NMCCA dismisses a conviction for consensual homosexual sodomy in United States v. Stratton.  It’s unpublished but worth the read.

Appellant was accused of forcible sodomy, but was convicted of consensual sodomy.  That means Lawrence and Marcum had to be discussed.  Read this case for the following:

• A discussion and reiteration of a “private” location is . . .  The discussion may be fruitful beyond an Article 125 case.
• A discussion of and that “the military judge’s ruling that the general disruption to the unit [of the investigation of the charges] implicated the third Marcum prong is untenable (emphasis added).
•   When a TC proffers something to the court, double-tap that for accuracy, and vice-versa.
• Broad talismanic incantations are as unhelpful in analyzing Marcum factors as they are in Mil. R. Evid. 404(b), situations.
• The court avoided the issue of whether Marcum “effectively incorporated new elements into the Article 125, UCMJ, charge and that these new elements should have been properly plead and submitted to the trier of fact. Essentially, the appellant argues that the Marcum factors are questions of fact to be answered by the trier of fact.”  Slip op. at  5, 6 n.1.
• The court avoided the issue:

  I.   POST-LAWRENCE, SODOMY IS NOT A CRIME UNLESS THERE ARE ADDITIONAL CRIMINAL ELEMENTS THAT FURTHER A LEGITIMATE STATE INTEREST.  OVER DEFENSE OBJECTION, THE MILITARY JUDGE INSTRUCTED THE MEMBERS THAT SODOMY WAS A LESSER INCLDUED OFFENSE OF THE CHARGED CRIME OF FORCIBLE SODOMY.  THE MEMBERS THEN RETURNED A VERDICT OF NOT GUILTY TO FORCIBLE SODOMY, BUT GUILTY TO SODOMY.  THE THEORY OF PROSECUTION FOR SODOMY WAS BASED ON ADDITIONAL FACTS ALLEGED BY THE GOVERNMENT AFTER THE TRIAL BEGAN.  THESE FACTS WERE: (1) NOT ELEMENTS DEFINED BY CONGRESS UNDER ARTICLE 125, UCMJ, (2) NOT ALLEGED ON THE CHARGE SHEET; AND (3) NOT SUBMITTED TO THE MEMBERS AND PROVED BEYOND A REASONABLE DOUBT.  IS APPELLANT’S CONVICTION FOR CONSENSUAL SODOMY UNCONSTITUTIONAL IN LIGHT OF THESE DUE PROCESS VIOLATIONS?

In United States v. Sweeney, 70 M.J. 296 (C.A.A.F., 2011), CAAF found that portions of a urinalysis specimen custody document were “plainly and obviously testimonial,” and that their admission constituted plain error. In its recent opinion in United States v. Alicea, No. 201100366 (N-M Ct. Crim. App., January 12, 2012) , the N-MCCA applied Sweeney to find that certain notations on the urinalysis specimen custody document present formalized, conclusory affirmations.

In addition to reporting the official test result for any positive sample in Block G, Block H certifies “that the laboratory results . . . were correctly determined by proper laboratory procedures, and that they are correctly annotated.” In the instant case, Block G reflected that the appellant’s sample tested positive for “cocaine,” and Block H was signed by two Final Certifying Laboratory Officials (FCLOs), LT L.A. Estralla, who was in training, and R. Flowers.
Slip op. at 3.

In the instant case, Blocks G and H of the specimen custody document, present a formalized, conclusory affirmation that is identical to the certification in Sweeney. Consequently, we find these two portions of the specimen custody document to be testimonial hearsay and their admission, over defense objection, to be in error: the FCLOs who signed the attestation were not subject to cross-examination, and the testimony of Mr. Sroka as a substitute or surrogate witness did not satisfy the Confrontation Clause. Moreover, the testimony of Mr. Sroka concerning the certification was also admitted in error, as an expert may not act as a conduit for repeating the inadmissible testimonial hearsay of another.
Slip op. at 5.

The exclusion of Block G is significant, as it appears to be a summary of the underlying findings. At this rate, the excluded portions of a urinalysis report may soon exceed the admissible.

Some months ago I predicted that United States v. Fosler, 70 M.J. 225 (C.A.A.F., 2011), is “a case with a very short lifespan.” It’s too early to see just how wrong I was, but the list of Fosler trailers continues to grow with last month’s grants.

