CAAFlog » Courts of Criminal Appeals » CCA Opinions

In a very interesting published opinion in United States v. Bass, __ M.J. __, No. 201400229 (N-M. Ct. Crim. App. May 27, 2015) (link to slip op.), a three judge panel of the NMCCA holds that the military judge erred in instructing the members on the offense of consensual sodomy in violation of Article 125 as a lesser included offense (LIO) of the offense of forcible sodomy in violation of Article 125 (the alleged offenses occurred before Article 125 was repealed and replaced in the FY14 NDAA). The CCA also holds that the judge did not err in instructing the members that they could use the charged sexual offenses as propensity evidence under Military Rule of Evidence 413 (a similar conclusion was recently reached by the Army CCA, as discussed here). The NMCCA reverses the appellant’s convictions for consensual sodomy, sets aside the sentence, and orders a sentence rehearing.

The appellant was charged with sexual assault of two female sailors, one of whom had a prior consensual relationship with the appellant. The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of member with enlisted representation, of sexual harassment and wrongful sexual contact involving one of the sailors, and of consensual sodomy (as a LIO of forcible sodomy) involving the other sailor (the one with whom he had the prior relationship). The appellant was sentenced to confinement for seven years, total forfeitures, reduction to E-1, and a dishonorable discharge.

At trial, without objection from the appellant’s defense counsel, the military judge instructed the members that consensual sodomy is a LIO of forcible sodomy:

The lesser included offense of non-forcible sodomy differs from the charged offense of forcible sodomy, in that non-forcible sodomy does not require you to be convinced beyond a reasonable doubt that the sodomy was committed by force and without the consent of the other person. However, in order to find the accused guilty of this lesser included offense, you must find beyond a reasonable doubt both that the physical act of sodomy occurred and that it involved public behavior; an act of prostitution; persons who might be injured, coerced or who were situated in relationships where consent might not easily be refused; or of a unique military interest.

Slip op. at 5 (quoting record). But the NMCCA finds that this instruction was erroneous because a conviction of consensual sodomy requires aggravating factors that remove the sexual activity from the liberty interest identified by the Supreme Court in Lawrence v. Texas, 539 U.S. 558 (2003). CAAF identified those factors in United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004), and it held in United States v. Castellano, 72 M.J. 217 (C.A.A.F. 2013) (CAAFlog case page), that determining the existence of such Marcum factors is a matter for the trier of fact.

In Bass, the NMCCA applies Castellano to conclude that the aggravating factors must be stated in the specification:

The CAAF’s binding interpretation that Marcum factors represent additional facts necessary to prove a criminal act of sodomy——as opposed to factors to guide judges in making legal determinations——constrains us to conclude that, as a result, they must be pleaded in a sodomy specification.

Slip op. at 7.

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In a published opinion in United States v. Jeter, __ M.J. __, No. 38511 (A.F. Ct. Crim. App. Jul. 1, 2015) (link to slip op.), a three judge panel of the AFCCA affirms a conviction for willfully damaging non-military property in violation of Article 109, holding that:

By definition, “damage” encompasses “physical injury to the property,” and we hereby construe “physical injury” to include the rendering of personal property at least temporarily useless for its intended purpose. When reading these concepts together, for purposes of Article 109, UCMJ, we find that “damage” consists of any physical injury to the property, to include any change to the condition of the personal property that renders it, at least temporarily, useless for its intended purpose.

Slip op. at 4. The facts of the case involve a very unhappy marriage, during which the appellant put sugar into the gas tank of his wife’s vehicle:

Suspecting the appellant had put sugar in her vehicle’s gas tank, his wife had her vehicle towed to an auto repair shop, where mechanics confirmed her suspicion. The service manager of the repair shop testified that sugar forms a gel-like substance when mixed with gasoline. If that substance passes through the vehicle’s fuel injectors, they will stick and prevent the car from running. The service manager testified that, at the time he removed the sugar from the vehicle’s tank, there had not yet been any physical injury to the vehicle itself, as the gel-like substance had not moved out of the gas tank. Until the sugar was removed, however, the vehicle could not be driven without causing physical injury to the vehicle. This raises the question whether sugar in the tank amounts to “damage” of the vehicle—nonmilitary property—within the meaning of Article 109, UCMJ. We conclude that it does.

