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In an unpublished, per curiam opinion in United States v. Castillejo, No. 20130507 (A. Ct. Crim. App. Jun. 20, 2016) (link to slip op.), a three-judge panel of the Army CCA reverses the appellant’s convictions of sexual assault and abusive sexual contact because:

During appellant’s trial the government played certain portions of the appellant’s interview with a U.S. Army Criminal Investigation Command (CID) Special Agent (SA). These excerpts were played for the panel without ever being admitted into evidence.

Slip op. at 2.

The defense did not object, but the CCA finds plain and obvious error, and prejudice:

Clearly the members were expected to consider the recording of the accused’s statement as evidence, and the only reason the members did not have access to the video during deliberations was due to technical insufficiencies in the government’s software. The substance of the video was likely highly prejudicial to the outcome of the trial. While it is not clear precisely what portions of the DVD were played before the panel, it is evident from the record that significant portions of the appellant’s interview with CID were played. This video was also referenced throughout the entire trial, and trial counsel referred to it as evidence for the panel to consider in its deliberations. Furthermore, despite acknowledging that the video statement was published to the panel but never admitted into evidence, the military judge gave no curative instruction to the panel. Accordingly, we cannot be reasonably confident that the accused was convicted on the basis of the evidence alone.

Slip op. at 4.

The CCA authorizes a rehearing.

In my article Consent and Mistake of Fact as to Consent: Defenses to Adult Sexual Offenses under the Uniform Code of Military Justice, 2014 Emerging Issues 7277 (2014) (discussed here), I analyzed the difference between a defense and an affirmative defense:

There is a significant difference between a defense and an affirmative defense (also called a “special defense” in military practice). A defense denies commission of an act that constitutes an element of the charged offense. An affirmative defense does not “deny[] that the accused committed the objective acts constituting the offense charged [but instead] denies, wholly or partially, criminal responsibility for those acts.” R.C.M. 916(a). Put differently, a defense disproves an element while an affirmative defense addresses something that isn’t an element but nevertheless avoids criminal responsibility. For example, it is a defense that an accused did not kill a victim, while it is an affirmative defense that even though an accused did kill a victim, the killing was done in self-defense.

In a recent decision in United States v. Teague, __ M.J. __, No. 20140394 (A. Ct. Crim. App. Mar. 15, 2016) (link to slip op.), the Army CCA notes this difference in rejecting the appellant’s appellate claim that the Government failed to disprove the affirmative defense of mistake of fact as to consent to his conviction for sexual assault of an incapacitated person in violation of Article 120(b) (2012). However, the statute requires that the prosecution prove, as an element of the offense, that the incapacity of the victim be “known or reasonably should be known by the [accused].” Article 120(b)(3)(A). Accordingly:

If the government proves that an accused had actual knowledge that a victim was incapable of consenting, then, by definition, such an accused could not simultaneously honestly have believed that the victim consented. Similarly, if the government proves that an accused should have reasonably known that a victim was incapable of consenting, the government has also proven any belief of the accused that the victim consented was unreasonable.

Slip op. at 3. Put differently:

[A] mistake of fact defense is “baked in” to the elements of the offenses themselves. If, by way of example, the offense requires only that an accused commit a sexual act with someone who was incapable of consenting, it would be an affirmative defense that the accused honestly and reasonably believed the person was capable of consenting. By requiring the government prove that appellant knew, or reasonably should have known that AC was incapable of consenting, the government was required to disprove any defense of mistake of fact appellant may have had with regards to AC’s ability to consent.

Slip op. at 4. The CCA finds the evidence sufficient to sustain the appellant’s conviction.

In a published decision in United States v. Meador, __ M.J. __, No. 20160419 (C.G. Ct. Crim. App. Apr. 19, 2016) (link to slip op.), a three-judge panel of the Coast Guard CCA grants a Government appeal and reverses the military judge’s ruling that dismissed a charge because the Article 32 Preliminary Hearing Officer (PHO) found that probable cause did not exist. Writing for the panel, Judge Judge holds that:

The statutory scheme does not make the PHO’s determination as to probable cause binding on the SJA or the convening authority (CA).

