in which an accused is charged with an act of child molestation, the military judge may admit evidence that the accused committed any other offense of child molestation. The evidence may be considered on any matter to which it is relevant

The rule also provides a definition of child molestation that includes:

(2) “Child molestation” means an offense punishable under the Uniform Code of Military Justice, or a crime under federal law or under state law (as “state” is defined in 18 U.S.C. § 513), that involves:

(A) any conduct prohibited by Article 120 and committed with a child; . . .

Mil. R. Evid. 414(d)(2).

The appellant in Fetrow was accused of sexually assaulting his two stepdaughters. One of the stepdaughters recanted prior to trial, however the appellant was convicted of assaulting both girls based in part upon the testimony of the other stepdaughter. In addition to the testimony of the stepdaughter, the military judge allowed the prosecution to introduce the testimony of the appellant’s 17-year-old biological daughter regarding three unrelated events: (1) when she was 3-4 years years old, the appellant put her in a closet while he had sex with a woman; (2) sometime close to the first event, the appellant touched her on the upper thigh; and (3) a time that she saw the appellant’s penis. Ruling on the admissibility of these three unrelated events, the military judge found that:

there was sufficient evidence for the finder of fact to conclude that Appellant committed the alleged conduct and that such conduct constituted “sexual abuse of a child in violation of Article 120 and 120b” based on the versions of those offenses in effect on the day of trial. The military judge also concluded that the first and third incidents would constitute an indecent exposure under the pre-1 October 2007 version of Article 134, and the second incident would constitute an indecent act with a child under the pre-1 October 2007 version of Article 134. He thus found them all to be similar crimes of child molestation admissible under Mil. R. Evid. 414.

Slip op. at 10. The CCA finds this analysis flawed for two reasons. First, the CCA finds that “the offense of ‘sexual abuse of a child’ is not a violation of Article 120” but rather is a violation of Article 120b which is a separate statute. Slip op. at 11. Second, the CCA find that only Article 120 is incorporated into Mil. R. Evid. 414, while Articles 120a, 120b, and 120c are not. Slip op. at 11. The CCA explains:

To interpret the rule’s reference to Article 120 more broadly than written, so that it also incorporates Article 120a, Article 120b, and Article 120c, would result in a counter-intuitive and an unprecedented expansion of what constitutes “similar crime” evidence in child molestation cases. For example, such a reading would convert a non-sexual stalking offense involving a child under Article 120a into a potential “similar crime” under Mil. R. Evid. 414. If the President’s intent was to significantly expand what types of conduct can be considered for admission for these purposes in the military, or to further differentiate the military rule from the federal rule, one would expect that it would be done explicitly and clearly.

Slip op. at 12. Applying this to the facts of the case, the CCA finds that only the second incident was admissible under Mil. R. Evid. 414, concluding that it could constitute abusive sexual contact in violation of Article 120(d). Further, the CCA finds that the improper admission of the other two incidents was prejudicial in part due to the emphasis placed on them by the trial counsel:

In the prosecution’s opening statement, trial counsel highlighted Appellant’s two purported indecent exposures to his biological daughter to apparently suggest that Appellant’s desires and criminal misdeeds pre-dated the allegations in this trial. In fact, approximately a quarter of trial counsel’s opening statement was devoted to the uncharged conduct involving Appellant’s biological daughter. In addition, during closing argument, trial counsel began their argument with the Mil. R. Evid. 414 incidents and argued that these types of incidents progressed to the allegations involving JB and JH. This propensity evidence was clearly a critical piece of the Government’s case.

Slip op. at. 15. The CCA authorizes a rehearing.

In an interesting decision on a Government petition for extraordinary relief in United States v. Lieutenant Colonel Jones, Military Judge, and Howell, Real Party in Interest, No. 201200264 (N-M. Ct. Crim. App. Dec. 29, 2015) (en banc) (link to slip op.), the Navy-Marine Corps CCA splits 4-4 (one judge did not participate) to grant only a small part of the relief requested by the Government.

Our #4 Military Justice Story of 2014 included discussion of the Marine Corps case of United States v. Howell, in which the appearance of unlawful command influence led to the reversal of a sexual assault conviction. The CCA authorized a rehearing, and the accused was restored to his rank of E-6 and to full duty pending that second trial. However, even though he wore E-6 rank insignia and performed commensurate duties, the accused was only paid at the E-1 rate (based on the Government’s interpretation of the applicable military pay statutes).

The accused complained about his pay, asserting that he was entitled to be paid as an E-6, and the military judge agreed. The military judge then found that the Government’s actions constituted illegal pretrial punishment in violation of Article 13, and he ordered that the accused receive credit against any sentence to confinement in the form of one day of confinement credit for each day of pay at the E-1 rate beginning on the date the original findings and sentence were set aside.

