CAAFlog » Courts of Criminal Appeals » CCA Opinions

Cases involving Military Rule of Evidence 807 – the residual exception to the hearsay rule – are relatively rare. CAAF last considered the issue in United States v. Czachorowski, 66 M.J. 432 (C.A.A.F. 2008) (discussed here), and it’s been almost four years since the last time we noted a CCA case involving the rule (see this post discussing United States v. Sparks, No. 201000275 (N-M. Ct. Crim. App. Feb. 15, 2011), rev. denied, __ M.J. __ (C.A.A.F. Jul. 27, 2011)).

However, last month the Air Force CCA considered the residual exception in an unpublished opinion in United States v. Betts, 38476 (A.F. Ct. Crim. App. Nov. 20, 2014) (link to slip op.). The court found that a military judge erroneously applied the exception to admit statements during the sentencing phase of a court-martial. However, the court found that this error was harmless because the case involved pleas of guilty and sentencing by a military judge alone, and the judge considered the hearsay for a limited purpose that was cumulative with other evidence.

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Having recently written about consent and mistake of fact as to consent as defenses to adult sexual offenses under the UCMJ, I was very interested in the NMCCA’s decision in United States v. Howard, No. 201300346 (N-M. Ct. Crim. App. Nov. 26, 2014) (per curiam) (link to slip op.). The CCA considered a sexual assault conviction where the military judge instructed the members on the defense of consent but not on the affirmative defense of mistake of fact as to consent. The NMCCA heard oral argument in the case (audio available here), with the following issue:

A military judge must instruct on an affirmative defense if the record contains some evidence of the defense that the members could choose to credit. Here, relying on the victim’s testimony about her actions before, during, and after the sexual act with the appellant, the military judge found some evidence raising the affirmative defense of consent under Article 120(r), Uniform Code of Military Justice, 10 U.S.C. § 920(r) (Supp. 2007). Yet the military judge found that same evidence insufficient to raise the affirmative defense of mistake of fact as to consent under Article 120(r), UCMJ. Was this error?

But in its decision the CCA doesn’t actually answer this question, instead concluding that any error was harmless.

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In a published decision in United States v. Williams, __ M.J. __, No. 38406 (A.F. Ct. Crim. App. Dec. 8, 2014) (link to slip op.), a three-judge panel of the Air Force CCA finds that the appellant’s conviction for possession of child pornography is multiplicious with separate convictions for receipt and distribution of the same child pornography.

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In United States v. Riley, 72  M.J. 115 (C.A.A.F. 2013) (CAAFlog case page), CAAF reversed the appellant’s plea of guilty to kidnapping of a minor in violation of Article 134 – an offense that triggers a sex offender registration requirement – after it concluded that “the military judge’s failure to ensure that [the appellant] understood the sex offender registration requirements of her guilty plea to kidnapping a minor results in a substantial basis to question the providence of [the appellant’s] plea.” 72 M.J. at __, slip op. at 18.

A recent published decision, a three-judge panel of the Army CCA rejects retroactive application of CAAF’s decision in Riley, denying a petition for extraordinary relief in the nature of a writ of coram nobis. Washington v. United States, No. 20140826, __ M.J. __ (A. Ct. Crim. App. Nov. 25, 2014) (link to slip op.).

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The difference between a picture of an unclothed minor and contraband child pornography has been a significant military law topic over the past few years. For instance, in this post from May, 2013, I analyzed the NMCCA’s decision in United States v. Rapp, No. 201200303 (N-M. Ct. Crim. App. Apr. 30, 2014), that reversed guilty pleas to child pornography offenses on the basis that some of the images did not meet the federal definition of child pornography. Additionally, in this post from May, 2014, Phil analyzed the ACCA’s decision in United States v. Blouin, 73 M.J. 694 (A. Ct. Crim. App. May 28, 2014) that affirmed guilty pleas after making the opposite conclusion. CAAF subsequently granted review in Blouin in October (discussed here).

CAAF was also deeply divided in its recent decision in United States v. Moon, 73 M.J. 382 (C.A.A.F. Aug. 11, 2014) (CAAFlog case page), where it reversed pleas of guilty for wrongful possession of images of “nude minors” that did not amount to contraband child pornography.

