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In United States v. Wilson, No. 20140386 (A. Ct. Crim. App. Aug. 15, 2004) (link to unpub. op.), the Army CCA reverses in part a trial judge’s decision suppressing the accused’s confession and physical evidence seized from his vehicle.

A camera was observed during a safety inspection of the accused’s vehicle by leaders from his command. It was suspected that the camera belonged to the unit and the camera’s serial number was going to be compared against unit records when the accused – who was not advised of his Article 31(b) rights – “stated that the camera belonged to the unit and that he had intended to borrow it for the weekend.” Slip op. at 2. Military police were called and the accused consented to a search of his vehicle, revealing “drug paraphernalia containing marijuana residue.” Slip op. at 3.

The military judge suppressed everything in a five page ruling that the CCA references as an appendix but is not actually attached to the CCA’s opinion. But the CCA reproduces this passage:

The absence of Article 31(b) rights renders the statements given by the accused inadmissible. Since the accused’s statements and verbal acts were obtained based on implicit coercion, the statements are also inadmissible for impeachment purposes. Subsequent evidence obtained, including the camera, lens, [storage device], and paraphernalia, as well as the accused’s written consent to search his POV, are fruit of the poisonous tree and are also inadmissible pursuant to [Mil. R. Evid] 304(a).

Slip op. at 5. The CCA affirms the judge’s suppression of the unwarned statements by the accused but reverses on their inadmissibility for impeachment purposes, finding that the facts “cannot support a necessary conclusion of law that appellee’s statement was involuntary in the sense that it was the product of coercion, unlawful influence, or inducement, which is the prerequisite to precluding use of admissions in impeachment of an accused, notwithstanding failure to advise of Article 31 rights or rights to counsel.” Slip op. at 6. The CCA also reverses the judge’s ruling regarding the search, finding that:

Here, the military judge determined that appellee’s statutory Article 31 rights were violated. The military judge focused solely on unwarned statements by appellee—there were no findings or analysis regarding an illegal search or other constitutional violation. The military judge concluded summarily that: (1) the absence of Article 31 rights warnings made all the appellee’s statements inadmissible; (2) the statements were, therefore, obtained by “implicit coercion;” and (3) all subsequent evidence was “fruit of the poisonous tree” and inadmissible. However, this “fruit” was not from the same tree, nor was it even from the same orchard. More than three hours after the initial questions by SGT WA, appellee voluntarily consented in writing to a search of his vehicle. Because the consent to search was not a “statement” of the accused, the military judge applied the wrong legal principles and abused his discretion when he suppressed the drug paraphernalia discovered during the consent search.

Slip op. at 7 (emphasis in original).

The NMCCA recently denied relief in two cases involving assertions of speedy trial violations.

In United States v. Spratling, No. 201400060 (N-M. Ct. Crim. App. Jul. 31, 2014) (link to slip op.), the CCA rejected the appellant’s argument that the Government’s preferral of replacement charges was a subterfuge to deprive him of a speedy trial. The appellant was charged with an indecent act in violation of Article 120 (2006), receipt of child pornography in violation of Article 134, and an indecent act in violation of Article 134. The allegations were all based on the appellant’s interactions with KS, a minor.

The charges were preferred in January 2013, and an Article 32 pretrial investigation was conducted. After the 32, “the Government preferred substantially the same charges” in March, and those charges were referred to trial by general court-martial. Slip op. at 2. The Defense then successfully moved to dismiss the Article 120 offense as an unreasonable multiplication of charges, leaving only the child pornography and indecent act specifications under Article 134. In response, the Government preferred two new charges in June alleging an indecent act in violation of Article 120 and receipt of child pornography in violation of Article 134. These charges were referred to the same general court-martial, and the remaining charges preferred in March were dismissed. This action had the effect of both reinstating the dismissed Article 120 charge and resetting the speedy trial clock.

The appellant was then convicted of both the 120 and 134 offenses, contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, and sentenced to confinement for 60 days and a bad-conduct discharge. Before trial the appellant moved to dismiss  the charges for violation of his right to a speedy trial, but the military judge denied the motion. The judge “specifically ruled that the trial counsel’s dismissal on 9 July 2013 of the child pornography charge at the direction of the CA, was neither improper nor a subterfuge.” Slip op. at 4.

The appellant renewed this claim on appeal (personally, as a Grostefon matter), but the CCA denied relief by agreeing with the trial judge’s ruling. However, the CCA merely summarily accepts the judge’s conclusion regarding the re-preferral, casting it as a finding of fact that is “clearly supported by the record.” Slip op. at 4. The CCA does not actually discuss the reason why the charges were re-preferred (and it’s not particularly clear why the Government did this, except to usurp the judge’s unreasonable multiplication ruling). Nor does the CCA discuss whether the appellant demanded a new Article 32 each time new charges were preferred, as was his right. See, e.g., United States v. Leahr, 14-0265/CG, 73 M.J. 364 (C.A.A.F. Jul. 25, 2014) (CAAFlog case page). See also Article 32(c).

But things are even wilder in United States v. Wilder, No. 201400118 (N-M. Ct. Crim. App. Aug. 12, 2014) (link to slip op.), where the appellant pleaded guilty pursuant to a pretrial agreement that required him “to withdraw his motion to dismiss for a violation of his right to a speedy trial.” Slip op. at 2. The Government “concedes that the condition was impermissible,” but argued that the appellant waived the issue by his unconditional plea of guilty. Id. But in addition to the unconditional plea, the CCA notes that:

In an exhibit entitled, “Sentencing Memo (Continuation of Lance Corporal Wilder’s unsworn statement through counsel),” the civilian defense counsel argued: “The conviction will stick. There were motions pending and waived by this plea that could have resulted in charges being dismissed, perhaps with prejudice. Even if the motions were denied, there would be appellate issues that would have kept this case active for years, perhaps resulting in a retrial. Pleading guilty removed the real possibility charges would be dismissed and removed realistic appellate issues.” Defense Exhibit B at 1.

Slip op. at 4 n.4 (emphasis in original). Despite this, the CCA finds that the appellant did not waive the speedy trial issue, and that he has made a “prima facie showing or a colorable claim that he is entitled to relief.” Slip op. at 5 (quoting United States v. McLaughlin, 50 M.J. 217, 219 (C.A.A.F. 1999)). The CCA then analyzes the issue, beginning with the fact that the appellant was in pretrial confinement for only some, and not all, of the charges, and that he was arraigned twice (initially objecting to joinder).