Slip op. at 2. The case involves the same military judge, and the CCA’s decision is authored by the same appellate military judge, as in the CCA’s recent decision in United States v. Mercier, __ M.J. __, No. 20160318 (C.G. Ct. Crim. App. Mar. 18, 2016) (discussed here), in which the CCA held that the Government must present some evidence to support a Staff Judge Advocate’s Article 34(a)(2) determination that s specification is warranted by the evidence.

In Meador, comparing the text of Article 32 to that of Article 34, Judge Judge finds that:

There is nothing in this statutory scheme that makes a determination of probable cause by the PHO a precondition of referral to a general court-martial, nor is there any language making the PHO’s determination binding on the SJA or the CA. By contrast, the SJA’s advice is a clear precondition of referral to a general court-martial. The statutory language consequently provides no support for the proposition that the PHO’s determination of probable cause is dispositive.

Slip op. at 3.

In an unpublished decision in United States v. Marsh, No. 38688 (A.F. Ct. Crim. App, Apr. 19, 2016) (link to slip op.), a three-judge panel of the Air Force CCA rejects an appellant’s claim that the military judge should have sua sponte recused herself because of her hostility toward his civilian defense counsel. Specifically, the appellant asserted that:

the military judge took a hostile tone toward his civilian defense counsel, especially when compared to her discussions with the trial counsel. Appellant bases his assertion on the military judge electing to hold his civilian defense counsel in contempt, while not taking a similar action against the trial counsel.

Slip op. at 3 (emphasis added). The civilian counsel is not identified in the CCA’s opinion and no punishment was imposed in connection with the finding.

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In United States v. Mercier, __ M.J. __, No. 20160318 (C.G. Ct. Crim. App. Mar. 18, 2016) (link to slip op.), a three-judge panel of the court denies a Government interlocutory appeal of a military judge’s ruling that found that a specification was improperly referred and dismissed the specification without prejudice.

The specification at issue alleges a violation of Article 134 by communicating certain indecent language to a civilian woman. The woman did not participate in the Article 32 preliminary hearing, and the preliminary hearing officer’s report concluded that there was no probable cause to believe that the accused communicated the language because of the lack of evidence. Nevertheless, the convening authority’s staff judge advocate recommended referral of the charge on the basis that “the specification is supported by the expected testimony of Ms. C.M.” Slip op. at 2.

The specification was referred to a general court-martial, the accused objected, and the military judge agreed:

On November 25, 2015, the defense moved to dismiss Specification 6 of Charge II, arguing that (1) since no probable cause existed to support Charge II, specification 6, referral to a general court-martial violated the accused’s right to due process; and (2) that the Article 34 advice was misleading in that it stated that the charges were “warranted by the evidence indicated in [the PHO’s report].” A hearing on the defense’s motion was held on 14 December 2015. The military judge granted the defense’s motion on January 5, 2016, dismissing Specification 6 of Charge II. The military judge also held that “even if a determination by the PHO that probable cause exists is not a necessary precondition to referral to a GCM . . . to the extent the Article 34 advice relied on evidence not before the PHO, it is defective.”

Slip op. at 3 (omission in original).

Judge Judge, writing for the CCA, addresses only the military judge’s conclusion that the staff judge advocate’s advice was defective because it relied on expected testimony that was not part of the preliminary hearing report, concluding that “the Article 34 advice was therefore defective.” Slip op. at 5.

This conclusion involves two significant holdings.

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R.C.M. 1001(b)(2) permits Government counsel to introduce documents from an accused’s service record during the sentencing phase of a court-martial to prove “the accused’s marital status; number of dependents, if any; and character of prior service.”