Now, in a recent unpublished opinion in United States v. Lang, No. 20140083 (A. Ct. Crim. App. Oct. 31, 2014) (link to slip op.), a three-judge panel of the Army CCA reverses the appellant’s pleas of guilty to wrongful possession and distribution of child pornography after it concludes that the two images at issue are not actually child pornography.

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In a two-page summary disposition in United States v. Rose, No. 20130068 (A. Ct. Crim. App. Oct. 24, 2014) (link to slip op.), pet. for rev. filed, __ M.J. __, No. 15-0218/AR (C.A.A.F. Dec. 9, 2014), the Army CCA finds that:

We agree with appellant that the evidence is factually insufficient to support his conviction for wrongful sexual contact. See United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The government did not prove beyond a reasonable doubt that appellant pressed his genitalia against the buttocks of the alleged victim.

Slip op. at 1-2. The court affirms the appellant’s other convictions, entered contrary to his pleas of not guilty at a general court-martial composed of a military judge alone, of aggravated sexual assault and assault consummated by a battery, in violation of Articles 120 and 128. The opinion provides no other facts of the case.

In a published opinion in United States v. Matthews, __ M.J. __, No. 1382 (C.G. Ct. Crim. App. Oct. 20, 2014) (link to slip op.), a three-judge panel of the Coast Guard CCA finds that a convening authority was disqualified from taking post-trial action in the appellant’s case because the convening authority is a pilot who flew search and rescue sorties searching for the appellant after the appellant deserted. As a result, the CCA remands the case for a new post-trial action by a different convening authority. Chief Judge McClelland writes for the panel, while Judge Gill dissents.

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Note: For the next few days I’m going to try to catch up on some significant CCA opinions that I’ve collected over the past few months.

In an unpublished opinion in United States v. Gardner, No. 20120193 (A. Ct. Crim. App. Aug. 28, 2014) (link to slip op.), pet. for rev. filed, __ M.J. __, No. 15-0043/AR (C.A.A.F. Sep. 18, 2014), the Army CCA reviewed the appellant’s convictions of three specifications of aggravated sexual assault upon a substantially incapacitated person, in violation of Article 120 (2006), based upon the following facts:

Appellant took advantage of his drunk, sleepy, and sick sister-in-law, JF, by twice penetrating her vagina on separate and distinct occasions during the course of one night, and, as part of the initial assault, inserting his fingers into her vagina. He did this, he admitted, to take revenge upon his wife, JF’s sister, who he suspected of cheating on him. This admission was accompanied by other damning and self-incriminating statements made by appellant, to include: that JF never consented to any sexual activity with him; that she was passed out; that she was out of it; that he raped her; and that after he had done so he whispered in her ear “I just raped you.”

JF’s testimony corroborated appellant’s admissions to CID. She was drunk, sick from the alcohol consumed, tired, and in and out of sleep throughout the night and during appellant’s assaults upon her. She remembered appellant waking her up, penetrating her with his fingers and his penis, but testified that she was unable to move or respond or utter any words at all. She was at a loss as to why she was so paralyzed.

Slip op. at 2. In the face of these damning facts, the appellant offered the following opinion of a forensic toxicologist expert witness:

that in his opinion a person who could remember what happened to him and perceive an assault committed upon him could not have been completely incapacitated by alcohol; that one paralyzed by alcohol would neither be conscious nor have memories of any events that occurred during the paralysis.

Slip op. at 3. But the military judge prohibited the testimony at trial, concluding that it “contradicts the statutory definition of substantial incapacitation,” that it “would be equivalent to ‘human lie detector’ testimony,” and that it was “insufficiently reliable to admit under Daubert.” Slip op. at 3. The CCA finds that this ruling was error, but that it was harmless.

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In a published opinion in United States v. Thomas, __ M.J. __, No. 201300357 (N-M. Ct. Crim. App. Nov. 28, 2014) (link to slip op.), the Navy-Marine Corps CCA reverses a forcible rape conviction on factual sufficiency grounds after concluding that “the Government treated ‘force’ and ‘unlawful force’ as if they were separate, unrelated concepts,” and explaining that:

Contrary to trial counsel’s argument, unlawful force is not a separate, distinct, and lesser type of force that can sustain a conviction for rape. Rather, the definitions set forth in Article 120 must be read together. There must be force, as defined by the statute, and that force must be unlawful. In other words, the Government must prove beyond a reasonable doubt that the accused used a weapon; used such physical strength or violence as is sufficient to overcome, restrain, or injure a person; or inflicted physical harm sufficient to coerce or compel submission by the victim, and that those acts were “done without legal justification or excuse.” See 10 U.S.C. § 920(g)(5)–(6).