Separating the earlier charges (arraigned first) from the later charges (arraigned second), the CCA concludes that there was no speedy trial violation under R.C.M. 707, Article 10, or the Sixth Amendment. This conclusion is made possible by the fact that the CCA “hold[s] that R.C.M. 707(a)(1) establishes the commencement of the speedy trial clock for the additional charges as the dates of preferral,” not the date of imposition of pretrial confinement. Slip op. at 6.

Recent CAAF jurisprudence has been loaded with significant lesser included offense (LIO) issues. Things really got started in 2008 when, in United States v. Medina, 66 M.J. 21, 26 (C.A.A.F. 2008) (discussed here), the court viewed the three clauses of Article 134 as alternative theories of prosecution and concluded that Article 134 clause 1 & 2 offenses are not are not necessarily LIOs of clause 3 offenses. CAAF continued this reasoning in United States v. Miller, 67 M.J. 385 (C.A.A.F. 2009) (discussed here), holding that a simple disorder under Article 134 is not a LIO of every enumerated article. Then, in United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010) (discussed here), the court returned to the elements test for determining LIOs, creating what we called an easy button for LIOs (and producing some entertaining citations in subsequent decisions). Notably, in Jones, the court noted

While it has been said that “[t]he question of what constitutes a lesser-included offense [in the military justice system] . . . is a Hydra,” United States v. Weymouth, 43 M.J. 329, 342 (CAAF 1995) (Crawford, J, concur ring in the result), rather than embracing a “Hydra” we return to the elements test, which is eminently straightforward and has the added appeal of being fully consonant with the Constitution, precedent of the Supreme Court, and another line of our own cases.

Jones, 68 M.J. at 468.

But things weren’t really so eminently straightforward. For instance, in United States v. Rauscher, 71 M.J. 225 (C.A.A.F. 2012) (CAAFlog case page), the court found that the designation of a specific statute is immaterial when the proper elements of a different offense are explicitly alleged in the specification. And in United States v. Tunstall, 72 M.J. 191 (C.A.A.F. 2013) (CAAFlog case page), CAAF rejected a LIO that was too similar to the charged offense. There’s also the closely-related concept of multiplicity, which CAAF tackled in United States v. Campbell, 71 M.J. 19 (C.A.A.F. 2012) (CAAFlog case page), explaining that multiplicity is aimed at protection against double jeopardy. CAAF also considered multiplicity in United States v. Elespuru, 73 M.J. 326 (C.A.A.F. 2014) (CAAFlog case page), where the court addressed a multiplicity claim by finding that the issue was waived at trial but then the court set aside one of the two convictions anyway, noting that they were charged in the alternative.

The clarity of Medina, Miller, and Jones is somewhatobscured by applications like Rauscher, Tunstall, Campbell, and Elespuru. But in a recent unpublished decision in United States v. Hart, No. 201300295 (N-M.Ct.Crim.App. Aug. 19, 2014) (link to slip op.), a three-judge panel of the NMCCA eliminates all clarity and reincarnates the hydra.

The appellant in Hart was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of unpremeditated murder, involuntary manslaughter, aggravated assault, negligent homicide, and child endangerment in violation of Articles 118, 119, 128, and 134. He was sentenced to confinement for twelve years, reduction to E-1, total forfeitures, and a dishonorable discharge. The convictions all related to the death of the appellant’s infant daughter who the appellant was accused of forcibly shaking.

In particular, the appellant was convicted of three of the charges (unpremeditated murder (Art. 118(3)), involuntary manslaughter (Art. 119(b)(1)), and negligent homicide (Art. 134)) for conduct that occurred on a single day and resulted in the girl’s death (the aggravated assault and child endangerment charged addressed abuse on an earlier date). Writing for the three-judge panel of the CCA, Judge Jamison notes that these offenses “were specifically charged for contingencies-of-proof.” Slip op. at 9. However, the members were not instructed that the appellant could be convicted of no more than one of the three. Rather, “the military judge elected to merge for sentencing purposes the unpremeditated murder, involuntary manslaughter, and negligent homicide” offenses, meaning that the appellant was convicted of all three but sentenced only for the greatest offense (unpremeditated murder). Slip op. at 7. On appeal the appellant asserts that the military judge should have dismissed the involuntary manslaughter and negligent homicide offenses as an unreasonable multiplication of charges. Slip op. at 6-7.

Rather than second-guess the trial judge’s decision to merge the three offenses for sentencing, Judge Jamison reviews both offenses from a multiplicity standpoint and finds that both should be dismissed as LIOs. The finding of involuntary manslaughter as a LIO of unpremeditated murder in violation of Article 118(3) is rather unremarkable considering the elements of the each offense (and Judge Jamison notes the court’s decision in United States v. Dalton, 71 M.J. 632, 634 (N.M.Ct.Crim.App. 2012), aff’d, 72 M.J. 446-47 (C.A.A.F. 2013) (summary disposition), cert. denied, 134 S.Ct. 941 (2014), in which it affirmed involuntary manslaughter as a LIO of unpremeditated murder in violation of Article 118(2)). However, Judge Jamison’s conclusion that negligent homicide in violation of Article 134 is a LIO of unpremeditated murder in violation of Article 118(3) is remarkable for a couple of reasons, the first of which is that it is directly contrary to CAAF’s conclusions in United States v. Girouard, 70 M.J. 5, 9 (C.A.A.F. 2011), and United States v. McMurrin, 70 M.J. 15, 18 (C.A.A.F. 2011), and the second of which is that Article 134 offenses necessarily include an element missing from Article 118: prejudice to good order and discipline or conduct likely to bring discredit upon the armed forces.

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In a published opinion in United States v. Keefauver, No. 20121026, __ M.J. __ (A.Ct.Crim.App. Jul. 29, 2014) (link to slip op.), a three-judge panel of the Army CCA conducts what looks to be an unremarkable application of precedent to facts to affirm a military judge’s ruling that admitted evidence discovered by law enforcement agents during a protective sweep search of the appellant’s on-base residence. The search occurred after the agents completed a controlled delivery of a U.S. Mail package smelling strongly of marijuana and ultimately found to contain between three and four pounds of the drug.

