CAAFlog » Courts of Criminal Appeals » CCA Opinions

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

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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In a lengthy published opinion available here, the Air Force CCA affirms the death sentence adjudged in the case of United States v. Witt, No. 36785, __ M.J. __ (A.F.Ct.Crim.App. Jun. 30, 2014). The CCA’s action reverses the earlier decision (72 M.J. 727) (available here) (discussed here) of the court that set aside the death sentence after finding ineffective assistance of counsel by the trial defense team in that it did not effectively investigate and present various types of mitigation evidence.

The court previously split 3-2 on the question of prejudice. This time it splits 4-2, again on the question of prejudice. Senior Judge Marksteiner (who joined a partial dissent in the first decision, finding no prejudice) writes for the majority now, joined by Chief Judge Helget and Senior Judge Harney. Judge Mitchell concurs dubitante. Judge Saragosa (who wrote for the majority in the first decision) dissents in part, and is joined by Judge Peloquin who also writes a separate opinion dissenting in part.

But there is also dissent over the absence of minimum qualification requirements for counsel defending a military member facing the death penalty. Judge Mitchell’s dubitante opinion is about the lack of an express requirement for experienced capital defense counsel in a capital court-martial. Slip op. at 114. Judge Peloquin’s separate opinion addresses this issue as well. Slip op. at 136. Judge Peloquin explains:

In the instant case, the Government opted to detail two trial defense counsel to the appellant. When he was assigned to defend the appellant, the senior military defense counsel, Captain (Capt) DR, had been a member of the bar for two-and-a-half years, had prosecuted six cases of unknown complexity, and had served as a trial defense counsel for twelve months, defending nine cases. He had no capital trial experience and little training on the subject of capital trials60 prior to being detailed. The assisting military defense counsel, Capt DJ, had been a member of the bar for less than three years, had prosecuted 14–15 cases of unknown complexity, and had never served as a trial defense counsel prior to his assignment to the appellant’s defense team. He had no capital trial experience or training prior to being detailed.

The appellant, of his own accord, procured the services of a private attorney, Mr. FS. Mr. FS had been practicing law for 25 years with significant trial and appellate defense experience in courts-martial. However, he had no capital trial or capital appellate-level experience. As the lead counsel, he determined the division of labor among the defense legal team. . . .

None of the appellant’s attorneys met the minimum qualification standards required of capital defense counsel, specific bar admission aside, as adopted in 18 jurisdictions which account for over 80% of the capital cases in the United States. And lead counsel for the appellant’s sentencing case did not meet the minimum qualification standards in any of 24 jurisdictions with minimum qualification standards accounting for 94% of the capital cases in the United States. In fact, none of the appellant’s trial defense counsel met the minimum statutory qualifications governing counsel appointed to defend in federal capital cases.

To be fair, Capt DR, Capt DJ, and Mr. FS certainly appear to be capable, conscientious attorneys who worked diligently and tirelessly to defend their client. But in light of the import the overwhelming majority of capital jurisdictions accord to minimum standards for capital defense counsel, it strains credibility to conclude their judgment, efforts, and decisions were not handicapped by their own lack of training and experience.

Slip op. at 140 (Judge Peloquin dissenting) (citations omitted).

But on the issue that led the court to reverse the sentence the first time, Judge Marksteiner explains:

We conclude that although trial defense counsel were deficient in some areas, the appellant was not prejudiced by these deficiencies, and therefore under the second prong of Strickland we must resolve these issues against the appellant.

Slip op. at 38. The majority focuses on six aspects of the Defense sentence case:

(1) the scope of trial defense counsel’s investigation into, and failure to present evidence deriving from, a motorcycle accident the appellant was involved in four and a half months prior to the murders; (2) trial defense counsel’s failure to investigate and obtain records pertaining to the appellant’s mother’s treatment at an inpatient mental health facility; and (3) trial defense counsel’s failure to investigate and develop evidence of remorse through Deputy Sheriff LF. Then we will examine [4] whether counsel were ineffective in failing to offer evidence of the appellant’s future risk of violence, [5] failing to offer testimony of SP and KP, and [6] failing to object to inadmissible victim impact evidence.

Slip op. at 37-38.