However, counsel practicing before the N-MCCA remain on the cutting edge (Fosler was a Marine Corps case, after all), boldly seeking the next radical theory to challenge the conventional wisdom. Alas, in a recent opinion, the N-MCCA stands firm. The court finds that where an accused pleaded guilty to attempts to commit violations of Article 134, in violation of Article 80, it was unnecessary to allege terminal elements in the specification because, in part, “there is no legal requirement to overtly plead, or otherwise include by necessary implication, the particularized elements of the target offense, for attempts.” United States v. Sokolis, No. 201100415, slip op. at 2-3 (N-M Ct. Crim. App., December 27, 2011).

Of course, the N-MCCA also affirmed the findings in Fosler.

Last week, NMCCA issued this published en banc opinion analyzing Fosler in the context of a guilty plea breaking restriction case in which the spec’s sufficiency wasn’t challenged at trial.  United States v. Hackler, __ M.J. __, No. NMCCA 201100323 (N-M. Ct. Crim. App. Dec. 22, 2011) (en banc).  Judge Flynn wrote for the majority.  Chief Judge Reismeier, joined by Senior Judge Maksym, joined in the majority opinion but wrote separately to provide an extended analysis of the post-Fosler state of the law.  Judge Perlak concurred in the result, concluding that it was sufficient for his resolution of the case that a breaking restriction spec necessarily implies prejudice to good order and discipline.

Other than some Serianne-related housekeeping, (edit: and Col Sullivan’s coverage of the Brissette Article 62 appeal), it’s been a while since we’ve written anything about the Courts of Criminal Appeals. However, they’ve been busy:

The Air Force CCA finds that specifications alleging indecent acts with a child under Article 134, that do not allege a terminal element, provide sufficient notice of criminality, and affirms. The court notes that the appellant did not object to the specifications, did not object to the trial military judge’s instructions regarding the terminal elements, and concedes that specifications challenged for the first time on appeal will be liberally construed in favor of validity. United States v. Wilson, No. 37486 (A. F. Ct. Crim. App., December 15, 2011).

The Army CCA, while evaluating the factual sufficiency of a conviction for violation of a lawful general regulation that prohibited relationships between permanent party personnel and those undergoing initial entry training (IET), the court noted that the accused was a MOS trainee – neither permanent party nor undergoing IET. So, perhaps in the spirit of the season, it rules: “Equating MOS trainees to permanent party – grandmothers to toads?” United States v. Jones, No. 20090401 (A. Ct. Crim. App., December 14, 2011).

The Coast Guard CCA makes quick work of “anomalies” in the record and affirms, despite “ambiguous” findings on one charge, “no announcement” of findings to the specification in another, “irregular renditions of pleas,” a confusing promulgating order, and a charge sheet with a specification (to which the appellant pleaded guilty of a LIO) lined out by the trial counsel with the notation “withdrawn and dismissed without prejudice.” United States v. Barker, No. 1340 (C. G. Ct. Crim. App., November 17, 2011).

The Navy-Marine Corps CCA, summarily affirming findings and sentence, drew a concurring opinion that appears to be a clemency recommendation. Noting the operational history of the appellant (a 12-year Staff Sergeant convicted, pursuant to his pleas, of a series of relatively-small larcenies from the Marine Corps Exchange), including his receipt of a Purple Heart, Judge Harris wonders if faster action by the Exchange and the command wouldn’t have avoided the “truly sad” end of the appellant’s career. United States v. Booker, No. 201100432 (N-M Ct. Crim. App., December 13, 2011).

The Air Force Court today issued this 2-1 opinion ruling for the defense in a Fosler-ish Article 62 appeal.  United States v. Brissette, Misc. Dkt. No. 2011-07 (A.F. Ct. Crim. App. Dec. 19, 2011).  Judge Harney wrote for the majority joined by Chief Judge Orr.  Judge Roan dissented.