While the CCA notes that Supreme Court precedent permits “a protective sweep [which] is a quick and limited search of premises conducted to protect the safety of police officers or others,” slip op. at 7 (quoting United States v. Starnes, 741 F.3d. 804, 807 (7th Cir. 2013)), the following facts appear to have a significant role in the CCA’s ultimate conclusion:

Once the package was inside the house, the surveillance team moved in and entered the home to retrieve the box. TC-D answered the door and SA SR informed him that he was with the police and was there to search the home. TC-D became “irate,” yelling an “ungodly tirade of obscenities” at the agents including, “what the fuck” and “get the fuck off my property,” as well as “I hate pigs,” “I hate cops,” “[c]ops can all die,” or words to that effect. He was placed in handcuffs and seated near the garage. Special Agent SR immediately located the package right inside the home in the hallway, about ten feet from the front door.

Slip op. at 4. The agents discovered drug paraphernalia,  firearms, additional drugs, and thousands of dollars worth of U.S. currency in the house.

The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of two specifications of violating a general regulation by wrongfully possessing drug paraphernalia and unregistered weapons on-post, one specification of wrongful possession of marijuana, and one specification of child endangerment in violation of Articles 92, 112a, and 134, and was sentenced to confinement for four years, total forfeitures, reduction to E-1, and a bad-conduct discharge. Slip op. at 1.

In an unpublished opinion in United States v. Stout, No. 20120592 (A.Ct.Crim.App. Jul. 25, 2014) (link to unpub. op.), the Army CCA reverses the appellant’s pleas of guilty to one specification each of abusive sexual contact with a child, indecent liberties with a child, and possession of child pornography, in violation of Articles 120 and 134, for which he was sentenced to confinement for eight years, total forfeitures, reduction to E-1, and a bad-conduct discharge. Judge Borgerding writes for a three-judge panel of the court.

This passage from the opinion’s concluding section describes the case best:

As we stated in United States v. Le:

In cases such as appellant’s, we agree with Judge Trant’s observation in United States v. Pecard: “The spectacle, where both counsel take hold of appellant’s arms while the judge grabs the ankles and together they drag appellant across the providence finish line, is not only troublesome, but, as demonstrated by the result in this appeal, in the end, futile.”

59 M.J. 859, 864 (Army Ct. Crim. App. 2004) (quoting United States v. Pecard, ARMY 9701940, 2000 WL 35801828, at *5 (Army Ct. Crim. App. 7 Dec. 2000) (mem. op.)).

Slip op. at 10-11. You can read the facts of the case in the opinion and ask yourself if the appellant’s encounters with his 14-to-15 year old stepdaughter were innocuous or not. But one part really struck me: the CCA notes that in his unsworn statement

Appellant told the military judge, “in [his] opinion, at the time” he was just “being a parent” and it was only after his defense counsel explained the law to him that he understood he had done something wrong.

Slip op. at 6. Since both abusive sexual contact with a child and indecent liberties with a child require specific intent, and possession of child pornography requires knowledge, it’s troubling that a defense counsel would convince an accused of his intent after the fact.

I’ve periodically written about why charges need to be alleged in the conjunctive (e.g., prejudicial to good order and discipline and likely to bring discredit upon the armed forces), not in the disjunctive (e.g., prejudicial to good order and discipline or likely to bring discredit upon the armed forces). For instance, in my analysis of United States v. Stewart, 71 M.J. 38 (C.A.A.F. Mar. 6, 2012) (CAAFlog case page) I wrote:

The tragedy is that CAAF’s resolution turns on the amateurish charging decision of the government, rather than any of the other significant issues presented by this case (which included the important question of the proper role of the military judge in determining the availability of the defense of consent). The rule of “charge in the conjunctive, prove in the disjunctive” is old and well-settled (see, for example, the United States Attorneys’ Manual entry on the subject), and a court-martial is specifically authorized, by R.C.M. 918, to return findings with exceptions. The use of the word “or” in place of “and” doesn’t just make a specification duplicitous, it creates a potential referral (i.e., jurisdictional) issue as the court-martial cannot know which facts were the basis for the “reasonable grounds to believe that an offense triable by a court-martial has been committed,” as required by R.C.M. 601(d)(1).

The appeal of disjunctive pleadings is likely the fear that conjunctive pleadings force the prosecution to prove both sides of the conjunction – a fear that is mistaken and nonsensical.

In a recent unpublished opinion in United States v. Dietz, No. 38117 (A.F.Ct.Crim.App. Jul. 17, 2014) (link to slip op.), the AFCCA issues yet another reminder of this rule:

We agree with our colleagues in the other service courts that “pleadings and findings in the disjunctive may constitute error, but . . . [s]uch error is not uniformly fatal and, in the absence of material prejudice, may be waived.” United States v. Crane, ARMY 20080469, unpub. op. at 1 (Army Ct. Crim. App. 18 August 2009) (citing United States v. Gonzalez, 39 M.J. 742, 749 (N.M.C.M.R. 1994)). “While charging in the disjunctive is disfavored, under Article 134, [UCMJ,] it does not automatically render the specification fatally defective.” United States v. Miles, 71 M.J. 671, 673 (N.M. Ct. Crim. App. 2012), rev. denied, 72 M.J. 257 (Daily Journal 19 April 2013). In a guilty plea case, we review the specification with “maximum liberality.” United States v. Ballan, 71 M.J. 28, 33 (C.A.A.F. 2012) (citation and internal quotation marks omitted). “It has been exhaustively clarified that the phrase ‘prejudicial to good order and discipline or of a service-discrediting nature’ merely pleads two different theories of liability for a singular terminal element under which an accused can be found guilty of but one offense.” United States v. Chestnut, ARMY 20120612 (Army Ct. Crim. App. 31 October 2013) (unpub. op.) (citing United States v. Medina, 66 M.J. 21 (C.A.A.F. 2006)), rev. denied, 73 M.J. 294 (Daily Journal 24 April 2014).