Slip op. at 4 (emphasis in original). Having defined the force necessary to support a conviction for forcible rape, the CCA’s “review of the record fails to discern any evidence that the appellant used force, as defined in the statute, to commit a sexual act.” Slip op. at 6.

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In a published opinion in United States v. Stellato, __ M.J. __, No. 20140453 (A. Ct. Crim. App. Nov. 17, 2014) (link to slip op.), a three-judge panel of the Army CCA grants a Government interlocutory appeal of a military judge’s order that dismissed a child sexual assault case with prejudice as a remedy for Government discovery violations. Senior Judge Tozzi writes for the panel.

The opinion contains a lengthy recitation of facts. The case “involves purported discovery violations over the course of several months. The accused, a mobilized reservist, is charged with various acts of molesting his biological daughter, MS, from 2007 through 2009. At that time, MS was between less than three years and less than five years of age.” Slip op. at 2.

I’m going to focus on the discovery issue that I think is the most significant: A dispute over the late disclosure of the existence of a “box” (and the term is used in quotes throughout the opinion) of evidence that was assembled by the alleged victim’s mother, Mrs. MS (notably, the alleged victim and her mother share the same initials – the CCA identifies the alleged victim as “MS” and the mother as “Mrs. MS”):

On approximately 9 February 2013, Mrs. MS, with the assistance of friends, compiled what witnesses described as a “box” of evidence relating to this case. Mrs. MS had compiled this evidence over several years since the allegations were first made and kept it in a large, color-coded binder several inches thick. She kept this binder in a green plastic file box, which she kept on the kitchen table in her home.

Slip op. at 3. The lead trial counsel (the prosecutor), Captain KJ, learned about the “box of evidence” in early 2013. But its existence wasn’t disclosed to the Defense until about a year later, in March 2014. By that time the trial had already been continued twice due to Defense concerns about incomplete discovery, and Captain KJ had been replaced as trial counsel (apparently because he was going to deploy, but the opinion doesn’t make this clear):

[T]he government revealed to the defense and the military judge in the R.C.M. 802 conference that there was a “box” of information in the possession of Mrs. MS that had not been provided to the government, let alone disclosed to the defense, and would not be available for trial as it was still in West Virginia [trial was to occur at Fort Bliss, Texas -zds]. This was the first time the “box” had been disclosed to the defense or the military judge, despite the defense receiving some of its contents in piecemeal discovery after being scanned by a friend of Mrs. MS and forwarded on a thumb drive to the government.

Slip op. at 8. The military judge then granted a third continuance of the trial dates, and the Defense filed “a motion to dismiss with prejudice due to prosecutorial misconduct in the form of repeated discovery violations.” Slip op. at 8. After hearing evidence and argument, the military judge granted the Defense motion, dismissing the charges with prejudice on discovery grounds. The Government appealed, and the CCA reverses, finding that “the military judge based his ruling upon an erroneous view of the law and, accordingly, abused his discretion.” Slip op. at 2.

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In a pair of cases decided in 2012, the Supreme Court held that the Sixth Amendment guarantees criminal defendants a right to effective assistance of counsel during plea negotiations. In Missouri v. Frye, the Court held that “as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.” 132 S. Ct. 1399, 1408 (2012). In Lafler v. Cooper, the Court held that when a defendant rejects a plea deal on the advice of counsel, that rejection will not be prejudicial unless there is a showing of “a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed.” 132 S. Ct. 1376, 1385 (2012).

In a recent published opinion in United States v. Valmont, __ M.J. __, No. 20110644 (A. Ct. Crim. App. Oct. 22, 2014) (link to slip op.), the Army CCA considers a claim of ineffective assistance of counsel (IAC) in the plea negotiation process. The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of premeditated murder in violation of Article 118(a). He was sentenced to confinement for life without the possibility of parole, reduction to E-1, total forfeitures, and a dishonorable discharge. The convening authority approved the sentence as adjudged.