Brissette arose from an Article 134 indecent acts with a minor spec that didn’t allege any of Article 134′s three clauses. After arraignment — and after Fosler was argued at CAAF but before it was decided — the government moved to amend the spec to add that the conduct was of a nature to bring discredit on the armed forces.  The military judge granted the motion over defense objection.  The accused was convicted of the spec with certain exceptions.  CAAF announced its Fosler decision after trial but before the record had been authenticated.  The defense moved that the military judge reconsider his earlier ruling.  He did and concluded that in light of Fosler, the addition of the “of a nature to bring discredit on the armed forces” language was a major change made post-arraignment over the accused’s objection.  The military judge dismissed the spec without prejudice.  The government appealed.

Today, AFCCA affirmed the military judge’s ruling.  First, the court held that the spec was to be scrutinized strictly because the defense had challenged it at trial:  “trial defense counsel challenged the specification when he objected to the Government’s motion to add the terminal element.  In arguing that the amendment would constitute a major change requiring that ‘the Article 32 be reopened,’ trial defense counsel substantively complained of the same defect as that in Fosler — the charge and specification, as drafted, did not implicate the terminal element, and thus did not provide him with adequate notice as to what he must defend against.”  Brissette, Misc. Dkt. No. 2011-07, slip op. at 4.

The key question in the case, the majority observed, was “whether the terminal element was implied” by the original specification.  The majority rejected the argument that the language “engaging in indecent acts with a minor” necessarily implies Article 134′s “of a nature to bring discredit upon the armed forces” clause.  The majority reasoned:

Alleging that the conduct was “indecent” and committed with a person not yet 16 years old does not expressly “set forth” that the Government would try to prove at trial that the acts alleged resulted in some discredit to the Air Force or the armed services at large.  Surely, one may intuit that the public would generally disapprove of the acts alleged here, and extend some of that disapproval to the Air Force, insofar as the appellee was affiliated with it.  Intuition, however, does not deliver notification, by necessary implication or otherwise, of what element(s) the appellee must defend against.

Id., slip op. at 5-6.  The majority continued:

We are further compelled to disagree that the specification’s allegations sufficiently narrowed down the realm of possible terminal elements the appellee could have been expected to defend against; even if the terminal element(s) could be implied, nothing in the specification indicated which one(s) did.  Arguably, the conduct described could be either conduct prejudicial or service discrediting, or both.  An inescapable point of Fosler is that the appellee had a right to know which.  Fosler, 70 M.J. at 230.

Id., slip op. at 6.

Judge Roan disagreed, concluding that the original specification necessarily implied clause (1) or clause (2) of Article 134:

Based on the explicit misconduct detailed in the specification, I have no difficulty concluding the appellee was given fair notice of both the express and implied elements that he had to defend against.  The specification identifies the purported victim, details the indecent acts he is said to have engaged in, states the extensive time frame the indecent acts were said to have occurred, alleges that the purported victim was under 16 years of age, and indicates the appellee’s military affiliation. Unlike an act of adultery, which standing alone does not constitute an offense under the UCMJ, few could seriously argue that a specification charging an adult male noncommissioned officer with touching a young girl for the purpose of gratifying his sexual desires fails to notify him that such conduct is prejudicial to good order and discipline or of a nature to bring discredit on the armed forces.

Id., slip op. at 7 (Roan, J., dissenting). Judge Roan continued:

Much as a military judge instructs a court-martial panel not to divest themselves from the use of their common sense and knowledge of the ways of the world when evaluating evidence, the same must be said when determining whether an accused alleged to have committed crimes akin to being called a pedophile would know that such acts were also service discrediting.  . . .  The very definition of indecency implicates the morals of society, clearly an indication that appellant’s conduct, as alleged, would call the Air Force into disrepute and thereby be service discrediting if he were convicted.  Hewing closely to the offense specifically charged, the specification fairly informs the appellant of the charge against him, enables him to prepare a defense, and protects him against the possibility of double jeopardy.

Id., slip op. at 8 (Roan, J. dissenting).  He added in a footnote:  “This is not to say that Clause 2 is per se included in an allegation of indecent acts with a minor.  The Government, of course, must always prove beyond a reasonable doubt that the appellee’s conduct was of a nature to discredit the armed forces.  Rather, the issue is simply whether that element is necessarily implied in the charged offense.”  Id., slip op. at 8 n.6 (Roan, J., dissenting).