Slip op. at 3. The court concludes:

We would nonetheless echo the admonition of the Army Court of Criminal Appeals:

We take this opportunity to strongly discourage disjunctive pleadings. Such pleadings serve no discernable purpose and unnecessarily create avoidable appellate issues. While statutory construction may offer alternate theories of criminal liability, pleadings should specify those theories, using the conjunctive . . . if more than one may apply. If concerned with exigencies of proof, trial counsel may plead in the conjunctive and fact-finders may find by exceptions. This eliminates any potential for ambiguity in pleadings or findings. Further, we urge trial judges to eliminate disjunctives by ordering the Government to amend the specification when, as here, it otherwise gives sufficient notice of the crime alleged and would not constitute a major change. Certainly, judges should ensure disjunctives are eliminated when entering findings or when members make findings on a specification.
Crane, unpub. op. at 2 (internal citations omitted).

Slip op. at 5 (omission in original).

In an issue-packed unpublished opinion in United States v. Hudgins, No. 38305 (A.F.Ct.Crim.App. Apr. 3, 2014) (link to slip op.), the Air Force CCA considers the tardy disclosure to the Defense of mental health records of an alleged victim of sexual assault, finding no prejudice in a case where the Government employed an in camera review of the records by the military judge to avoid its discovery obligation.

The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of two specifications of abusive sexual contact, one specification of rape, one specification of forcible sodomy, and one specification of assault consummated by a battery, in violation of Articles 120, 125, and 128. He was sentenced to confinement for eleven years, a reprimand, and a dishonorable discharge.

The charges involved encounters with two female airmen, DB and PS. The appellant and DB had a pre-existing sexual relationship, but she claimed that he forcibly raped her while she was sleeping with him in her bed. DB made this allegation within a day of the encounter. The allegation by PS involved an encounter that occurred before the encounter with DB, but PS did not report it until after being encouraged to do so by her boyfriend and after seeking counseling.

The Defense sought production of the active duty mental health records of PS. Such records are generally privileged against disclosure (to either side) under Military Rule of Evidence 513.

Defense counsel sought several pieces of information they believed were contained in the mental health records, including “where she talks about issues with her current boyfriend.” The defense asserted this information was relevant and necessary because it would further the defense theory that A1C PS reported the sexual assault because her boyfriend might surmise it was consensual if she did not report it, possibly jeopardizing the relationship. The Government opposed producing her mental health records. The military judge reviewed A1C PS’s mental health records in camera and determined none of the mental health records were relevant, at least in regard to findings.

Slip op. at 6. The Defense also sought production of records related to prior statements PS might have made about sexual abuse that contradicted her in-court testimony during a pre-trial motions session. Slip op. at 9.

After the appellant was convicted, a Government expert psychologist testified about post-traumatic symptoms exhibited by both victims. In particular, the psychologist “testified that he had interviewed or examined both A1C PS and A1C DB, and testified that both Airmen exhibited many symptoms consistent with PTSD.” Slip op. at 9-10. As a result, the military judge determined “that the Government had placed the mental health of A1C PS and A1C DB at issue in sentencing proceedings, and therefore he planned to disclose certain records to the defense.” Slip op. at 10. But first the judge allowed DB to testify in sentencing. Then he provided records to the Defense that included information about prior allegations of sexual assault made by PS. Slip op. at 10. The basis for the jude’s disclosure to the Defense was “a possible contradiction” with the pre-trial motions testimony by PS, “potentially providing a basis to impeach her.” Slip op. at 10.

Upon reviewing the records, the Defense moved for a mistrial.

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In an unpublished opinion in United States v. Dunton, No. 201300148 (N-M.Ct.Crim.App. Jul. 15, 2014) (link to unpub. op.), the Navy-Marine Corps CCA finds “merit in the appellant’s argument that the military judge erred by admitting over defense objection certain testimony concerning the appellant’s sexual orientation.” Slip op. at 1.

The appellant, a noncommissioned officer and infantry squad leader, faced at trial three specifications of wrongfully committing sexual contact in the barracks upon three different members of his company. At the time of his offenses, two of the three Marines were members of his platoon; Corporal (Cpl) [P] and Lance Corporal (LCpl) [E]. A third victim, LCpl [B] lived in the same barracks and was a member of a different platoon within the company.

Slip op. at 3. The appellant and all three of his alleged victims are male.

The appellant was convicted contrary to his pleas of not guilty, by a special court-martial composed of officer members, of two specifications of wrongful sexual contact and one specification of assault consummated by a battery, in violation of Articles 120 and 128. He was sentenced to confinement for twelve months, reduction to E-1, forfeiture of $994.00 pay per month for 12 months,and a bad-conduct discharge (these are the jurisdictional maximums for each type of punishment).

The appellant’s first victim, Cpl P, returned to his barracks room after a night of drinking. Later, the appellant entered Cpl P’s room and put his hand down Cpl P’s pants. A few days later the second victim, LCpl B, awoke to find the appellant naked and lying next to him in his bed, with the appellant’s hand under LCpl B’s shirt resting on his chest. Neither Cpl P nor LCpl B immediately reported what happened. A few months after this, the third victim, LCpl E, was playing a video game in his barracks room. He allowed the appellant into his room. The appellant then opened and reached into LCpl E’s shirt, and then he grabbed LCpl E’s buttocks under his sweatpants. LCpl E immediately left the room and reported the incident.

Soon after, LCpl E, Cpl P, and two other Marines confronted the appellant. “Accounts of what happened next differed at trial. What is clear is that an altercation ensued during which Cpl [P] punched the appellant in the face and one other Marine took the appellant to the ground in a ‘full mount’ hold. Following this scuffle, LCpl [E] reported the earlier events of the evening.” Slip op. at 4. An investigation followed, and the appellant was charged with the sexual offenses involving Cpl P, LCpl P, and LCpl E. “After charges were referred to trial, several additional Marines also reported similar unwelcome physical contact from the appellant.” Slip op. at 4.