Slip op. at 3-4.

Writing for the CCA, Chief Judge Allred explains that “the appellant’s placing sugar in the vehicle’s gas tank amounted to “damage” within the meaning of Article 109, UCMJ—as it changed the condition of the vehicle rendering it temporarily useless for its intended purpose.” Slip op. at  5.

In a published opinion in United States v. Borden, __ M.J. __, No. 20130493 (Jul. 6, 2015) (link to slip op.), a three-judge panel of the Army CCA holds that:

[W]here the government elects to serve post-trial papers by certified mail, service of such papers is complete upon the day the papers arrive at an accused’s last known-address.

Slip op. at 6. The case is particularly interesting because it involves a soldier whose sentence included a bad-conduct discharge, but whose location was seemingly unknown to military authorities (the record was mailed to his excess leave address, but was never claimed). Because a punitive discharge may not be executed until appellate review is complete, the appellant was presumably still on active duty at the time of the service (though in a no-pay-due status).

The CCA’s conclusion that actual receipt is not necessary to accomplish actual service of the record of trial seems to give the Army a pass for losing track of the appellant’s whereabouts.

In a published opinion in United States v. Pease, __ M.J. __, No. 201400165 (N-M. Ct. Crim. App. Jul. 14, 2015) (link to slip op.), the Navy-Marine Corps CCA reverses convictions for sexual assault and abusive sexual contact, finding that the Government failed to prove that the intoxicated victims were incapable of consenting and that the appellant knew or reasonably should have known that they were incapable of consenting.

The case involves two female victims: S.K. and B.S. Both were subordinates of the appellant, and both had (separate) sexual encounters with the appellant after drinking significant amounts of alcohol. The encounter with S.K. occurred in December 2012, and the encounter with B.S. occurred in January 2014. Both women had fragmentary memories of the encounters the mornings after. But the morning after her encounter with the appellant, B.S. was awoken by S.K., and:

IT2 B.S. told ITSN S.K. about what had transpired between her and the appellant. ITSN S.K. then relayed to IT2 B.S. what had happened between herself and the appellant the previous month. They decided IT2 B.S. should report she had been assaulted. After IT2 B.S. finished her report to a victim advocate, ITSN S.K., on IT2 B.S.’s urging, reported her alleged assault as well.

Slip op. at 9. The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of fraternization in violation of Article 92 and of sexual assault and abusive sexual contact in violation of Article 120 (2012). He was sentenced to confinement for six years and a dishonorable discharge.

Writing for a three-judge panel of the NMCCA, Senior Judge Brubaker finds that the sexual assault and sexual contact convictions are factually insufficient, and the court sets aside those findings of guilty. The court affirms the fraternization convictions and remands the case for a sentence rehearing.

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Last term, in the companion 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 when a service member is confined in a civilian facility within the United States. CAAF also held that a service member must exhaust all administrative remedies prior to seeking judicial relief for a violation of that prohibition. CAAF then denied relief in both cases, holding in McPherson that the appellant failed to exhaust his administrative remedies, and finding no violation of Article 12 in Wilson because the appellant was confined alone.

Notably, both cases were certified to CAAF by the Judge Advocate General of the Air Force in order to define the reach of Article 12 (in part because of the Air Force relies heavily on civilian confinement facilities). And a curious twist to Wilson was that the appellant never asserted a violation of Article 12. Rather, he asserted that he was subjected to cruel and unusual punishment, in violation of Article 55, UCMJ, and the Eighth Amendment, because he was segregated from other inmates while confined in a civilian facility (presumably to avoid any Article 12 issue).