Congress amended Article 120, UCMJ, effective 1 October 2007. This new Article 120, codified at 10 U.S.C. § 920, is really a remarkable piece of legislation. It encompasses 36 offenses, it contains a legal impossibility, error can result no matter how the members are instructed, it compelled the government to certify a case to CAAF even though the government prevailed at the CCA, you could hurt yourself trying to explain it, it is apparently constitutional, and now it is remarkably flexible.

This week the N-MCCA released an unpublished opinion in United States v. Wilkins, No. 201000289 (N-M Ct. Crim. App., 29 Nov 2011) (hereinafter Wilkins II). This case was considered on remand from CAAF for reconsideration in light of McMurrin, Girouard, Bonner, and Alson, after the N-MCCA affirmed in United States v. Wilkins, No. 201000289 (N-M Ct. Crim. App., 24 March 2011) (hereinafter Wilkins I). In Wilkins I, the N-MCCA found (1) no prejudicial error in the burden-shifting scheme for an affirmative defense under Article 120 because the military judge did not instruct the members of any burden on the defense, and (2) no prejudicial error in instructing the members that abusive sexual contact under Article 120(h) is a LIO of aggravated sexual assault under Article 120(c). The second issue is the subject of the remand.

The facts are best described in Wilkins II:

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While I’ve been on blogging hiatus, I haven’t been doing my daily survey of CCA rulings and PACER check for developments in Article III court cases affecting the military justice system.  It turns out I missed a couple of doozies.  Here’s one.

On 1 November, the Coast Guard Court dismissed a petition for writ of mandamus brought by a CONVENING AUTHORITY, VADM Brown, USCG.  Brown v. Tousley, Misc. Dkt. No. 001-12 (C.G. Ct. Crim. App. Nov. 1, 2011).  It seems that Admiral Brown directed that two courts-martial were to be tried at Alameda, California.  The military judge determined that Seattle would be a better venue and ordered that the trials proceed there.  The military judge cited R.C.M. 801(a) as support for his position.  The discussion to R.C.M. 801(a)(1) states:  “Subject to R.C.M. 504(d)(1), the military judge may also determine the place of trial.  See also R.C.M. 906(b)(11).”  R.C.M. 504(d)(1) says the CA “may designate where the court-martial will meet.”  R.C.M. 906(b)(11) states, “The place of trial may be changed when necessary to prevent prejudice to the rights of the accused or for the convenience of the Government if the rights of the accused are not prejudiced thereby.”  The discussion to that Rule states, “When it is necessary to change the place of trial, the choice of place to which the court-martial will be transferred will be left to the convening authority, as long as the choice is not inconsistent with the ruling of the military judge.”

Because motions to reconsider the military judge’s rulings remained pending, the Coast Guard Court dismissed Admiral Brown’s petition for extraordinary relief.  Does anyone know whether, and if so how, Judge Tousley ruled on the motions to reconsider?

Where all think alike, no one thinks very much.

Although journalist and author Walter Lippmann would have appreciated a splintered NMCCA’s unpublished opinion in United States v. Caldwell, I’m not surprised to see that the court quickly decided on its own motion to reconsider the case en banc.

Private Lazzaric Caldwell, a Marine stationed in Japan and troubled by a host of personal and discipline difficulties, attempted suicide by cutting his wrists.  He had just learned that his commanding officer had ordered him into pretrial confinement.

At court-martial, Caldwell pleaded guilty to order violations, larceny, and self injury.  He pleaded not guilty but was convicted of another specification of an order violation alleging that he used spice.  On appeal, Caldwell raised five assignments of error, among them an assertion that the military judge should have ordered a R.C.M. 706 examination, that the guilty plea to larceny was improvident, and that public policy ought to prohibit conviction for self injury in the case of suicide attempts.  If you’re keeping score at home, that’s three charges, six specifications (it would appear), and five assignments of error.  Now go sharpen your pencil and we’ll add the panel of three CCA judges.

For our purposes, it’s easiest to deal with Senior Judge Maksym’s dissenting opinion first.  Senior Judge Maksym concluded that the trial judge should have ordered a 706 board.  Having reached that conclusion, he was unable to affirm any findings or sentence.

That leaves Senior Judge Booker and Judge Beal to deal with the remaining assignments of error, and when one of them found merit in one, that vote, combined with Senior Judge Maksym’s 706 vote, tipped the balance on the charge.