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In a recently issued opinion in the case of United States v. Castillo, No. 201300280 (N-M.C.C.A. 27 May 2014) (slip op.), the NMCCA appears to reverse course on the self-reporting requirement it rejected in United States v. Serianne, 68 M.J. 580 (N-M.C.C.A. 2009). Serianne and its aftermath previously received extensive coverage on CAAFlog.

As a refresher, in Serianne a Navy Chief was charged with dereliction of duty for failing to report his civilian DUI arrest, in violation of the Navy’s then drug and alcohol abuse prevention order. After arraignment, the defense filed a motion to dismiss this charge and specification on the basis that it violated the accused’s Fifth Amendment right against self-incrimination. The military judge agreed and dismissed the charge. The government appealed the military judge’s dismissal pursuant to Article 62, UCMJ.

On appeal, the NMCCA affirmed the military judge’s dismissal of the charge because the order violated the accused’s Fifth Amendment rights by compelling an incriminatory testimonial communication. Additionally, the NMCCA noted that the order was inconsistent with superior authority, specifically Article 1137 of the Navy Regulations, which explicitly excepted Naval personnel from reporting their own involvement in criminal offenses. This single paragraph in the NMCCA opinion loomed large when the Government appealed to CAAF. In United States v. Serianne, 69 M.J. 8 (C.A.A.F. 2010), the CAAF declined to reach the constitutional issues and affirmed the NMCCA decision based on the conflict between the order and the Navy Regulations.

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In an unpublished opinion written by Judge Aldykiewicz in United States v. Hardin, No. 20120051 (A.Ct.Crim.App. Jun. 12, 2014) (link to slip op.), a three judge panel of the CCA reverses the appellant’s conviction for housebreaking, finding the evidence to be legally sufficient but factually insufficient.

The case involved an allegation of sexual assault. The appellant pleaded not guilty at a general court-martial composed of members with enlisted representation, and he was acquitted of the alleged violations of Article 120. However, he was convicted of housebreaking in connection with the following entry into a bedroom:

Sometime around 0500 hours, appellant entered the bedroom where he made physical contact with Mrs. EE. Mrs. EE testified that she felt someone touch her vagina; however, she initially thought it was her husband touching her and ignored it, thinking the touching would stop. Rather than stop, Mrs. EE felt her shorts being unbuttoned and pulled down. Realizing the person touching her was not her husband, she awoke her husband and told him someone was “touching her down there.” Sergeant JE awoke to find appellant on his hands and knees at the end of the bed. When confronted, appellant said nothing. Sergeant JE immediately escorted appellant out of the apartment after which law enforcement authorities were notified.

Slip op. at 3. This entry occurred after a night of drinking in the apartment during which the appellant consumed a large quantity of alcohol, estimated as “from as little as 10 drinks to over 30 drinks ranging from beer, ‘buttery nipples’ (Irish cream and butterscotch liquor), Jagermeister liquor mixed with Redbull energy drink, to Jell-O shots made with an estimated one ounce of vodka per shot.” Slip op. at 3 n.3. Further, “the unrebutted expert testimony in the case estimated appellant’s blood alcohol content (BAC) at 0500 hours in the range of .26 to .32.” Slip op. at 3 n.3. Additionally, in the hours before this encounter the appellant twice entered the bedroom with the consent of Mrs. EE (on one occasion to take advantage of her intoxicated husband who was passed out on the bed, writing on his face and taking pictures of him). Slip op. at 2. And “neither SGT JE nor Mrs. EE testified that they closed their bedroom door, let alone locked it prior to going to bed.” Slip op. at 2.

Housebreaking requires both an unlawful entry and a contemporaneous intent to commit a crime within. The opinion focuses on whether the entry into the bedroom in this case was unlawful, noting “that one may housebreak an interior room of a private residence during the same visit is without question.” Slip op. at 7. But the court reverses the housebreaking conviction on the basis that:

After having considered the following: the generally private nature of an apartment; that appellant was an invitee on 29–30 May 2011; that appellant twice entered the bedroom with Mrs. EE’s obvious consent, albeit not expressed verbally; appellant’s behavior during his second visit to the bedroom, behavior directed at an unconscious SGT JE; the unsecured nature of the bedroom; the absence of any express limitations on appellant’s movements throughout SGT JE’s and Mrs. EE’s apartment; appellant’s actions once inside the bedroom; and the Williams factors as applied to the facts and circumstances of appellant’s case, we find appellant’s conviction for housebreaking legally sufficient. However, we are ourselves not convinced, beyond a reasonable doubt, that appellant’s entry into the bedroom was “unlawful.” We therefore find appellant’s conviction for housebreaking factually insufficient.