The Air Force CCA rejected Wilson’s claims for relief (twice). But now that CCA revisits the issue raised in Wilson. In United States v. Gay, __ M.J. __, No. 38525 (A.F. Ct. Crim. App. Jun. 12, 2015) (link to slip op.), the AFCCA holds that the appellant’s confinement in solitary confinement (where he was alone 23 hours per day, and suffered other administrative hardships) in a civilian facility, imposed after he complained of an Article 12 violation, was not cruel and unusual punishment, but is deserving of relief under the CCA’s Article 66(c) sentence-appropriateness power.

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In an unpublished in United States v. Lefevers, No. 201400312 (N-M. Ct. Crim. App. Jun. 18, 2015) (link to slip op.), a panel of the NMCCA splits 2-1 to affirm the sentence of confinement for 30 months and a bad-conduct discharge, adjudged at a general court-martial after the appellant pleaded guilty to making a false official statement, aggravated assault, and child endangerment, in violation of Articles 107, 128, and 134.

The appellant’s misconduct primarily involved this gruesome incident:

On the morning of 21 January 2013, the appellant was caring for his two-year-old step-daughter CW while his wife, CW’s mother, went to work. To help him sleep, the appellant had taken Benadryl the night before and was still asleep when his wife left for work between 0400 and 0500 that morning. What happened next is detailed best in the appellant’s stipulation of fact:

I was awoken by [CW], my step-daughter. I was so angry that I grabbed [CW] by the hair and threw her down the stairs and she hit the wall . . . head first and I heard a thud as her cheek and side of her head hit the wall. I remember standing with a lump of [CW’s] hair in my right hand. I flushed the hair down the toilet in the upstairs bathroom because I didn’t want to look at it. [CW] was crying really loud. I could tell that she was scared and in pain. I then went down the stairs and grabbed her by one arm . . . and carried her back up the stairs and into the master bedroom and laid her on the bed for several minutes. [CW] continued to cry for what seemed like 10-15 minutes, and I was walking around the bedroom trying to calm down. I knew she was hurt and should get medical attention, but I was worried that I would get into trouble for hurting her.

The appellant then called his wife and attempted to console CW while waiting for his wife to return home. When his wife returned home, he told her that CW had accidentally fallen down the stairs.

The appellant and his wife then took CW to the hospital. . .

Slip op. at 3. The facts that split the CCA involve the injuries that the appellant duffered during two combat deployments:

The appellant enlisted in the Marine Corps in 2007 at the age of 19. His first deployment to Afghanistan came in September 2010 and lasted until April 2011, where he served as a machine gunner. During this deployment the appellant engaged in “hundreds” of firefights with the enemy.

After this deployment, the appellant began exhibiting symptoms of post-traumatic stress disorder (PTSD). The appellant nonetheless deployed to Afghanistan for a second time from 24 February 2012 until 9 September 2012, during which the appellant’s unit was required to medically evacuate countless wounded civilian Afghan children who fell victim to improvised explosive devices. Moreover, the appellant’s unit engaged in several firefights, including a six-hour battle with the Taliban, where the appellant displayed exceptional courage, skill, and leadership.

After returning from this deployment in September 2012, the appellant’s PTSD symptoms worsened, resulting in his chain of command cancelling his orders for a third deployment to Afghanistan so that they could “keep an eye on him.”

Slip op. at 2. The incident with the appellant’s stepdaughter occurred approximately four months after the appellant returned from the second deployment.

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In two recent decisions the Army and Air Force CCAs analyzed the military-specific rule of completeness, Military Rule of Evidence 304(h). I last analyzed this rule in this post.

In United States v. Jnbaptiste, No. 20121113 (A. Ct. Crim. App. Apr. 14, 2015) (link to slip op.), the Army CCA finds no error in the military judge’s restriction of the defense cross-examination of the appellant’s wife. The restriction prevented the defense from eliciting the appellant’s denial when his wife questioned him about their daughter’s allegation of sexual abuse. The appellant was convicted of sexually abusing the daughter.