Before trial, the Government moved to admit evidence that the appellant had a sexual interest in men. Slip op. at 7. The Government offered this evidence to show “intent and a ‘common scheme [] that when [the appellant] gets drunk, [he] finds a junior Marine or a Marine equal to him, somebody that he feels that he can get close to, and encroaches on their physical space in his intoxicated state, and progressively increases his touching with the intent to sexually gratify himself.’” Slip op. at 9 (quoting Record at 144) (changes in original). This looks a lot more like a propensity basis than the non-propensity bases of intent or common scheme (where the Government would use the other acts as evidence of the appellant’s intent or plan on a specific, charged occasion), and the Defense opposed the Government motion. But the military judge granted the motion, finding specifically that one of the uncharged alleged incidents “was sufficiently similar to the charged offenses . . . and therefore probative of the appellant’s ‘intent to gratify his sexual desire.’” Slip op. at 7. The military judge also found that the probative value of uncharged incident was not substantially outweighed by the danger of unfair prejudice. The CCA finds no error in this analysis, concluding:

As she differentiated between the probative value and attendant prejudice, and distinguished this evidence from other uncharged acts offered by the Government, we afford her great deference and conclude that there lies no clear abuse of discretion.

Slip op. at 10. But the military judge also permitted the Government to introduce the testimony of a LCpl J, who testified (over Defense objection) about seeing the appellant approach LCpl B on the catwalk outside LCpl B’s barracks room the evening before the second incident (where LCpl B awoke to find the appellant naked in his bed). The CCA finds that the military judge erred by permitting this testimony.

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In a lengthy published opinion issued last month in United States v. Cron, No. 38138, 73 M.J. 718 (A.F.Ct.Crim.App. Jun. 27, 2014) (link to slip op.), the Air Force CCA affirms the adjudged and approved sentence of life without the possibility of parole for the appellant’s convictions, entered in accordance with his pleas of guilty, of conspiracy to commit premeditated murder, premeditated murder, and wrongfully impeding an investigation, in violation of Articles 81, 118, and 134. The appellant was also sentenced to reduction to E-1, total forfeitures, and a dishonorable discharge.

The CCA considers numerous thorny issues, ultimately finding no prejudicial error. The appellant, “a 30-year-old Staff Sergeant (SSgt) stationed at his fourth duty station,” brutally murdered his paramour’s husband, Technical Sergeant Eccleston. Slip op. at 2. The murder was planned with the victim’s wife, and the appellant tried to cover it up, but he eventually confessed and a capital referral followed. There were extensive PTA negotiations to avoid the possibility of a death sentence. The appellant’s third PTA offer was accepted, making the case non-capital but providing no other protections. In addition, the PTA included provisions that waived most objections, waived all waivable motions, waived discovery, waived continued funding for expert consultants, and required the appellant to answer questions about, and testify against, his paramour.

The appellant did not object to the PTA at trial, but on appeal he asserted that the PTA created “an ‘empty ritual’ rather than a full sentencing proceeding,” and that “the potential for the death penalty in this case caused a coercive environment during the PTA negotiations.” Slip op. at 11. The CCA rejects these arguments, explaining that “waiver of evidentiary objections is a permissible term of a pretrial agreement,” slip op. at 13 (marks and citations omitted), “a promise to testify as a witness in the trial of another person is a permissible term of a PTA,” slip op. at 14 (marks and citations omitted), “a criminal defendant may knowingly and voluntarily waive many of the most fundamental protections afforded by the Constitution,” slip op. at 15 (marks and citations omitted), and noted that because it was the appellant who proposed these terms, the court is “not inclined to deprive the appellant of the benefit of his bargain.” Slip op. at 15.

The PTA provisions were certainly broad (perhaps even to an unprecedented degree), but I think it’s hard to second-guess the appellant’s decision to agree to them. Still, one provision gets special attention from the CCA. The appellant agreed to “waive my right to all future discovery with the exception of discovery pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and R.C.M. 701(a)(6) or any limitation by Rules for Courts-Martial (R.C.M.) 705(c)(1)(B).” Slip op. at 16. “The effect of the provision in this court-martial was that it limited the production of possible impeachment evidence.” Slip op. at 17. Specifically, the CCA notes that friends and family member of the victim who testified during the sentencing hearing said things “that indicated they had mental health records.” Slip op. at 16. However, “at best, the appellant proffers the mental health records may have revealed the witnesses had more than one reason for seeking counseling unrelated to the horrific and senseless murder of their friend.” Slip op. at 17. The court concludes that this “provision, as applied to this case, did not convert this proceeding into any empty ritual and did not violate public policy.” Slip op. at 17.

The CCA also considers the relationship between the military judge and the trial counsel. “The military judge was Colonel (Col) Vance Spath. An Article 39(a), UCMJ, 10 U.S.C. § 839(a), session was held on 28 November 2011. When the court-martial reconvened on 30 January 2012, Col Don Christensen had detailed himself as trial counsel.” Slip op. at 5. “Along with being trial counsel in the present case, Col Christensen was also the Chief of the Government Trial and Appellate Counsel Division (AFLOA/JAJG)—a position he continues to hold.” Slip op. at 6. The appellant argued that Col Christensen’s appellate duties creates a conflict of interest because he “defends the decisions of military judges and trial counsel” and particularly because he was defending the actions of Colonel Spath who served as the trial counsel in the capital case of United States v. Witt, No. 36785, __ M.J. __ (A.F.Ct.Crim.App. Jun. 30, 2014) (discussed here). The CCA rejects both this argument and a claim of ineffective assistance of counsel asserting that the trial defense counsel conducted insufficient voir dire of the military judge.

The court also rejects an assertion of error related to the trial counsel’s sentencing argument:

Trial counsel referred to the appellant as “a coward and a pathetic murderous person,” and to him and Ms. Eccleston [the victim's wife] as “two pathetic wastes of space.” Trial defense counsel objected and trial counsel countered that the appellant referred to himself as a coward and pathetic in his admitted confession. The military judge overruled the objection.

Slip op. at 18. The trial counsel also also referred to the victim’s wife as “a witch,” but the CCA notes that “evidence had earlier been introduced that Ms. Eccleston attempted to practice witchcraft and to cast a spell on her husband to hurt him.” Slip op. at 18 n.8. The CCA finds that “the arguments by trial counsel were well within bounds,” and that “the limited references to the appellant and his co-conspirator with disparaging terms were not outside the bounds of fair comment or beyond the norm.” Slip op. at 19.

When two people get really drunk, arguably to the point of “substantial incapacitation,” and engage in sexual activity, who is the perpetrator and who is the victim? That issue is one that I’ve spit-balled before with fellow attorneys, and one which I was hoping would eventually be raised by someone in a real case. That finally happened in the case of United States v. Redmon, No. 201300077 (N-M.C.C.A. 26 Jun 2014).