But in United States v. Ponce, __ M.J. __, No. 20140556 (A. Ct. Crim. App. Mar. 11, 2016) (link to slip op.), the Government was allowed to introduce (over defense objection) the appellant’s entire official military personnel file (OMPF), including:

appellant’s United States Office of Personnel Management Standard Form 86, Questionnaire for National Security Positions (revised September 1995) . . . In response to questions on the SF 86, appellant listed offenses he had been arrested for, charged with, or convicted of, and described his experimental use and possession of illegal drugs. All incidents and activities appellant entered on the SF 86 predated his military service, and several entries involved juvenile misconduct.

Slip op. at 2. The CCA finds error:

We hold the military judge erred by admitting the SF 86 included in PE 2 under the facts of this case. Information that is properly maintained in a military personnel record is not automatically admissible under R.C.M. 1001(b)(2).

Slip op. at 5. In particular, the CCA notes that the military judge focused his analysis of the SF 86 on whether it qualified as a business record rather than on whether it was probative of the appellant’s character of prior service as required by the R.C.M.:

In this case, the military judge lost sight of the service connection parameters of R.C.M. 1001(b)(2). In response to defense counsel’s hearsay objection, the military judge erred by exclusively focusing on whether the SF 86 in PE 2 was a business record under Mil. R. Evid. 803(6) that was properly authenticated in compliance with Mil. R. Evid. 902. While R.C.M. 1001(b)(2) provides an opportunity for the government to introduce evidence from appellant’s personnel records regarding his character of prior service, an SF 86 security clearance questionnaire filled with information that predates appellant’s enlistment is not admissible under this rule. The relevance of the SF 86 does not expand to reflect appellant’s military history merely because the document is in his OMPF.

Slip op. at 6.

That’s functionally the conclusion reached by a three-judge panel of the Navy-Marine Corps CCA in United States v. Guin, No. 201500062 (N-M. Ct. Crim. App. Feb. 11, 2016) (link to slip op.).

The appellant was charged with sexual assault and abusive sexual contact, in violation of Article 120(b) and (d) (2012), by committing a sexual act and causing sexual contact with the alleged victim “by causing bodily harm to her.” Slip op. at 4. The bodily harm at issue was the sexual activity itself, as the specifications alleged:

Abusive sexual contact: “Specification 1: Art.120(d): In that [the appellant], did, at or near Juffair, Kingdom of Bahrain, on or about 13 June 2013, cause sexual contact by [MASN LA], to wit: touching his penis with her hand, by causing bodily harm to her, to wit: touching his penis with her hand.”

Sexual assault: “Specification 2: Art. 120(b)(1)(B): In that [the appellant], did, at or near Juffair, Kingdom of Bahrain, on or about 13 June 2013, commit a sexual act upon [MASN LA], to wit: penetrating the vulva of [MASN LA], with his penis by causing bodily harm to her, to wit: penetrating the vulva of [MASN LA], with his penis.”

Slip op. at 4. This is a permissible method of charging these offenses because:

The term ‘bodily harm’ means any offensive touching of another, however slight, including any nonconsensual sexual act or nonconsensual sexual contact.

Article 120(g)(3) (2012). Nevertheless, the appellant moved to dismiss the specifications at trial, asserting that they fail to state offenses. Specifically, the appellant claimed that “by pleading the sexual activity as the basis of the alleged bodily harm, the Government fatally omitted the victim’s lack of consent as a separate element.” Slip op. at 4.

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While American law generally prohibits using a person’s bad character to prove them guilty of a criminal offense, Congress created two exceptions (for sexual offenses) with the enactment of Federal Rules of Evidence 413 and 414 in the Violent Crime Control and Law Enforcement Act of 1994, § 320935, 108 Stat. 1796, 2135 (1994). Those Rules were incorporated into the Military Rules of Evidence in 1998. Exec. Order No. 13086, 63 Fed. Reg. 30,065, 30078 (June 2, 1998). But for years those Rules were used to introduce evidence of uncharged acts against an accused, and not to argue that the charged acts themselves were evidence of an accused’s propensity to commit those same alleged acts.