As Judge Beal would have affirmed all the findings and sentence, the swing vote proved to be Senior Judge Booker’s.  He agreed with the appellant that his role in the larceny of a belt from a retail store–which seemed to essentially amout to a wink and a nod to his girlfriend as she stole the belt–didn’t amount to larceny.  Regarding the self injury charged under Article 134, Senior Judge Booker was unconvinced that the act of self injury in question was sufficently prejudicial to good order and discipline or that it had a tendency to discredit the service. 

Because Senior Judge Booker was confident that the military judge would have at least imposed a bad-conduct discharge for the remaining offenses (Caldwell had a prior summary court-martial in his record) the court affirmed the discharge.  The court set aside a 180-day sentence to confinement.  The day after the date of the opinion NMCCA on its own motion ordered reconsideration en banc.   

The Coast Guard issued a published Melendez-Diaz decision last week (link here).  United States v. Byrne,  __ M.J. __ (C.G. Ct. Crim. App. Nov. 10, 2011).

The case was decided by the alliterative panel of Chief Judge McClelland, Judge McGuire, and Judge McTague.  Judge McGuire wrote for a unanimous panel.

While I disagree with parts of the court’s Melendez-Diaz analysis — suprise, surprise — what struck me the most forcefully about the opinion was the following line: ”In his sentencing argument, Trial Defense Counsel requested a bad-conduct discharge to ensure appellate review of the case.”  The military has an irrational appellate review system.  It lavishes attention on the propriety of many convictions that were the result of a guilty pleas while providing no judicial review for many contested convictions that may have enormous consequences to the accused — including being the basis for administrative separation from the military or a lifetime of sex offender registration.  The statement above, which was not further remarked upon, highlights the system’s irrationality.  Any justice system in which the defense counsel is arguing for a harsh punishment in order to be allowed to challenge the trial judge’s rulings before a higher court is a bad system.

AFCCA today issued another published opinion.  It isn’t yet on the court’s website, so we’ve posted it here.  United States v. Barnett, __ M.J. __, No. ACM 37578 (A.F. Ct. Crim. App. Nov. 14, 2011).  It’s an interesting decision dealing with the instructions that a military judge should provide to members after the military judge has awarded confinement credit.

SrA Barnett was a recruiter who found himself in legal trouble.  When he was implicated in misconduct, he was pulled from recruiting duty and then spent 16 months on Luke Air Force Base’s “Thunder Pride” team.  The Air Force Court’s opinion explains that the team “performs a variety of base details,” no doubt menial in nature.  The defense submitted a motion at trial arguing that SrA Barnett had been subjected to illegal pretrial punishment.  The military judge disagreed, but expressed concern about the length of SrA Barnett’s service on the Thunder Pride team.  According to a base instruction, with certain exceptions, Thunder Pride duty was supposed to be limited to 60 days.   The military judge was also concerned that required legal coordination hadn’t occurred after SrA Barnett was continued on the team past 60 days.  And he found that the command hadn’t sufficiently sought alternative duty for SrA Barnett.  As a result, the military judge awarded 100 days of administrative confinement credit. 

During its presentencing case, the defense presented evidence concerning SrA Barnett’s extended time on the Thunder Pride team.  When he instructed the members concerning sentencing, the military judge informed the members that he had awarded confinement credit:

In determining an appropriate sentence in this case, you should consider that the accused has been granted 100 days of confinement credit.  If you adjudge confinement as part of your sentence, these days will be credited against any sentence to confinement you may adjudge.  This credit will be given by the authorities at the correctional facility where the accused is sent to serve his confinement and will be given on a day-for-day basis.

During sentencing deliberations, the members returned and asked the military judge questions about the 100 days of confinement credit. After some dialogue between the members and military judge, one of the members asked:  “[J]ust for the example, if we consider 300 days as appropriate confinement but we know the hundred days credit is there but we think that the 300 days confinement should be actual confinement so we bump it up to 400 days because we know we’re going to subtract a hundred days; is that legal for us to do?”  The military judge responded:

What I can instruct you in this regard is that you should determine a sentence that you believe is appropriate for this accused for the offenses that he’s been found guilty of, considering all of the evidence that you’ve been presented in the case.  You’ve been provided the fact or circumstance that, if you adjudge confinement, then he will have 100 days of credit toward any period of confinement that is adjudged by the court.