The trial proceeded and the accused was convicted and sentenced to confinement for nine years, reduction to E-1, total forfeitures, and a dishonorable discharge. The military judge’s ruling resulted in approximately 11 months of confinement credit to the accused. The Government then sought extraordinary relief from the CCA, prior to the convening authority taking action in the case.

The CCA’s lead opinion, authored by Judge Marks, finds that the military judge erred only in setting the start date for the credit as the date when the findings were first set aside, and that the credit shouldn’t begin until the date accused was released from confinement. However, Judge Marks concludes that the military judge “did not usurp his judicial power by ruling on SSgt Howell’s complaint of illegal pretrial pay deprivation.” Slip op. at 14.

The dissenting opinion, authored by Senior Judge Brubaker, would reverse the military judge entirely:

I would have found it improper to grant any credit here. Unlike cases relied on by the majority, this case does not implicate punitive actions by command or detention officials – or any other government officials. It presents, instead, a pure pay entitlement question. In my view, the military judge misused Article 13 to litigate and remedy the correctness of an agency’s good faith pay entitlement determination.

Slip op. at 16. Senior Judge Brubaker concludes that “such disputes belong in Congressionally-designated Article III courts.” Slip op. at 17.

The accused filed a writ-appeal petition at CAAF on January 19, 2016.

In an opinion released yesterday in DB v. Colonel Lippert, Military Judge, and Ducksworth, Real Party in Interest, No.  201507690 (A. Ct. Crim. App. Feb. 1, 2016) (link to slip op.) (also available here), a three-judge panel of the Army CCA grants the petition of an alleged victim of sexual assault and reverses a military judge’s ruling that ordered her mental health records produced for an in camera review and then disclosed to the defense.

Writing for the panel, Judge Wolfe characterizes the problems in the case as “manifold,” slip op. at 6, and concludes that the military judge committed three errors.

First, the CCA finds that military judge improperly ordered the production of the alleged victim’s mental health records for an in camera review without first conducting a hearing under Mil. R. Evid. 513(e). Significantly, Judge Wolfe explains that the military judge ordered production of the records even “prior to the defense filing a motion for the production of the records.” Slip op. at 6. The defense later filed such a motion, but it “did not attempt to meet the procedural requirements set forth in the amended [Mil. R. Evid. 513(e)] and, in fact, explicitly disavowed them as being applicable.” Slip op. at 9.

Next, the CCA faults military judge for concluding that because the records include one unprivileged document (a journal entry that state law required be reported to authorities), “all of petitioner’s mental health records were subject to review.” Slip op. at 11. In particular:

[T]he military judge’s finding that because petitioner’s mental health records yielded one (unprivileged) inculpatory document, there was a reasonable likelihood that the remaining records would yield admissible defense information was clearly erroneous.

Slip op. at 13.

Finally, the CCA concludes that the military judge failed (in numerous ways) to apply the procedural requirements of Mil. R. Evid. 513(e), which were revised by Section 537 of the FY15 NDAA (discussed here) and Executive Order 13696 (discussed here).

The CCA refuses the petitioner’s request to declare the records inadmissible, instead merely reversing the military judge’s Mil. R. Evid. 513 ruling while permitting further proceedings to consider the records.

Article 120(b) (sexual assault) and (d) (abusive sexual contact) prohibit the commission of a sexual touching upon another person under various circumstances, including when the accused:

commits a sexual act upon another person when the person knows or reasonably should know that the other person is asleep, unconscious, or otherwise unaware that the sexual act is occurring

Article 120(b)(2) (emphasis added), and when the accused:

commits a sexual act upon another person when the other person is incapable of consenting to the sexual act due to—

(A) impairment by any drug, intoxicant, or other similar substance, and that condition is known or reasonably should be known by the person; or

(B) a mental disease or defect, or physical disability, and that condition is known or reasonably should be known by the person;

Article 120(b)(3) (emphasis added).

In a recent unpublished decision in United States v. Mohead, No. 201400403 (N-M. Ct. Crim. App. Oct. 29, 2015) (link to slip op.), a three-judge panel of the NMCCA considers the difference between these two offenses in a case involving a victim who was asleep at the beginning of the encounter and awake (and resisting) at the end, for which the Government charged the appellant with both offenses in order to address his conduct both before and after the victim awoke. The CCA affirms the finding of guilt involving a sleeping person, but reverses the finding of guilt involving a person incapable of consenting, reasoning that:

[The victim’s] actions upon waking indicate she was then capable of consenting despite the earlier alcohol consumption. While trying to “reason with” the appellant, she articulated her clear understanding of what was happening, that she thought it was wrong, and that she did not consent. While his actions may have constituted a different sort of sexual assault, based on this record and these facts we are not convinced beyond a reasonable doubt of the appellant’s guilt for Specification 1 [sexual assault of a person incapable of consenting due to impairment by alcohol]. Thus we will set aside the finding and dismiss that specification.