However, the #6 Military Justice Story of 2015 was the use of charged sex offenses as propensity evidence under Mil. R. Evid. 413. Three courts of criminal appeals issued opinions in 2015 approving the use of charged sexual offenses as evidence of an accused’s propensity to commit the charged sexual offenses. United States v. Barnes, 74 M.J. 692 (A. Ct. Crim. App. May 8, 2015) (discussed here), pet. denied, 75 M.J. 27 (C.A.A.F. July 28, 2015); United States v. Bass, 74 M.J. 806 (N-M. Ct. Crim. App. Aug. 18, 2015) (discussed here); United States v. Maliwat, No. 38579 (A.F. Ct. Crim. App. Oct. 19, 2015) (unpub. op) (discussed here), pet. for rev. filed, __ M.J. __, No. 16-0155/AF (C.A.A.F. Nov. 25, 2015). The Army CCA justified this action in Barnes with the explanation that:

We find no prohibition against or reason to preclude the use of evidence of similar crimes in sexual assault cases in accordance with Mil. R. Evid. 413 due to the fact that the “similar crime” is also a charged offense.

74 M.J. 697-698. This justification faces significant challenges, as CAAF granted review in two Army cases earlier this year involving charged offenses used as propensity evidence under Mil. R. Evid. 413 and 414: United States v. Hills, No. 15-0767/AR (discussed here), and United States v. Moynihan, No. 16-0277/AR (discussed here).

Recently, though, in United States v. Williams, __ M.J. __, 20130582 (A. Ct. Crim. App. Feb. 29, 2016) (link to slip op.), the Army CCA reversed its own precedent regarding the instructions that a military judge must give to a panel considering such propensity evidence.

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In United States v. Rivera, No. 38649 (A.F. Ct. Crim. App. Feb. 18, 2016) (link to slip op.), the Air Force CCA considers convictions of forcible sodomy and dereliction of duty that were based on the following facts:

In the fall of 2011, Appellant and a female Airman, NT, began dating while assigned together at technical school training. Their relationship included consensual sexual contact. On 13 January 2012, the couple attended a birthday party for NT at a local hotel. Early the next morning, NT joined Appellant in a nearby hote room. She testified that once there, Appellant forced her to engage in oral sodomy.

The two continued their consensual sexual relationship after this incident. After Appellant was transferred to another base in February 2012, NT arranged to meet him at a hotel room on 10 March 2012. Based on NT’s account of this encounter, Appellant was charged with aggravated sexual assault for forcing her to engage in intercourse, aggravated sexual contact for grabbing her breast, and assault consummated by a battery for striking her with his hand. Appellant was acquitted of all of these March 2012 charges.

Upon returning to his base after the March 2012 incident, Appellant used his position as a member of the medical operations squadron to access NT’s medical records. He pled guilty to willful dereliction of duty for doing so.

Slip op. at 2. The appellant was sentenced to confinement for six months, total forfeitures, reduction to E-1, a reprimand, and a dishonorable discharge. On appeal he asserted numerous errors, including that “he was denied due process under the United States Constitution when he was tried by a panel consisting of five members who were not required to be unanimous in their vote to convict.” Slip op. at 2.

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The NMCCA made two significant holdings in United States v. Thomas, 74 M.J. 563 (N-M. Ct. Crim. App. 2014) (discussed here). First, it found the evidence of forcible rape – where the force was merely the appellant’s position on top of the victim – to be insufficient to prove “the use of such physical strength or violence as is sufficient to overcome, restrain, or injure.” Article 120(g)(5) (2012) (defining force). Second, it suggested that military judges conditionally dismiss specifications in the event of an unreasonable multiplication of charges:

When a military judge is presented with findings that reflect an unreasonable multiplication of charges that cannot be adequately addressed by merging the charges for sentencing purposes, the military judge must then decide whether to consolidate or dismiss the affected specifications. This is a significant decision that should be carefully considered by the military judge. Specifically, consideration should be given to what happens if, on appeal, the remaining offense is set aside. . . .