During a follow-on Article 39(a) session, the defense asked the military judge to instruct the members that they are not allowed to determine an appropriate length of confinement and then add 100 days.  The military judge declined to do so, instead reiterating to the members that their “duty is to adjudge an appropriate sentence for this accused that yhou regard as fair and just when it is imposed and not one whose fairness depends upon actions that others may or may not take in this case.”  The members ultimately adjudged a sentence that included 8 months of confinement, a BCD, and reduction to E-1.

 The Air Force Court upheld the military judge’s approach.  The court held that when the defense presented evidence about SrA Bennett’s time in Thunder Pride team purgatory to the members as a matter in mitigation, a consequence is that the military judge should instruct the members that he had received confinement credit as a result.  The Air Force Court said that the defense serves as the “gatekeeper” for evidence concerning the cause of confinement credit.  If the defense chooses to open the gate, a consequence is that the military judge will instruct concerning the confinement credit.  On the other hand, the defense can leave the gate shut, not discuss the cause of the credit, and not have the members instructed concerning the credit.  The court analogized the situation to instances where the defense reveals to the members that the accused was subjected to nonjudicial punishment for an offense for which the accused is being punished at court-martial.  In such a case, the military judge must instruct the members concerning the credit the accused will receive as a result of the nonjudicial punishment.

The Air Force Court reasoned:  “In this case, where the appellant chose to introduce evidence of the 16 months he spent assigned to the ‘Thunder Pride’ team as evidence in mitigation, we find the military judge had a duty to instruct the members on the administrative credit awarded to they may consider that information during their deliberation on sentence.”  The court added that the military judge’s instruction “did not expressly or by inference invite the members to award extra confinement to compensate for the administrative confinement credit awarded by the military judge pursuant to the Article 13, UCMJ, motion.”  The court concluded, “We find no error in the sentencing instructions given.”

Judge Saragosa wrote for a unanimous panel.

The opinion seems to skirt what I see as the main issue in the case.  It’s fine that the military judge instructed the members concerning the confinement credit.  The idea is that the defense shouldn’t get two bites at the apple — convincing the military judge to reduce the sentence and then convincing members to reduce the sentence further on the same basis.  But that fairness concept should go both ways — the members canceling out the confinement credit is just as unfair as the defense seeking double credit.  Thus, the instruction that the defense requested — that the members be told they can’t determine an appropriate length of confinement and then tack on 100 days — seems correct.  But the military judge refused to give that instruction and nothing in the instructions as recounted by the Air Force Court conveyed to the members that they weren’t allowed to try to cancel out the confinement credit — or a portion of it — awarded by the military judge.  Perhaps CAAF will choose to speak to that issue.

This week’s published opinion from the N-MCCA in United States v. Danley takes aim at what is perhaps best described as a CYA strategy employed by trial defense counsel who represent an accused who wants a discharge. The court provides a detailed background of the issue:

In Blunk, the then-Court of Military Appeals recognized a recurring dilemma faced by defense counsel when a client’s foremost desire was to be separated from the service and, in furtherance of that desire, instructed his or her counsel to either: 1) actively seek a punitive discharge, or 2) withhold matters in mitigation or extenuation which might otherwise persuade the sentencing authority against imposing a punitive discharge. During the appellate review of cases following this pattern, appellants would oftentimes seek relief under a claim that their defense counsel was ineffective.

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The Air Force Court and the Navy-Marine Corps Court have each issued a published opinion this week; neither is yet posted on an official website, so we’ve uploaded them.

AFCCA’s knock-down, drag-out 2-1 IAC opinion in United States v. Datavs is available here.  United States v. Datavs, __ M.J. __, No. ACM 37537 (A.F. Ct. Crim. App. Nov. 9, 2011). 

NMCCA’s 2-1 opinion dealing with a DC’s improper revelation of attorney-client privileged information is available here.  United States v. Danley, __ M.J. __, No. NMCCA 201000677 (N-M. Ct. Crim. App. Nov. 8, 2011).