In Redmon, the appellant and the victim, IT3 S, attended a farewell party thrown by a third party in honor of the appellant. The victim consumed a substantial amount of alcohol throughout the night, both before and during the party, as did the appellant. The party ended around 0300 and the victim was having difficulty walking. She was helped back to her apartment, about a 10 minute walk away, by the appellant and other sailors. Once at her apartment, the victim undressed and sat in the shower for approximately 45 minutes. Another sailor attempted to remove her from the shower, but required the appellant’s assistance to do so. They got her out and began to dress her, however she began to vomit. Eventually though, they were able to clothe her and lay her on a futon. The appellant later lay down to sleep with her.

The appellant’s roommate and her boyfriend were in the apartment that night, and both left the apartment around 0530. At that time, the appellant and victim were “spooning,” but nothing else appeared to be amiss. The victim alleged that after falling asleep, the next thing she remembers was waking up naked from the waist down, with the appellant penetrating her vagina. She began to cry, pushed the appellant away, dressed and went to sleep in her bed. After this, the appellant got a ride back to his barracks room with a friend, who observed semen on the appellant’s boxers when he changed clothes in his barracks room. Read more »

In United States v. Piolunek, 72 M.J. 830 (A.F.Ct.Crim.App. Oct. 21, 2013), rev. granted, __ M.J. __ (C.A.A.A.F. Apr. 1, 2014), and cert. for rev. filed, __ M.J. __ (C.A.A.F.  Apr. 18, 2014) (CAAFlog case page), the Air Force CCA extended CAAF’s decision in United States v. Barberi, 71 M.J. 127 (C.A.A.F. 2012) (CAAFlog case page), regarding general verdicts of guilt in child pornography cases where some of the images are not actually child pornography, to include a three-prong test for prejudice based on “(1) The quantitative strength of the evidence; (2) The qualitative nature of the evidence; and (3) The circumstances surrounding the offense as they relate to the elements of the offense charged.” Piolunek, 72 M.J. at 838. The AFCCA used this test to affirm Senior Airman Piolunek’s convictions for receipt and possession of child pornography despite finding that some of the twenty-two images submitted to the members did not meet the definition of child pornography (and were therefore constitutionally protected). CAAF will review this decision in the upcoming term.

I’m aware of a few cases in which the AFCCA employed the Piolunek prejudice analysis. One is United States v. Huey, No. 38139 (A.F.Ct.Crim.App. Dec. 4, 2013) (slip op. available here), rev. granted, __ M.J. __ (C.A.A.F. May 12, 2014) (discussed here), and cert. for rev. filed., __ M.J. __ (C.A.A.F. Jun. 11, 2014) (discussed here). In Huey the CCA found that 18 of the 112 images considered by the military judge (sitting as a general court-martial) “either do not meet the legal definition of sexually explicit conduct or the age of the person depicted cannot reasonably be determined” slip op. at 6, but nevertheless affirmed the findings because “the evidence of the appellant’s guilt is overwhelming,” slip op. at 8. The issues before CAAF in Huey are functionally identical to those in Piolunek.

Another case applying Piolunek is United States v. Rieber, No. 38226, 2014 WL 2511366 (A.F.Ct.Crim.App. May 22, 2014) (slip op. not avail. on the CCA’s website) (update: slip op. avail. here). The appellant in Rieber was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of knowing and wrongful possession of one or more visual depictions of a minor engaged in sexually explicit conduct, in violation of Article 134. He was sentenced to confinement for 90 days, reduction to E-3, and a bad-conduct discharge. On automatic review the AFCCA found that “186 of the 198 images that served as the possible basis for the appellant’s conviction do not meet the legal requirements to be visual depictions of a minor engaging in sexually explicit conduct and are, therefore, constitutionally protected.” Rieber at *5. Testing for prejudice, the CCA found that the quantitative strength of the remaining images favored the appellant while the qualitative strength favored the Government. But it reversed the conviction on the basis that “the circumstantial evidence supporting the knowing possession of these images is not overwhelming.” Rieber at *6. The Government has not (yet) appealed Rieber.

The AFCCA decided a third such case a few weeks ago: United States v. Thompson, No. 38269 (A.F.Ct.Crim.App. Jun. 17, 2014) (link to slip op.). The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of three specifications of knowingly and wrongfully possessing one or more visual depictions of minors engaging in sexually explicit conduct, in violation of Article 134. He was sentenced to confinement for two years, reduction to E-1, total forfeitures, and a bad-conduct discharge. The CCA finds that “8 of the 216 charged files do not constitute child pornography and therefore are constitutionally protected.” Slip op. at 8. But it affirms the convictions after concluding “beyond a reasonable doubt that the eight constitutionally-protected images were unimportant in relation to everything else the military judge considered. Thus, any error in the factfinder’s consideration of these 8 images among the 216 admitted in evidence was harmless.” Slip op. at 10.

I anticipate CAAF will grant review (and the Government will cross-certify) Thompson on the same issues as in Piolunek and Huey.

If any readers are aware of other AFCCA cases applying Piolunek, please let me know about them in the comments or by email to zack@caaflog.com

In an order dated July 2, 2014, in United States v. Long, No. 2014-02 (link to order), the Air Force CCA rejects a Government appeal and affirms a military judge’s ruling dismissing four novel specifications of violation of clause 2 of Article 134 (conduct of a nature to bring discredit upon the armed forces). The specifications alleged that the accused used a computer communication system to importune a person under 18 years of age to engage in sexual contact with him (two specifications) and provided a sexually oriented image to a person under 18 years of age (two specifications), both of which are offenses under Mississippi state law. The military judge dismissed the specifications after finding that they were preempted by Article 120b (2012).

The preemption doctrine states that Article 134 cannot be used to prohibit conduct already prohibited by Congress in the other punitive Articles. Preemption applies where (1) Congress intended to limit prosecutions for certain conduct to offenses defined in specific articles of the UCMJ, and (2) the charged offense is composed of a residuum of elements of an enumerated offense under the UCMJ. The preemption doctrine evolved from the conclusion that “the Government could not ‘eliminate vital elements’ from the offenses specified in [the other] article[s] and charge the remaining elements as an offense in violation of Article 134.” United States v. Wright,  5 M.J. 106, 110 (C.M.A. 1978) (quoting United States v. Norris, 8 C.M.R. 36, 39 (C.M.A. 1953)). 