When consolidation is impracticable, such as when the guilty findings involve violations of different UCMJ articles, military judges should consider a conditional dismissal of one or more findings. Conditional dismissals “become effective when direct review becomes final in the manner described in Article 71(c), UCMJ” and therefore “protect the interests of the Government in the event that the remaining charge is dismissed during [appellate] review.” United States v. Britton, 47 M.J. 195, 203-05 (C.A.A.F. 1997) (Effron, J., concurring).

74 M.J. at 568-569.

Both of these holdings of Thomas are applied by the NMCCA in a recent decision in United States v. Parker, __ M.J. __, No. 201500158 (N-M. Ct. Crim. App. Feb. 18, 2016) (link to slip op.), in which a three-judge panel of the court finds that the evidence supporting the appellant’s conviction of rape is legally and factually insufficient (due to the lack of evidence sufficient to overcome the victim), and the court revives a conviction of sexual assault that was based upon the same sexual act and was conditionally dismissed by the military judge prior to the sentencing phase of the court-martial (as an unreasonable multiplication of charges).

In the wake of the AFCCA’s recent decision in Chapman v. United States, 75 M.J. 596 (A.F. Ct. Crim. App. Feb. 18, 2016) (discussed here), in which the court found that it lacks jurisdiction to consider a petition for a writ of habeas corpus because the court-martial is final under Article 76, the AFCCA recently decided two additional cases that also limit its jurisdiction to grant post-conviction relief.

In United States v. Williams, No. 2015-01 (A.F. Ct. Crim. App. Apr. 4, 2016) (link to slip op.), the CCA applies Chapman to a habeas petition in a case where the petitioner is on parole from a sentence of confinement adjudged by a court-martial, but appellate review in his case is complete. Writing for a three-judge panel, Senior Judge Mitchell concludes that “although a habeas petition is available for parolees, Petitioner’s writ is outside the military court’s limited jurisdiction.” Slip op. at 2.

In United States v. Refre, No. 2016-01 (A.F. Ct. Crim. App. Mar. 31, 2016) (link to slip op.), the CCA applies United States v. Arness, 74 M.J. 441 (C.A.A.F. 2015) (CAAFlog case page), to a coram nobis petition in a case where the adjudged sentence was below the Article 66(b) threshold for review. Writing for a three-judge panel, Senior Judge Mitchell concludes that “consideration of extraordinary relief is not ‘in aid’ of the CCA’s jurisdiction, because the CCA had none in the first place.” Slip op. at 3 (quoting Arness, 74 M.J. at 443).

In a published opinion issued yesterday in United States v. Roller, __ M.J. __, No. 201600008 (N-M. Ct. Crim. App. Mar. 31, 2016) (link to slip op.), a three-judge panel of the Navy-Marine Corps CCA finds that the staff judge advocate’s recommendation contained “an affirmative misstatement of the law that effectively precluded the appellant’s opportunity to receive clemency.” Slip op. at 3.

Specifically, the SJA improperly advised the convening authority about his power to act on the findings and sentence adjudged by the court-martial. The SJA wrongly claimed that the convening authority’s power to act on the findings and sentence was limited by the 2013 revision of Article 60(c).

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In a published decision in Chapman v. United States, 75 M.J. 596, No. 2014-16 (A.F. Ct. Crim. App. Feb. 18, 2016) (link to slip op.), a three-judge panel of the Air Force CCA finds that the court lacks jurisdiction to consider a petition for a writ of habeas corpus because the court-martial is final under Article 76. The decision is in harmony with a conclusion of the Army CCA in a capital case.

In 2002 the petitioner was sentenced to confinement for life with the possibility of parole for convictions of attempted premeditated murder, rape, sodomy, and burglary. The findings and sentence were affirmed and direct appellate review of the case is complete. United States v. Chapman, No. 35564 (A.F. Ct. Crim. App. 14 July 2006) (unpub. op)., aff’d, 65 M.J. 289 (C.A.A.F. 2007) (summary disp.), cert. denied, 552 U.S. 952 (2007).