The IAC claim is primarily an assertion that the appellant’s five defense counsel (two military, three civilians) failed to communicate to him plea offers from the Government that would have limited his confinement to a term of years. The court’s recitation of facts is four pages of dense he-said / they-said claims, but it’s clear that the appellant rejected an initial offer that would have limited his confinement to 50 years, that he wanted (but never formally proposed) a deal that limited his confinement to no more than 30 or 40 years, and that there were ongoing informal discussions by email between the appellant’s civilian defense counsel and the trial counsel.

The CCA rejects the IAC claim. This rejection is mostly based on the informality of the discussions between the trial counsel and the defense, noting that Frye only requires communication of formal plea deals.

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The current version of Article 120 involves four separate statutes: Article 120 (adult sexual offenses), Article 120a (stalking), Article 120b (child sexual offenses), and Article 120c (other sexual misconduct). All except for Article 120a are relatively new; they were enacted as part of the National Defense Authorization Act for Fiscal Year 2012 (discussed here) (see also our Article 120 (2012) category) and they took effect on June 28, 2012.

Among other things, Article 120c prohibits “indecent viewing, visual recording, or broadcasting.” These three offenses involve knowingly and wrongfully viewing, recording, or broadcasting “the private area of another person, without that other person’s consent and under circumstances in which that other person has a reasonable expectation of privacy.” Article 120c(a).

But the reach of Article 120c(a)(1) is now significantly limited by a published decision from a three-judge panel of the Navy-Marine Corps CCA in United States v. Quick, __ M.J. __, No. 201300341 (N-M. Ct. Crim. App. Oct. 31, 2014) (link to slip op.). Senior Judge Fischer writes for the panel, finding that the offense of indecent viewing requires that an accused actually view the real-life private area of a person. The CCA reverses the appellant’s conviction for merely viewing a recording (made surreptitiously) of another person’s private area, finding that the specification fails to state an offense.

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In a per curiam opinion in United States v. Freeberg, No. 201400172 (N-M. Ct. Crim. App. Sep. 30, 2014) (link to unpub. op.), a three-judge panel of the NMCCA reverses a plea of guilty to adultery in violation of Article 134, with this important reminder:

In 2002, the President issued Executive Order 13,262, 67 F.R. 18773, 18778 (2002), amending the MCM to create a separate explanation of the terminal element unique to adultery offenses. See United States v. Jonsson, 67 M.J. 624 (C.G.C.C.A. 2009). Since then, the MCM provides, “To constitute an offense under the UCMJ, the adulterous conduct must either be directly prejudicial to good order and discipline or service discrediting. Adulterous conduct that is directly prejudicial to good order and discipline includes conduct that has an obvious, and measurably divisive effect on unit or organization discipline, morale, or cohesion, or is clearly detrimental to the authority or stature of or respect toward a servicemember.” MCM (2012 ed.), Part IV, ¶ 62c(2). “Discredit means to injure the reputation of the armed forces and includes adulterous conduct that has a tendency, because of its open or notorious nature, to bring the service into disrepute, make it subject to public ridicule, or lower it in public esteem.” Id. The explanation then goes on to provide a non-exhaustive list of factors to consider when determining whether adulterous acts are prejudicial to good order and discipline or service discrediting.

This new explanation operated to narrow the scope of adultery as an offense under the UCMJ.

Slip op. at 5. The CCA reversed the plea after finding that military judge failed “to ensure the appellant understood the meaning of prejudice to good order and discipline and conduct of a nature to bring discredit upon the armed forces not only in a generic Article 134 sense, but in the narrower sense defined by the President specifically for the offense of adultery.” Slip op. at 6 (marks omitted).

The Coast Guard CCA’s unpublished opinion in United States v. Sullivan, No. 20140925 (C.G. Ct. Crim. App. Sep. 25, 2014) (link to unpub. op), is notable for a number of reasons. For starters, the case involves a Coast Guard Captain (O-6) who was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of a single specification of wrongful use of cocaine in violation of Article 112a. He was sentenced to pay a $5,000 fine and to be reprimanded. That sentence does not trigger automatic review by the CCA, but the Judge Advocate General of the Coast Guard referred the case to the court under Article 69(d).