Slip op. at 7.

The CCA’s opinion highlights that a person who manifests lack of consent (through physical resistance, verbal protest, or otherwise) is necessarily capable of consenting. A sexual touching of such a person may well be a sexual offense, but it is not one involving a person who is incapable of consenting.

In the certified Air Force case of United States v. Chin, No. 15-0749/AF, CAAF is considering whether a CCA can use its Article 66(c) authority to grant relief for an unreasonable multiplication of charges despite the existence of a pretrial agreement with a term that waives the issue. In Chin, the Air Force CCA acknowledged that the issue was waived but nevertheless granted relief because “the unreasonable multiplication of charges [is] so plainly presented in this case,” and because “the totality of the circumstances presented here convinces us that the charging scheme grossly exaggerates the appellant’s criminality.” United States v. Chin, No. 38452, slip op. at 6 (A.F. Ct. Crim. App. Jun. 12, 2015).

I discussed the CCAs decision in Chin and the JAG’s certification in this post.

The Air Force CCA recently applied Chin to reach a similar conclusion in United States v. Jeffers, No. 38664 (A.F. Ct. Crim. App. Oct. 28, 2015) (link to slip op.). The appellant in Jeffers pleaded guilty to both involuntary manslaughter and negligent homicide for the death of a fellow Airman in a drunk driving incident. A pretrial agreement included a provision waiving all waivable motions. Nevertheless, the appellant asserted on appeal that he cannot be convicted twice for a single death.

Writing for a three-judge panel of the CCA, Chief Judge Allred begins:

Ordinarily, an affirmative waiver of a claim of multiplicity and unreasonable multiplication of charges would end our inquiry. As we recently held, however, Article 66(c), 10 U.S.C. § 866(c), empowers the service courts to consider claims of multiplicity or unreasonable multiplication of charges even when those claims have been waived. United States v. Chin, ACM 38452 (recon) (A.F. Ct. Crim. App. 12 June 2015) (unpub. op.). . . .

Because of the unreasonable multiplication of charges so plainly presented in this case, we elect to exercise our plenary, de novo power of review to consider whether convictions for both involuntary manslaughter and negligent homicide should be approved.

Jeffers, slip op. at 3.

Chief Judge Allred explains that “Appellant’s convictions for involuntary manslaughter and negligent homicide are not multiplicious,” because “each provision requires proof of a fact which the other does not.” Slip op. at 5 (citations omitted). However:

Conducting a Quiroz analysis in the case at bar, we conclude that involuntary manslaughter and negligent homicide constitute an unreasonable multiplication of charges. We note in particular that the two charges are not aimed at distinctly separate criminal acts but address a single act of Appellant in causing the death of A1C DF. Under the totality of the circumstances, this charging scheme grossly exaggerates Appellant’s criminality. Pursuant to our broad Article 66(c), UCMJ, authority, we find that Appellant’s conviction for negligent homicide should not be approved.

Slip op. at 6. The CCA affirms the sentence as approved by the convening authority.

In a pair of recent published decisions, the Army CCA addresses the standard of review to be applied when an appellant asserts for the first time on appeal that a military judge should have given a certain instruction to the members.

First, sitting en banc in United States v. Davis, __ M.J. __, No. 20130996 (A. Ct. Crim. App. Nov. 25, 2015) (link to slip op.), the CCA holds that the failure of the defense to request an instruction forfeits the issue absent plain error. Writing for the majority, Judge Wolfe explains that:

Accordingly, for mandatory instructions under R.C.M. 920(e)(1)-(3), a military judge retains the sua sponte duty to instruct on defenses raised by some evidence. For non-mandatory instructions under R.C.M 920(e)(7) a military judge possesses substantial discretion in deciding what instructions to give. United States v. Damatta-Olivera, 37 M.J. 474, 478 (C.M.A. 1993). While a military judge “has wide discretion” as to the “form” of the instruction, United States v. Behenna, 71 M.J. 228, 232 (C.A.A.F. 2012), whether an instruction is a correct statement of the law is reviewed de novo. United States v. Ivey, 53 M.J. 685 699 (Army Ct. Crim. App. 2000) aff’d on other grounds, 55 M.J. 251 (C.A.A.F. 2001). Nevertheless, in the case of any unpreserved error, the failure to request or object to an instruction on a defense forfeits the matter, absent plain error.