In United States v. Rosales, __ M.J. __, No. 38502 (A.F. Ct. Crim. App. Jun. 17, 2015) (link to slip op.), the Air Force CCA finds error but no prejudice in the military judge’s application of M.R.E. 412 (the rape shield rule) to prevent the defense from introducing portions of the appellant’s statements to investigators regarding his knowledge of his wife’s extra marital sexual activities. However, the appellant was permitted to cross-examine his wife about those same activities. The appellant was convicted of assaulting and attempting to rape his wife.

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The Air Force CCA reached two interesting conclusions in United States v. Bischoff, __ M.J. __, No. 37731 (A.F. Ct. Crim. App. Feb. 19, 2015) (link to slip op.). The first involves an issue of member bias; the second involves a question of prejudice for post-trial delay where the appellant’s sentence included a year of confinement, the appellant served all of the confinement, the CCA ordered a sentence rehearing, and then appellant received a sentence that included no confinement.

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In a published decision in United States v. Barnes, __ M.J. __, No. 20120308 (A. Ct. Crim. App. May 8, 2015) (link to slip op.), a three-judge panel of the Army CCA addresses the appropriateness of a M.R.E. 413 instruction to the members that allowed them to use the two charged offenses of rape (one in 2006, the other in 2009, and each involving a separate alleged victim) as propensity evidence to prove that the appellant committed those same rapes.

Specifically, the military judge instructed the members that:

Evidence that the accused committed the sexual assault alleged in each specification and charge may have no bearing on your deliberations in relation to the other specifications and charge, unless you first determine, by a preponderance of the evidence that it is more likely than not the offense alleged in one of these specifications occurred. For example, if you determine by a preponderance of the evidence, the offense alleged in one of the specifications occurred, even if you were not convinced beyond a reasonable doubt that the accused is guilty of that offense, you may nonetheless then consider the evidence of that offense for its bearing on any matter to which it is relevant in relation to the other charge.

Slip op. at 4-5. Then, in closing arguments, the trial (Government) counsel argued:

[L]ighting does strike twice and the accused is proof positive of it. . . . The accused struck again in 2009. It even started out in the same place, Fort Huachuca, Arizona, the accused is TDY. He had gotten away with it the first time. No charges have been pressed yet. So he thought, “hey this is a pretty good gig. I can go have sex whenever I want. Take it from an unsuspecting woman. They didn’t catch me three years ago.”

Slip op. at 5 (quoting record). And in rebuttal argument, the trial counsel elaborated:

I ask that you pay careful attention to all of the instructions in their entirety, not just certain portions of them, and know that the accused’s propensity to commit these offenses can be evaluated if you find he has at least committed the offense by [a] preponderance of the evidence standard. . . . The defense would like you to believe that the rape in 2009 and the rape in 2006 were so different, but yet, they are so similar. Each time the accused took what he wanted, when he wanted, without the consent of the other parties, of the victim. Each time. They are actually very similar.

Slip op. at 6 (quoting record) (marks in original). The appellant was convicted of both rapes and sentenced to confinement for 15 years, total forfeitures, reduction to E-1, and a dishonorable discharge. The convening authority reduced the confinement to 14 years and 9 months, but otherwise approved the sentence.

The Army CCA considers this instruction, and specifically the fact that the military judge failed to apply the factors identified in United States v. Wright, 53 M.J. 476, 482 (C.A.A.F. 2000), including the test for relevance (M.R.E. 401) and for probative value (M.R.E. 403). In an opinion authored by Judge Tellitocci, the CCA affirms the findings and sentence.

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Back in 2013, in this post, I wrote about the Air Force case of United States v. Carr, No. 38025 (A.F. Ct. Crim. App. Aug 15, 2013), where the convening authority initially disapproved the adjudged bad-conduct discharge, but then the Air Force CCA went to considerable lengths to allow the convening authority to correct that action and approve the discharge.