The CCA’s opinion reveals that the Government’s charging decision eliminated the vital element of Article 120b (2012) that a child is someone under the age of 16; the Mississippi statute applies to anyone under the age of 18:

Two of the charged specifications allege the appellee used a computer communication system to importune a minor to engage in sexual contact. The Government argues that, by looking at the Mississippi law, there are five elements of this offense, which are different from those in the Article 120, UCMJ, offense. However, these elements are no different than a charged offense for a violation of Article 120b, UCMJ. We are not convinced by the Government’s argument that use of “a computer communication system” is materially different from using “any communication technology.” The allegation is covered by Article 120b, UCMJ, for lewd acts by intentionally communicating indecent language to a child or committing indecent conduct with a child, or, under Article 80, UCMJ, for soliciting a child to engage in sexual contact. The only difference between the charged offense and the Article 120b, UCMJ, offenses is that the UCMJ applies to communications with children under 16 years of age, while the Mississippi law applies to minors under 18 years of age. The charged specification involves “the dropping of an element of a specifically denounced offense” and converting it to a broader age range. See United States v. Herndon, 36 C.M.R. 8, 11 (C.M.A. 1965). The Government cannot use Article 134, UCMJ, to enlarge the age range of an enumerated offense. See Williams v. United States, 327 U.S. 711 (1946) (Prosecutors could not use Arizona state law under Assimilative Crimes Act to broaden scope of offense to those under 18 years of age when Congress has defined federal law with a narrower scope as to only those under 16 years of age).

The other two specifications allege that the appellee provided “a sexually oriented image to wit: a photograph of an erect penis” to a person who had not attained the age of 18 years. We also find that this is nearly identical to the Article 120b, UCMJ, offense of “intentionally exposing one’s genitalia . . . to a child by any means, including via any communication technology.” Again, the only substantive difference is that the Government seeks to expand the age range to include persons over 16 years of age but under 18 years of age.

Order at 4-5 (emphases added).

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Two weeks ago, in this post, I discussed the Army CCA’s unpublished opinion in United States v. Hardin, No. 20120051 (A.Ct.Crim.App. Jun. 12, 2014) (link to unpub op.), in which the court found the appellant’s conviction for housebreaking to be legally sufficient but factually insufficient because the court was not convinced that the appellant’s entry into a bedroom was itself unlawful.

Shortly after the CCA decided Hardin, it issued a published decision in United States v. Schwin, No. 20130538, __ M.J. __ (A.Ct.Crim.App. Jun. 26, 2014) (link to slip op.), finding that the military judge erred in accepting the appellant’s plea of guilty to housebreaking for entering into the base skeet club building from which the appellant stole money. The appellant was a member of the Fort Rucker Skeet and Trap Club (a private organization). The club had a building on Fort Rucker that members could access 24 hours a day, and as a club member the appellant had authorized access to this building.

Using his authorized access, the appellant entered the building and stole money from a locked deposit box where members would pay shooting fees when utilizing the facility while no staff were present. For this theft he was charged with and pleaded guilty to one specification each larceny and housebreaking, at a special court-martial composed of a military judge alone. He also pleaded guilty to two specifications of violation of a general regulation for wrongfully maintaining privately owned firearms in his barracks and vehicle. He was sentenced to confinement for four months, reduction to E-1, and a bad-conduct discharge.

Housebreaking requires two elements: An unlawful entry and the intent to commit a crime therein. The Government’s theory of the housebreaking charge in this case was that:

[I]t’s an unlawful entry because of [appellant's] intent. He went in on this occasion … used his key, though it was issued— with the sole intent of committing a crime … [which] does constitute housebreaking. Though he had lawful access, the fact that he used his lawful access … to gain access for unlawful purposes constitutes housebreaking.

Slip op. at 6 (emphasis added). Accepting this theory during the plea inquiry, the military made a finding that:

[Appellant] did not have permission to enter the building for an illegal purpose, and certainly did not have permission to enter the building to perpetrate a theft once inside. So for the purpose of considering whether or not the factual scenario meets the criteria for housebreaking, the Court accepts the conclusions of counsel and [appellant] that this does constitute housebreaking.

Slip op. at 7. But the CCA reverses on the basis that “unlawful entry is not established through a showing of mere ingress with contemporaneous criminal intent.” Slip op. at 4 (quoting United States v. Williams, 15 C.M.R. 241, 246 (C.M.A. 1954)) (marks omitted). In other words, to gain access for unlawful purposes does not constitute housebreaking. The court explains that unlawful entry “is distinct from the second element of specific intent to commit a crime upon entry.” Slip op. at 4. And on the fact of this case it finds:

[T]he fundamental legal question to be answered [is]: absent the offense committed therein, was appellant’s entry unlawful—that is, did he trespass? In this case, appellant did not trespass when he entered the club. If appellant had not committed larceny, his entry, presence, and activities in the Skeet Club were authorized, permitted, and invited. Appellant is not guilty of housebreaking, but certainly guilty of larceny.

Slip op. at 8 (citation omitted). The court therefore reverses the appellant’s housebreaking conviction and grants a slight reduction to the sentence to confinement (meaningless to the appellant as the time was undoubtedly already served).

In an unpublished opinion in United States v. Chatman, No. 20120494 (A.Ct.Crim.App. Jun 11, 2014) (link to slip op.), Chief Judge Glanville (the reserve counterpart to Chief Judge Pede) writes for a unanimous three-judge panel finding that the appellant’s statements to law enforcement agents were improperly admitted because they were the product of unlawful inducement or influence, or derivative of the same. As a result, the court dismisses the three specifications each of larceny and of burglary, of which the appellant was convicted contrary to his pleas of not guilty by a general court-martial composed of a military judge alone, and for which the appellant was sentenced to confinement for 14 months, reduction to E-1, and a bad-conduct discharge.