Slip op. at 9. A concurring opinion authored by Judge Penland concludes that plain error review is the appropriate standard in the absence of an objection, but that “an appellant does not forfeit the benefit of this instruction by failing to request it or failing to object to a list of instructions which omits it.” Slip op. at 14.

Notably, Rule for Courts-Martial 920(f) specifically permits plain error review of a missing instruction:

(f) Waiver. Failure to object to an instruction or to omission of an instruction before the members close to deliberate constitutes waiver of the objection in the absence of plain error. The military judge may require the party objecting to specify of what respect the instructions given were improper. The parties shall be given the opportunity to be heard on any objection outside the presence of the members.

Judge Wolfe’s majority opinion explains why the use of the term waiver in the Rule is wrong:

We start our analysis with the promulgation of the rules for court-martial in the 1984 Manual for Courts-Martial, United States (1984 ed.) [hereinafter MCM, 1984]. Rule for Courts-Martial 920(f) states that “[f]ailure to object to an instruction or to an omission of an instruction before the members close to deliberate constitutes [forfeiture] of the objection in the absence of plain error.” The drafter’s analysis to R.C.M. 920(f) indicates a specific intent to adopt the federal practice in this area. See MCM, 1984, R.C.M. 920(f) Analysis at A21-61 (stating that the rule is based on Federal Rule of Criminal Procedure (Fed. R. Crim. P.) 30). Notably, such a rule is in accordance with the mandate of Article 36, UCMJ, that the President may prescribe rules which shall, as far as practicable, “apply the principles of law generally recognized in the trial of criminal cases in the United States district courts.”

Slip op. at 5-6 (modifications in original) (emphasis added). A footnote explains:

Rule for Courts-Martial 920(f) continues to use the word “waiver.” For consistency, and in fidelity to the analytical construct set forth by our superior court, we will use the correct term of “forfeiture.” United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009) (“Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the ‘intentional relinquishment or abandonment of a known right.’ The distinction between the terms is important. If an appellant has forfeited a right by failing to raise it at trial, we review for plain error. When, on the other hand, an appellant intentionally waives a known right at trial, it is extinguished and may not be raised on appeal.”) (internal citations and quotations omitted).

Slip op. at 6 n.6.

The issue in Davis was whether the military judge erred in failing to sua sponte give a mistake of fact as to consent instructions, and the CCA unanimously finds that the judge did not err in part because:

the entire defense case was directed not at claiming that the sexual act was consensual (or that appellant mistakenly believed it to be so). Rather, the overwhelming thrust of the defense case was that the sexual act never happened at all.

Slip op. at 12.

But a three-judge panel of the CCA reaches a different conclusion when considering whether a military judge should have given self-defense and defense of property instructions, in United States v. Viers, __ M.J. __, No. 20130847 (A. Ct. Crim. App. Nov. 30, 2015) (link to slip op.).

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In an unpublished opinion in United States v. Starovoytov, No. 38609 (A.F. Ct. Crim. App. Oct. 8, 2015) (link to slip op.), authored by Chief Judge Allred, a three-judge panel of the Air Force CCA accepts a “pretrial agreement provided no cap on the punishment Appellant could receive at his court-martial.” Slip op. at 3.

The appellant pleaded guilty to 5 charges (containing 18 specifications) “involving sodomy with children between the ages of 12 and 16, aggravated sexual abuse of children, abusive sexual contact of a child, indecent liberties with children, possessing and producing child pornography, and providing alcohol to persons under the age of 21, in violation of Articles 120, 125, and 134.” Slip op. at 1. He was sentenced to confinement for 50 years, reduction to E-1, total forfeitures, and a dishonorable discharge. The convening authority approved the adjudged sentence.

On review, the appellant asserted that he received a de minimus benefit from the pretrial agreement, warranting reduction of his sentence by the CCA. The appellant also asserted that “the pretrial agreement violated notions of fundamental fairness or public policy.” Slip op. at 4. The CCA rejects both contentions, with Chief Judge Allred explaining that the negotiated dismissal of two additional specifications (including a specification alleging sodomy with a child under twelve, for which the maximum authorized punishment includes confinement for life) was a benefit. Further:

The military judge properly ensured that Appellant understood the pretrial agreement and had freely and voluntarily entered into it. Appellant had no right to a pretrial agreement at all, nor to a sentence cap or any other promise by the convening authority. The decision whether to join Appellant in a pretrial agreement, or whether to agree to limit his punitive exposure, was within the sole discretion of the convening authority. Knowing the terms of the pretrial agreement and that there was no cap on his sentence, Appellant voluntarily elected to plead guilty.