In what is certainly a preview of things to come, the N-MCCA denied:

pro se petitions for Extraordinary Relief in the Nature of Writ of Habeas Corpus and a Writ of Error Coram Nobis under the All Writs Act, 28 U.S.C. §1651(a). In the former, the petitioner alleges that the offenses for which he stands convicted are multiplicious and unreasonably multiplied and, in the latter, he alleges that all specifications fail to state an offense under United States v. Fosler.

United States v. Pack, No. 200400772 (N-M Ct. Crim. App., 31 October 2011) (convicted, contrary to pleas, of six specifications of indecent acts with a child in violation of Art. 134, UCMJ)

The petition for the Writ of Error Coram Nobis was denied as erroneously filed without discussion as to its merits (Footnote 3 reads: “As explained infra, we find a petition for a writ of error coram nobis to be erroneously filed whenever the petitioner remains in custody. Therefore we deny the petitioner’s coram nobis petition without prejudice to his right to refile as habeas corpus.”). However, while the pro se nature of the petition may shed some light on the defense bar’s feelings on the matter, the argument by appellate defense counsel before the N-MCCA in United States v. Hackler, where he distanced himself from the notion that Fosler might apply retroactively, is a pretty clear indicator.

The actual radioactivity of the Fosler fallout remains to be seen.

The Air Force Court of Criminal Appeals today issued its first post-Fosler Fosler decision. United States v. Martinez, No. ACM S31779 (A.F. Ct. Crim. App. Oct. 27, 2011). It appears to be a published decision, but its electronic file name includes a “u,” which is typically used to designate an opinion as unpublished. That ambiguity should be resolved once the opinion is posted on AFCCA’s website.

The case included a conviction to an Article 134 reckless endangerment offense based on the accused’s guilty plea. The reckless endangerment spec didn’t include an Article 134 terminal element. AFCCA upheld the conviction, holding that “appellant’s case is distinguishable from Fosler.” Id., slip op. at 5. The court noted the critical distinction that while the Article 134 spec in Fosler was challenged before findings, “this case involves a guilty plea to an unchallenged specification.” Id.

AFCCA reasoned that “[f]ailure to object to the issue of a specification’s legal sufficiency does not constitute a waiver [of] any such legal sufficiency.” Id., slip op. at 4. But, quoting one CAAF opinion and citing two more — including United States v. Watkins, 21 M.J. 208 (C.M.A. 1986) — the court stated that specs “challenged immediately at trial will be viewed in a more critical light than those which are challenged for the first time on appeal.” Id.

AFCCA determined that both the prejudicial to good order and discipline and service discrediting terminal elements were “necessarily implied” by the reckless endangerment spec’s language. Id., slip op. at 5.

The specification alleges that the appellant, while at Camp Bucca, Iraq, “wrongfully and recklessly . . . point[ed] a loaded Beretta M-9 at [A1C DV] and place[d] the decocking/safety lever in the fire position, [and that his] conduct [was]likely to cause death or grievous bodily harm to [A1C DV].” Without any other information about the attendant circumstances, the ordinary understanding of this language necessarily implies the concepts inherent in clauses 1 and 2 of Article 134, UCMJ, and thus can be interpreted to contain the terminal element. In a deployed wartime environment, there can be few offenses more obviously prejudicial to good order and discipline than one military member pointing a loaded firearm at another fellow Airman to the risk of grievous bodily harm or death. Similarly, the language of this specification necessarily implies that the conduct is of a nature to bring discredit upon the armed forces, as this reckless and risky conduct clearly has a tendency to bring the Air Force into disrepute or tends to lower it in public esteem. Therefore, this charge and specification are sufficient as they allege every element of the Article 134, UCMJ offense expressly or by necessary implication, and fairly informed the appellant of the charge against which he must defend.

Id., slip op. at 6 (alterations in original).

AFCCA also reasoned that “the appellant received further information about the nature of the charge prior to and at his court-martial,” observing that the accused entered into a stipulation of fact that “contained specific information about the terminal elements implied within the charged language. The appellant stipulated that his conduct was prejudicial to good order and discipline” and “would, if known to the general public, tend to lower the esteem of the armed forces.” Id. Also, during the Care inquiry, the military judge advised the accused about the terminal elements and the accused admitted that his conduct satisfied them.  Id., slip op. at 7.

Judge Harney wrote for a unanimous panel.