Now the Coast Guard CCA addresses similar errors in a convening authority’s action that violated the terms of a pretrial agreement:

For a third time, the action suspends confinement in excess of ten months, even though the pretrial agreement called for disapproval of confinement in excess of ten months. Appellant has consistently pointed out this flaw, and the Convening Authority, with the advice of the Staff Judge Advocate, has persisted in this violation of the pretrial agreement. Inexplicable as this violation appears, we are confident that the suspension has not been vacated, else Appellant would have complained further. Though given repeated opportunities to conform the Convening Authority’s action to the terms negotiated, the Government has failed to do so. We do not condone the Government’s failure in this regard, but we are not inclined to remand again in the hope that the Government will at last give attention to and correct this obvious error. No action is needed beyond our disapproval of confinement in excess of ten months.

The approval of confinement beyond the limit set in the pretrial agreement is not the only flaw in the Convening Authority’s action. Again, for a third time, the action provides that automatic forfeitures will be deferred for six months. This provision bespeaks ignorance of the vocabulary of the UCMJ.

United States v. Matthews, No. 1382, slip op. at 3 (C.G. Ct. Crim. App. May 20, 2015) (emphases added) (link to slip op.).

This being the third time the CCA considered the case (the first was in a published opinion that I discussed here; the second resulted in a summary remand without written opinion, ostensibly to fix this error), the CCA simply gives up and fixes the problem itself:

Appellant now moves again for remand for a corrected convening authority action, and for leave to file this motion. The motion for leave to file is granted. The motion for remand is denied. We have the power under Article 66, UCMJ, to correct the flaw in the Convening Authority’s action without another remand.

Slip op. at 4. However, the CCA only conforms the sentence to the terms of the pretrial agreement. It grants no actual relief to the appellant, either for the Government’s “persiste[nce] in this violation of the pretrial agreement,” slip op. at 3, or for the one year, eleven months, and eight days between the date of the guilty plea and the completion of the CCA’s review.

In a published opinion in United States v. Fowler, __ M.J. __, No. 20121079 (A. Ct. Crim. App. Apr. 30, 2015) (link to slip op.), a three-judge panel of the Army CCA tackles a claim of a double jeopardy violation in a military judge’s premature announcement of findings.

Writing for the panel, Judge Krauss explains that:

Charged with desertion, appellant pled guilty to the lesser-included offense of absence without leave (AWOL) in violation of Article 86, UCMJ. The judge advised appellant that his “plea of guilty to a lesser included offense may also be used to establish certain elements of the charged offense if the government decides to proceed on the charged offense.” The judge did not ask and the trial counsel did not declare whether the government intended to proceed on the greater charge.

Upon acceptance of that plea, the judge announced findings: “To the Specification of The Charge: Guilty, except the words, ‘and with the intent to remain away therefrom permanently’ and ‘in desertion.’ Of the Charge: Not Guilty, but guilty of a violation of . . . Article 86.”

Slip op. at 2. The trial counsel then noted that the Government was still pursuing the greater offense of desertion in violation of Article 85, and it introduced evidence that proved that the appellant had the requisite intent for desertion. The military judge then convicted the appellant of desertion.

On appeal, the appellant claimed that this amounts to a violation of the prohibition against double jeopardy. Rejecting this challenge and affirming the conviction, Judge Krauss writes:

An announced finding of “not guilty” amounts to an acquittal if it effects a “ruling that the prosecution’s proof is insufficient to establish criminal liability for an offense.” Evans v. Michigan, 133 S. Ct. 1069, 1074-75 (2013). An acquittal is “a finding that the [government]’s evidence cannot support a conviction.” Martinez v. Illinois, 134 S. Ct. 2070, 2076 (2014).