Slip op. at 4. The CCA also rejects the appellant’s claim that his trial defense counsel were ineffective.

A footnote explains that the maximum authorized punishment for the offenses to which the appellant pleaded guilty was: “a dishonorable discharge, confinement for 290 years and 90 days, forfeiture of all pay and allowances, and reduction to E-1.” Slip op. at 4 n.6.

Last term, in United States v. Blouin, 74 M.J. 247 (C.A.A.F. 2015) (CAAFlog case page), a sharply-divided CAAF reversed an appellant’s pleas of guilty for the wrongful possession of child pornography consisting of three images depicting a young girl posing provocatively in undergarments (but no sexual activity or full nudity). Despite not showing full nudity or sexual activity, such images may still constitute child pornography (as defined by Title 18 and by the President under Article 134) if they involve a lascivious exhibition of the genitals or pubic area. Whether a particular image involves such an exhibition is subject to a six-factor analysis commonly known as the Dost factors, one of which is “whether the child is fully or partially clothed, or nude.” United States v. Roderick, 62 M.J. 425, 429-30 (C.A.A.F. 2006) (citing United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986), aff’d sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987)).

In Blouin (an Army case), the Army CCA affirmed the appellant’s guilty pleas by holding that nudity is not required for an image to constitute child pornography. To reach this decision, the CCA relied on a series of decisions originating in the Third Circuit that analyzed the Title 18 definition of child pornography: United States v. Knox, 977 F 2d. 815, (3d Cir. 1992), vacated and remanded, 510 U.S. 939 (1993) (Knox I);United States v. Knox, 32 F.3d at 736, (3d Cir. 1994) (Knox II).  Specifically, in Knox II the Third Circuit held that the “federal child pornography statute, on its face, contains no nudity or discernibility requirement, that non-nude visual depictions, such as the ones contained in this record, can qualify as lascivious exhibitions.” 32 F.3d at 737.

CAAF reversed in a 3-2 decision. In an opinion authored by now-Chief Judge Erdmann, the majority held that the plea inquiry conducted by the military judge was inadequate. The majority also rejected the CCA’s application of Knox. Yet while Knox was rejected, Chief Judge Erdmann’s opinion did not hinge on the absence of nudity in the images at issue. Rather, it hinged on a part of the Title 18 statute that requires that digital images must be graphic (meaning that the genitals or pubic area can be viewed) in addition to involving a lascivious exhibition, “because of the constitutional danger that the images might not be of actual children.” Blouin, slip op. at 8 (citing S. Rep. No. 108-2, at 6-7, 13). CAAF rejected the plea because this requirement was not adequately explained to the appellant.

Recently, the Army CCA revisited the issue of non-nude images in an unpublished decision in United States v. Cuccaro, No. 20130338 (A. Ct. Crim. App. Sep. 28, 2015) (link to slip op.). The appellant in Cuccaro was convicted of wrongful possession of child pornography (in violation of Title 18) for two images showing the 12-year-old sister of a fellow soldier. The images both appeared to have been taken by the girl herself, with one showing little more than a silhouette and the other a topless photo (in which she was wearing shorts). Considering these images, the CCA finds that:

EC’s genitals and pubic area are not exposed, nude, or discernible. Furthermore, we find contrary to the government’s assertion that EC’s “pubic area is in the image and discernible by her form fitting shorts.” Also, the focal point of this image is clearly not the girl’s shorts; rather, it is her exposed breasts.

Applying the applicable standards, we find neither image (b) nor (d) depicts a lascivious display of a minor’s genitalia and, therefore, neither image amounts to child pornography as defined by 18 U.S.C. §2256(8). See Dost, 636 F.Supp 828; Blouin, 74 M.J. 247; Roderick, 62 M.J. 425.

Slip op. at 9.

In a published decision in United States v. Stevens, __ M.J. __, No. 201400330 (N-M. Ct. Crim. App. Nov. 10, 2105) (link to slip op.), a three-judge panel of the NMCCA holds that “electronic media without corporeal form do not fall within the ambit of Article 121.” Slip op. at 4.

The appellant pleaded guilty to numerous specifications of larceny and attempted larceny based upon his use of other Marines’ credit card information to:

make online purchases of what the Government styled “electronic media.” The “media” included an audiobook and music downloaded to his iPhone, video games to his Sony PlayStation, and two “Boatloads of 2400 donuts” for use as virtual currency in a smart phone game based on the television show “The Simpsons.”