Writing for the CCA, Senior Judge Fisher explains that:

We agree with our sister service court that military courts do not have jurisdiction over habeas corpus petitions when a court-martial has completed direct review under Article 71, UCMJ, and is final under Article 76, UCMJ. Gray v. Belcher, 70 M.J. 646, 647 (Army Ct. Crim. App. 2012); see also United States v. Denedo, 556 U.S. 904, 920 n.1 (2009) (Roberts, C.J., dissenting) (noting that the Supreme Court has never questioned that Article 76, UCMJ, limits the jurisdiction of military courts). *FN

We find additional support for this conclusion in the Supreme Court’s rationale when they concluded that military courts have jurisdiction over coram nobis petitions even after the proceedings are final under Article 76, UCMJ. Denedo, 556 U.S. at 916– 17. In doing so, they relied upon a coram nobis petition being an extension of the original proceeding. Denedo, at 912–13. Habeas corpus, conversely, is considered a separate civil case and record. See United States v. Morgan, 346 U.S. 502, 505 n.4 (1954). Consequently, a habeas corpus petition is not an extension of the direct appeal, and the rationale in Denedo does not apply to extend jurisdiction beyond the finality of Article 76, UCMJ.


*FN The Navy-Marine Corps Court of Criminal Appeals reached a different conclusion in Fisher v. Commander, 56 M.J. 691 (N-M. Ct. Crim. App. 2001). However, that court relied on Dew v. United States, 48 M.J. 639 (Army Ct. Crim. App. 1998), which was repudiated in United States v. Arness, 74 M.J. 441, 443 (C.A.A.F. 2015) [(CAAFlog case page)]. Because the underlying rationale has been rejected, we conclude Fisher is no longer persuasive authority on this issue.

Slip op. at 3.

In an en banc published opinion in United States v. Hackler, __ M.J. __, No. 201400414 (N-M. Ct. Crim. App. Mar. 17, 2016) (link to slip op.), the NMCCA rejects an appellant’s Equal Protection challenge to the enumerated offense of adultery in violation of Article 134.

The appellant was convicted of adultery in connection with an alleged sexual assault of a fellow Marine. On appeal he challenged this conviction, asserting:

an “equal protection violation,” arguing that adultery charged under Article 134, UCMJ exposes service members in opposite-sex marriages to a harsher punishment than it does to those in a same-sex marriage. The appellant also asserts third party standing to challenge the statute on grounds that it “den[ies] homosexuals marriage on the same terms and conditions” as heterosexuals.

Hackler, slip op. at 8. The crux of the appellant’s argument was that “adultery does not apply to service members with same-sex spouses because the offense requires ‘sexual intercourse,’ which he claims is defined such that only members of the opposite sex may perform the act.” Slip op. at 9.

Writing for the court Senior Judge King explains that even assuming the appellant’s argument about the meaning of sexual intercourse is accurate (and the NMCCA’s opinion functionally does so), the mere fact that it is part of an enumerated offense under Article 134 does not mean that other types of sexual activity are not equally punishable under similar circumstances and with similar consequences. This strikes me as the only sensible result. So too the CCA, it seems, as the opinion is unanimous.

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We noted the Air Force’s use of junior enlisted personnel as confidential informants in this post from 2013. Then, in this post from 2014, we noted this Daily Beast story about one such informant who alleged that she was sexually assaulted, but the allegation was suspected to be fraudulent.

A reader tipped me off to an opinion issued by the AFCCA on Thursday, in which it affirms that same informant’s pleas of guilty to numerous offenses, including “making 10 false official statements, all related to a false claim that she had been sexually assaulted.” United States v. Neubauer, No. S32308, slip op. at 1 (A.F. Ct. Crim. App. Mar. 10, 2016) (link to slip op.). The opinion provides details about the false claim. The appellant was sentenced to confinement for 4 months, forfeiture of $1,031 pay per month for 12 months, and a bad-conduct discharge. A pretrial agreement capped confinement at 84 days.