Of course, the objective of a court -martial is a fair trial. Our adversarial system, by its very nature, requires that each party enjoy an opportunity to present its respective case to the factfinder. A military judge possesses no authority to prevent the United States from attempting to prove the charge it has otherwise properly referred to trial by court-martial by peremptorily announcing a finding of not guilty. [citations omitted -zds]

Any such declaration of not guilty is ineffective. This is true whether the judge makes such announcement on purpose or by mistake. See United States v. Downs, 4 U.S.C.M.A. 8, 11-12, 15 C.M.R. 8, 11-12 (1954); Greening, 54 M.J. at 832; see also United States v. Boswell, 8 U.S.C.M.A. 145, 149, 23 C.M.R. 369, 373 (1957) (when announcement of not guilty is a “slip of the tongue” it c an be corrected); R.C.M. 922(d); R.C.M. 1102(c)(2).

Here the military judge erroneously announced a finding of not guilty to the charged desertion before the government was given an opportunity to prove that charge. It appears that the judge, in the moment, did indeed intend to make that announcement; however, it is also quite plain from the record that the judge did not intend to prevent the government from proceeding. In any event, under circumstances such as these, it matters not whether the judge intended to announce a finding of not guilty. A finding of not guilty announced before the government enjoys a proper opportunity to prove its case does not constitute an acquittal. See Martinez, 134 S. Ct. at 2076-77.

Slip op. at 3-4.

The Courts of Criminal Appeals rarely invoke their factual sufficiency powers to reverse a conviction. Unlike legal sufficiency, which questions “whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt,” United States v. Dobson, 63 M.J. 1, 21 (C.A.A.F.2006) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis added), factual sufficiency review involves the CCA’s independent conclusion about the evidence. It is a unique power granted by Article 66(c):

[A CCA] may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved. In considering the record, it may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses.

The Air Force CCA recently exercised that unique power, in United States v. Wilkinson, No. 32218 (A.F. Ct. Crim. App. May 11, 2015) (link to slip op.):

It should go without saying that a court-martial is a most serious matter, and the requirement for proof beyond a reasonable doubt plays a vital role in the legitimacy of the military justice system. A “society that values the good name and freedom of every individual should not condemn a man for commission of a crime when there is reasonable doubt about his guilt.” In re Winshop, 397 U.S. 358, 363–64 (1970). In the military justice system, where servicemembers accused at court-martial are denied some rights provided to other citizens,2 our unique factfinding authority is a vital safeguard designed to ensure that every conviction is supported by proof beyond a reasonable doubt. This authority “provide[s] a source of structural integrity to ensure the protection of service members’ rights within a system of military discipline and justice where commanders themselves retain awesome and plenary authority.” United States v. Jenkins, 60 M.J. 27, 29 (C.A.A.F. 2004). Most cases reviewed by this court are deemed factually sufficient. However, in this instance, we simply are not personally convinced that the appellant is guilty of the charged offenses.

Slip op. at 3.

In United States v. Christopher, No. 201500066 (N-M. Ct. Crim. App. Apr. 21, 2015) (link to slip op.), writ-appeal filed, __ M.J. __ (C.A.A.F. May 8, 2015), the NMCCA denied the accused’s petition for a writ of mandamus that would order the charges dismissed on the basis that a court-martial does not have personal jurisdiction over the accused. The petitioner is on the Permanent Disability Retirement List (PDRL), and he is charged with offenses that allegedly occurred before his transfer.

The CCA’s analysis is brief:

In ruling on the defense’s Motion to Dismiss for Lack of Jurisdiction, the military judge assumed arguendo that the petitioner’s transfer to the PDRL was valid and, citing Article 2(a)(4), UCMJ, found that as a “[r]etired member[] of a regular component of the armed services who [is] entitled to pay,” he is subject to UCMJ jurisdiction. She is correct: Article 2(a)(4), UCMJ, confers in personam jurisdiction over retired members of a regular component of the armed forces who are entitled to pay. See also Pearson v. Bloss, 28 M.J. 376, 377-78 (C.M.A. 1989).

Slip op. at 5.

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.