Slip op. at 2. The NMCCA reverses these pleas on the basis that Article 121 larceny requires property in corporeal form:

We find no further guidance in military case law on whether electronic media as alleged here can be the object of larceny under Article 121. But – saddled with a statute anchored to common law developed before electronic media even existed – we conclude that electronic media without corporeal form do not fall within the ambit of Article 121.

The property the appellant obtained using others’ money was intangible. The “donuts” in the Simpsons game – to pick the easiest example – could not be picked up, touched, or carried away because they were not real. They were conceptual, merely entitling the person who paid the fee for them to additional game play. When the appellant obtained them through fraud, these “donuts” existed and had value in the cyber world, but they had no corporeal existence in ours. Similarly, the music, audiobooks, and game software had no physical form, but instead represented the vendors’ willingness to allow the items to be downloaded – copied – for a fee.

Slip op. at 4.

The CCA’s conclusion that electronic media cannot be the object of an Article 121 larceny seems very sensible. However, I think the CCA’s focus on the intangible nature of the property is overly complicated (particularly since money may also be intangible but still the proper object of a larceny). I think a better (and simpler) view is that the appellant stole entertainment services, which is properly punished under Article 134 as obtaining services under false pretenses. See ¶ 78, MCM (“False pretenses, obtaining services under”). The false pretenses is the fraudulent use of the credit information (as a credential; similar to the misuse in United States v. Endsley, 73 M.J. 909 (A. Ct. Crim. App. Oct. 17, 2014) (discussed here), reversed, 74 M.J. __ (C.A.A.F. Jan 14, 2015) (discussed here)).

An analogous situation would be if the appellant had wrongfully used the credit information to obtain access to a book reading (in place of the audiobook), a musical performance (in place of the music download), and a video arcade (in place of the games).

In an unpublished decision in United States v. Maliwat, No. 38579 (A.F. Ct. Crim. App. Oct. 19, 2015) (link to slip op.), a panel of the the Air Force concludes that:

Congress and the courts have repeatedly said that the prior sexual misconduct of an accused is relevant to whether the accused committed the charged offenses. This includes the use of evidence of other charged sexual offenses to demonstrate propensity under Mil. R. Evid. 413.

Slip op. at 9 (citations omitted). In Maliwat, the charged sexual offenses involved two separate women, and the military judge instructed the members that if they found that a preponderance of the evidence supported the allegations then they could use that evidence as evidence the appellant’s propensity to commit sexual assault. The panel then convicted the appellant of the assault of one of the women, but acquitted him of the assault of the other.

The AFCCA joins two other CCAs in concluding that the charged sexual offenses may be used as evidence of propensity to commit the charged sexual offenses. The Army CCA reached that conclusion in United States v. Barnes, __ M.J. __, No. 20120308 (A. Ct. Crim. App. May 8, 2015) (discussed here), review denied, __ M.J. __ (C.A.A.F. July 28, 2015), and the NMCCA reached that conclusion in United States v. Bass, 74 M.J. 806 (N-M. Ct. Crim. App. Aug. 18, 2015) (discussed here).

A recent unpublished and per curiam decision by a three-judge panel of the Navy-Marine Corps CCA raises a serious concern: A military judge’s use of a prosecutors’ case tracking system.

On 9 October 2014, the appellant signed a PTA, agreeing to plead guilty to four specifications of possession and one specification of receipt of child pornography before a military judge. In return, the CA agreed to suspend any awarded confinement in excess of two years. While preparing for trial, the judge logged into Case Management System (CMS), the Navy’s online court-martial management database. Looking for confirmation of the appellant’s arraignment, the judge accessed a tab where court-martial milestone dates are recorded. While scanning that screen, the judge inadvertently stumbled upon a data entry he recognized as a PTA term capping confinement. The judge exited CMS and notified trial and defense counsel of the accidental disclosure via email.

United States v. Torres, No. 201500117, slip op. at 2 (N-M. Ct. Crim. App. Oct. 29, 2015) (link to slip op.) (emphases added). The appellant in Torres pleaded guilty to numerous offenses pursuant to a pretrial agreement, and then on appeal asserted that his trial defense counsel was ineffective for failing to thoroughly investigate the military judge’s actions or move for recusal. The CCA rejects the claim, finding neither deficient performance nor prejudice. But the opinion notes that:

the military judge invited voir dire from both counsel. TDC began his voir dire by apologizing that he had not seen the data entry at issue, because he did not have access to CMS. The record contains no indication that TDC requested access to CMS or a screen shot or printout of the entry. The judge recalled the CMS entry being five or six words announcing that parties had reached a PTA and the maximum sentence.