The CCA considered numerous assertions of error, ultimately rejecting them and affirming the findings and sentence. One assertion of error – involving the rebuttal testimony of a Government witness – caught my attention.

The charge against the appellant was based on a positive urinalysis result. The appellant’s defense was based on the assertion that his wife’s drug use resulted in the appellant’s “innocent and unwitting exposure to cocaine.” Slip op. at  12. In support of this assertion, the appellant’s wife “testified during the defense case concerning her procurement, storage and consumption of cocaine.” Slip op. at 12. But in the Government’s case in rebuttal:

Inspector D, a Senior Inspector for the Contra Costa County District Attorney’s Office, was offered and qualified as an expert in street-level narcotics. (R. at 1957.) He testified, based on his experience as an undercover investigator, concerning the standard process for purchasing powder cocaine, and typical practices for using powder cocaine. (R. at 1959-69.) His descriptions differed in several ways from Appellant’s wife’s descriptions of her experience and practices.

Slip op. at 11. The Defense objected to the expert’s testimony. The CCA explains that “the military judge conducted a lengthy Article 39(a) session—which included a full preview of Inspector D’s testimony—and heard extensive argument from counsel before determining that Inspector D had specialized knowledge that would be helpful to members charged with determining the facts of the case,” but it does not otherwise describe the judge’s reasoning in permitting the testimony. Slip op. at 12.

What immediately comes to mind is last term’s decision in United States v. Flesher, 73 M.J. 303 (C.A.A.F. Jul 8, 2014) (CAAFlog case page), where a divided CAAF reversed a conviction for aggravated sexual assault after determining that the judge failed to conduct the appropriate analysis prior to allowing a former sexual assault response coordinator to testify as an expert witness, and that the record ultimately did not support allowing such testimony. In particular, Judge Ohlson’s opinion of the court focused on the six-part test from United States v. Houser:

(1) the qualifications of the expert, (2) the subject matter of the expert testimony, (3) the basis for the expert testimony, (4) the legal relevance of the evidence, (5) the reliability of the evidence, and (6) whether the probative value of the testimony outweighs other considerations.

Flesher, slip op. at 14 n.3 (citing Houser, 36 M.J. 392, 397 (C.M.A. 1993)). In Sullivan, the Coast Guard court doesn’t explain what – if any – analysis the judge conducted using these factors, and it seems like the testimony is unlikely to satisfy at least some of these factors. Instead, the CCA’s opinion focuses on value of the testimony for impeachment of the appellant’s wife.

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In United States v. Petee, No. 20130128 (A. Ct. Crim. App. Sep. 24, 2014) (link to unpub. op.), a three-judge panel of the Army CCA rejects the appellant’s guilty plea to assault consummated by a battery in violation of Article 128. The charge was “based on the fact that [the appellant] injected dilaudid [a Schedule II controlled substance with the generic name of hydromorphone] into the arm of a minor who asked him to do it.” Slip op. at 2. But the plea was based on an odd premise:

During the providence inquiry, the military judge premised appellant’s guilty plea on the notion that “a person may not lawfully consent to having something done to them that is unlawful” and that “a person cannot lawfully consent to an unlawful touching.”

Slip op. at 2. The CCA rejects this premise:

The parties do not offer, and we do not find, any authority to embrace such a broad diminution of the consent defense to simple battery. We recognize the possibility that one might providently plead guilty to a charge of simple battery under these circumstances. However the legal premise of such a plea would be based on the notion that such activity is sufficiently offensive to public order as to permit liability under Article 128. See generally United States v. Bygrave, 46 M.J. 491 (C.A.A.F. 1997); United States v. Arab, 55 M.J. 508 (Army Ct. Crim. App. 2001). An accused might admit that the act of injecting a potentially injurious illegal drug into the arm of a drunken minor is sufficiently offensive to the public generally as to permit conviction under Article 128. However, neither that legal premise, nor reference to those facts as the basis for criminal liability in that context, was discussed with appellant. Therefore, we hold that appellant’s plea to this offense is insufficiently intelligent to warrant its acceptance. See United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008).

Slip op. at 2.