The charges arose out of a barracks larceny in which the appellant, who remained-behind while members of his unit participated in a field exercise, used a master key to burglarize the barracks rooms of three soldiers. One of the victims saw what he believed to be his stolen property in the appellant’s off-base residence, and alerted authorities. The appellant was brought in for questioning while his residence was searched (but no stolen property was found). The appellant was questioned on two occasions over the next 36 hours: First in the late-night hours of December 10, 2011, and second on December 12, 2011. A footnote “takes judicial notice of the fact that 10-12 December 2011 was a Saturday through Monday.” Slip op. at 16 n.10.

Portions of each of these interrogations were videotaped. The appellant made numerous incriminating statements, eventually confessing to the crimes. The confessions were offered into evidence at trial by the Government, and admitted by the military judge over Defense objection.

During both interrogations a military police officer identified only as Investigator E made numerous promises to the appellant. Early in the first interview, “Investigator E told the appellant, ‘I have a real big influence with the prosecutor as far as what happens to subjects.’” Slip op. at 3. Then, “after nearly an hour, Investigator E discussed how appellant would not be charged for simply possessing stolen property.” Slip op. at  3. Investigator E later left the room and purportedly spoke with the prosecutor, returning to coax admissions out of the appellant:

After further give and take, appellant told Investigator E that Carlos gained entry into the barracks rooms using a master key and appellant was simply holding the property for Carlos at his apartment. Upon hearing this, Investigator E advised appellant, in part, “[I]f you wouldn’t have told that [sh--] you were gonna get charged. . . . But now I’ve got something to go off of. So I’m gonna stay true to my word and I’m not gonna charge you. But there’s gonna be some conditions on that . . . . [Y]ou gotta cooperate with us, from here on out. . . . I mean you’re a part of this now, on our side. So you’re not gonna get [f---ed] with; aint gonna charge you.” Investigator E added, “[R]ight now you’re on my side. You went from being the person I was trying to get; now you’re on my side.”

At the close of the interview and after advising appellant again that he was not being charged, Investigator E placed limits on what appellant could do and who appellant could speak with. Investigator E told appellant: “I told you I was gonna work with you. I aint [bullsh---ing] you because you aint getting charged. . . . Be loyal to me and help us out with this investigation and we’ll – - I mean we’ll be loyal to you.” After telling appellant he was “gonna walk tonight,” Investigator E advised appellant that “there’s gonna be conditions on who you can talk to about this [sh--]. You can’t talk to anybody about this [sh--], nothing, this is it.” Investigator Echaracterized the discussions as “protected information.” Investigator E ended the interview by referencing the garrison commander and MPI’s influence over him, stating: “we report directly to the garrison commander, so, whatever we need to do to help you out, as long as you help us out, it can get done.”

Slip op. at 4. “Thirty-six hours after the initial MPI interview, appellant was back at the MPI office.” Slip op. at 5. The appellant was questioned by a new agent, Detective B. “Unlike Investigator E, Detective B did not promise appellant anything.” Slip op. at 5. But after the appellant made more admissions,

Investigator E entered the interview room, again making promises of no prosecution. This time, Investigator E promised not to prosecute whoever was currently holding the property for appellant. Subsequently, the focus of the discussions was the immediate retrieval of the stolen property.

Slip op. at 5. Soon after this, the appellant received a phone call and then the stolen property was returned to the appellant’s residence where it was identified by the victims. The appellant was then prosecuted at a general court-martial.

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In an unpublished opinion in the Marine Corps case of United States v. Brown, No. 201300181 (N-M.Ct.Crim.App. Jun. 30, 2014) (link to slip op.), the NMCCA reverses the appellant’s convictions for false official statement, assault consummated by battery, communicating a threat, and two specifications of wrongfully possessing firearms after having been convicted of a misdemeanor crime of domestic violence, finding that through the admission of improper character evidence “the Government effectively handed the members a canvas with the appellant painted as an abusive and aggressive individual prone to extreme responses to seemingly mild provocation.” Slip op. at 12. Senior Judge Ward writes for a unanimous three-judge panel.

The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation. He was sentenced to confinement for 15 years, reduction to E-1, total forfeitures for 12 months, and a dishonorable discharge. The convening authority approved the sentence as adjudged.

The charges involved domestic disputes between the appellant and his wife:

At trial, the appellant faced charges for communicating a threat to EB [his wife] on 1 April 2012 and two specifications of assault and battery of EB on 10 June 2012; one specification for making a false official statement for his comment [to command representatives, claiming that he didn't own a gun] following the IRO hearing; and four specifications of 18 U.S.C. § 922(g)(9) for wrongfully possessing two firearms and ammunition in the trunk of his car.

Slip op. at 4. However, at trial the wife’s responses to the trial counsel’s direct examination “were noncommittal or less than forthcoming,” and the CCA’s opinion casts her as a better witness for the Defense than for the Government. Slip op. at 6-7. Perhaps for this reason Judge Ward notes that “in light of several evidentiary challenges, the Government served notice to the defense of evidence it intended to offer at trial pursuant to MIL. R. EVID. 404(b).” Slip op. at 5. This evidence included prior domestic disturbance 911 calls and an encounter between the appellant and a Mr. G where the appellant allegedly pointed a pistol at Mr. G (who then refused to cooperate with military police in any investigation and the appellant was not charged with an offense in relation to this incident). The incident with Mr. G also included evidence of the appellant’s infidelity to his wife. Judge Ward explains:

During the pretrial motion hearing, the Government argued that the previous 911 calls and related police reports provided evidence of the appellant’s intent and plan to abuse his wife, and further defeated any accidental cause of EB’s injuries on 10 June 2012. The Government then posited that the incident involving Mr. G revealed the appellant’s knowledge of and intent to possess one of the firearms later recovered from his vehicle. This was due to the similarity between the pistol Mr. G described and the one later recovered from the appellant’s vehicle.

Ultimately, the military judge agreed, concluding that the brandishing of a firearm was relevant to show knowledge to rebut any claim of mistake or accident concerning the Lautenberg violations. Similarly, he concluded that the previous 911 calls were relevant to rebut any claim of mistake or accident on the charge of spousal battery. The military judge also concluded that this evidence was not substantially outweighed by the danger of unfair prejudice.

Slip op. at 5. If you’re scratching your head on this reasoning, you’re not alone. The CCA concludes that the military judge erred in admitting this evidence, and that he conducted an erroneous 403 balancing. But Judge Ward repeatedly puts the onus on the unidentified trial counsel for using this evidence for purely propensity purposes.

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