Slip op. at 2-3 (emphasis added).

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In United States v. Benjamin, No. 20130092 (A. Ct. Crim. App. Oct. 29, 2015) (link to slip op.), a three-judge panel of the Army CCA finds that the appellant – a retirement-eligible Chief Warrant Office 3 who was convicted of forcible rape and adultery, and sentenced to confinement for ten years and total forfeitures but not a dismissal – was prejudiced by his military defense counsel’s (apparent) failure to properly submit a post-trial request for resignation for the good of the service (RFGOS) that could have resulted in the appellant’s release from post-trial confinement.

The appellant “contends he was denied effective assistance of counsel during the post-trial portion of his case because his trial defense counsel failed to properly submit a request for resignation to the convening authority following his conviction.” Slip op. at 2.

The CCA grants relief without making an explicit finding deficient performance by counsel:

Without reaching the ultimate issue of ineffective assistance of counsel, we conclude post-trial error and a colorable showing of possible prejudice have been sufficiently established. As a result, we set aside the action of the convening authority to provide appellant the requested opportunity to submit a resignation request to the Secretary of the Army through the convening authority.

Slip op. at 2. Interestingly, the CCA’s opinion notes that the appellant’s defense counsel did request “that the ‘Convening Authority disapprove the findings and sentence adjudged at the general court martial . . . and instead grant CW3 Wendell Benjamin’s request for resignation, conditioned on the disapproval of the findings and sentence.’” Slip op. at 3 (quoting clemency request). However,

The clemency submission did not specifically reference either AR 600-8-24 or AR 635-200 nor was the request for resignation submitted on the form or format required by controlling regulations. The convening authority did not formally recommend approval or disapproval of the “resignation request” nor was anything forwarded to the Secretary of the Army.

Slip op. at 3. The CCA concludes its decision by explaining that it “solely address[es] the appellant’s right to formally and properly submit a post-trial RFGOS request through the convening authority to the Secretary of the Army.” Slip op. at 6.

In a Government interlocutory appeal in United States v. Henning, No. 20150410 (A. Ct. Crim. App. Sep. 3, 2015) (link to slip op.), a three-judge panel of the Army CCA reverses a military judge’s ruling that suppressed DNA evidence in a sexual assault case. Specifically:

The alleged victim, SLN, reported that appellee raped her. [The appellee] denied any and all sexual contact with SLN. Genetic material was recovered from the underwear SLN wore the evening in question. The Kansas City Police Crime Laboratory (KCPCL) conducted deoxyribonucleic acid (DNA) testing on that genetic material. After testing and analysis, the KCPCL reported that [the appellee] could not be excluded as a potential minor contributor to the tested sample. Furthermore, the KCPCL is of the opinion that approximately 1 in 220 unrelated individuals in the general population would be a match to the minor contributor’s profile. [The appellee] was charged with the rape of, and other sexual crimes against, SLN.

Slip op. at 1-2. Additional notable facts include that the genetic material tested was “an exceedingly small quantity,” slip op. at 5, and that “according to KCPCL, the two other males present in SLN’s home on the night in question were both excluded after comparison to the DNA profile.” Slip op. at 2 n.3.

The defense moved to suppress any evidence about the DNA analysis on the basis that it “does not meet the requirements for expert testimony established by Military Rule of Evidence 702.” Slip op. at 2 (marks omitted). The military judge granted the motion, concluding in part that the formula that the laboratory used to draw conclusions about the DNA was not reliable, that the ensuing battle of the experts would create a trial-within-a-trial, and that:

9. “Using the 1 in 220 statistic, in a population as small as Weston, Missouri [the location of the alleged assault –ZDS] (1,641 in the 2010 census (citation omitted)), only 7 people could be contributors to the genetic material in Mrs. [SLN]’s underwear.”

10. Because the “Government is sure to point out that of those seven possible people, only one was in Mrs. [SLN]’s house, . . . the probative value is substantially outweighed by the danger of unfair prejudice, misleading the panel members, and waste of time.”

Slip op. at 6 (quoting military judge’s ruling) (all marks other than my notation are in original).

The Government appealed and the CCA reverses by concluding that some of the judge’s findings of fact (regarding the procedure used by the laboratory) were clearly erroneous and also that his conclusions of law were erroneous.

The CCA’s opinion might reach the right result, however it will likely have unintended consequences that will fuel some (unfair) criticisms of the military justice system.

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In a published opinion in United States v. Catano, No. 2015-04, __ M.J. __ (A.F. Ct. Crim. App. Oct. 14, 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 suppressed the accused’s statements to his first sergeant, additional statements made at a hospital, and the results of a probable cause urinalysis, because of the provisions of Air Force Instruction 44-121 that provide protections for an Airman who “voluntarily disclose[s] evidence of personal drug use or possession to the unit commander, first sergeant, substance use/misuse evaluator, or a military medical professional.” The accused in Catano made statement that included the admission: “I’m addicted to heroin.” Slip op. at 7.

The CCA finds that the military judge did not abuse her discretion in suppressing the evidence based upon the protections of AFI 44-121. Notably, the CCA’s decision includes consideration of the fact that after the military judge issued her initial ruling and the prosecution gave notice of its intent to appeal, the military judge:

issued a 6-page supplemental ruling that incorporated the entirety of her original ruling and added several findings of fact and conclusions of law. Her ultimate conclusion was unchanged.

Slip op. at 2. The Government asked the CCA to strike the supplemental ruling, asserting that “the automatic stay provision related to government appeals divested the military judge of jurisdiction over the court-martial once the notice of appeal was filed.” Slip op. at 2. But the CCA denied the motion and in its opinion it finds that a “military trial judge may sua sponte reconsider a ruling or order after notice of an Article 62, UCMJ, appeal and before the record of proceedings is authenticated.” Slip op. at 5.

Notably, in reaching this conclusion, the CCA describes the Government’s position in very harsh terms:

The Government expresses concern that the military judge amended her initial ruling in an effort “to strengthen her ruling with additional facts and analysis so that she would not be overturned.” Whether the changes found in the supplemental ruling favor the Government or Appellee is not the measure by which we determine the authority of the military judge to reconsider a prior ruling. We doubt the Government would object if the military judge had reconsidered her ruling and ruled in favor of the Government.

Slip op. at 6 (emphasis added).

In United States v. Riggins, No. 15-0334/MC (CAAFlog case page), CAAF is considering whether the offense of assault consummated by a battery in violation of Article 128 is a lesser included offense of the offenses of sexual assault in violation of Article 120(b) (2012) and abusive sexual contact in violation of Article 120(d) (2012).

Such a conviction was at issue in United States v. Bridenstine, No. 201500041 (N-M. Ct. Crim. App. Oct. 29, 2015) (link to slip op.), as the appellant was convicted contrary to his pleas of not guilty of assault consummated by a battery as a lesser included offense of sexual assault of a person who was incapable of consenting due to impairment by a drug, intoxicant, or similar substance. The general court-martial – composed of members with enlisted representation – sentenced the appellant to confinement for six months, reduction to E-1, forfeiture of $765.00 pay per month for 6 months, and a bad-conduct discharge (six months is the maximum authorized confinement for the offense).

But a three-judge panel of the NMCCA finds the evidence factually insufficient to support the conviction, and reverses the conviction. The facts of the case are somewhat bizarre, but the panel’s conclusion is straightforward:

Although there was evidence SR CW was intoxicated, we find no compelling evidence that she was so drunk as to prevent her from expressing her lack of consent to the touching (here, the sexual activity with the appellant). Every Government witness who saw her drinking that evening (Cpl DR, Capt BP, and Capt CM) testified that SR CW was neither slurring her words nor stumbling, that she was engaging in conversation, and that they had no concerns about her ability to understand what was going on around her. Upon leaving the last bar it appears she walked, on her own, some significant distance “to the other side of town.” Sgt BB, another Government witness, testified that SR CW was happy, talking, laughing, not slurring her words, and that she had her arm around Cpl MA in an affectionate manner. Thus, the evidence indicates that her presence in the hotel room with the appellant and Cpl MA was both knowing and voluntary. SR CW’s testimony also indicates she was sufficiently alert to be fully aware of her exact location in the room and that during  the sexual activity she was supporting her own weight while balancing in a difficult body position. Further, SR CW states that during the sexual encounter she was awake, the lights were on, and although she testified the appellant was “making” her perform oral sex, no evidence was presented that she demonstrated to the appellant or Cpl MA, in any manner, at any time, that she did not consent to any part of the encounter. Moreover, no evidence was presented to indicate SR CW was, through any means, prevented from manifesting her lack of consent or objection to the situation. To the contrary, we note SR CW spent the remainder of the night with Cpl MA, one of her alleged attackers, sleeping with her head on his chest.

Recognizing the high burden the Government carries in a criminal prosecution, and after considering all the evidence and pleadings in this case, we find the Government did not demonstrate the complainant’s lack of consent to the touching beyond a reasonable doubt and therefore failed to prove the offense’s second element beyond a reasonable doubt.

Slip op. at 7-8.