Slip op. at 7.

Notably, one judge would go further and find that the “appellant’s heavily inebriated state from excessive alcohol consumption” causes an insufficiency in whether “appellant intended to commit a criminal offense when he made his 0500 hours entry into the bedroom.” Slip op. at 8 (Moran, J. concurring). Readers may recall the CCA’s opinion in United States v. Martin, No. 20110345 (A.Ct.Crim.App. Feb. 28, 2014), that I discussed in a post titled: The Army CCA rejects an appellant’s claim that he was too drunk to form the intent required to commit sexual offenses.

For the housebreaking conviction, the appellant was sentenced to reduction to E-1 (from E-5) and a bad-conduct discharge. The CCA’s decision results in dismissal of the case and reinstatement for the appellant.

In an en banc published opinion in United States v. Murphy, No. 20120556, 73 M.J. 699 (A.Ct.Crim.App. May 30, 2014) (link to slip op.), the Army CCA finds that 5.56mm ammunition is included in the definition of an explosive under Rule for Courts-Martial 103, affirming the appellant’s guilty pleas to larceny of and conspiracy to sell military property.

Judge Haight writes for the CCA. Judge Krauss dissents in part, vigorously disagreeing with the rest of the court on this point.

The majority observes:

Rule for Courts-Martial [hereinafter R.C.M.] 103(11) defines the term “explosive” as follows:

“Explosive” means gunpowders, powders used for blasting, all forms of high explosives, blasting materials, fuzes (other than electrical circuit breakers), detonators, and other detonating agents, smokeless powders, any explosive bomb, grenade, missile, or similar device, and any incendiary bomb or grenade, fire bomb, or similar device, and any other compound, mixture, or device which is an explosive within the meaning of 18 U.S.C. § 232(5) or 844(j).

Therefore, in accordance with a “plain meaning” interpretation of the above definition, ammunition which contains gunpowder or smokeless powder is unambiguously an explosive as those terms are expressly listed in the definition, with gunpowder as the very first example.

Slip op. at 3-4. But the analysis can’t stop there, as just last year:

In [United States v. Lewis, No. 20120797 (A.Ct.Crim.App. Feb. 27, 2013) (link to unpub. op)], a panel of this court determined “5.56 mm rounds of ammunition are not explosives for the purposes of Articles 108 and 121, UCMJ.” Lewis, 2013 WL 1960747, at *1. In its decision, that panel relied upon United States v. Graham, 691 F.3d 153 (2d Cir. 2012), vacated on other grounds, __ U.S. __, 133 S.Ct. 2851 (2013). In Graham, the United States Court of Appeals for the Second Circuit concluded a single 9 mm cartridge did not fall within 18 U.S.C. § 844(j)’s definition of an “explosive.” Graham, 691 F.3d at 161. As the definition of explosive in § 844(j) substantially mirrors that in R.C.M. 103(11), this conclusion appears persuasive. However, upon further review, general application of Graham to Articles 103, 108 and 121, and that ruling’s specific application to the facts of this case are inapposite.

Slip op. at 4. Notably, Judge Krauss wrote for the CCA in Lewis. But in Murphy Judge Haight distinguishes Graham on the basis that “the legal framework under the UCMJ, Title 10, is significantly different from that of the framework under Title 18, United States Code. . . . In other words, applying Graham to Articles 103, 108 and 121, UCMJ, is an exercise in the age-old comparison of apples to oranges.” Murphy, slip op. at 6.

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In United States v. Corral, No. 1373 (C.G.Ct.Crim.App. Feb 26, 2014) (link to unpub. op.), the Coast Guard CCA affirms the appellant’s conviction contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of one specification of wrongfully and knowingly attempting to receive child pornography, in violation of Article 134. The appellant was sentenced to reduction to E-1 and a bad-conduct discharge.

The Government attempted to “pre-admit” 53 images from the appellant’s computer. The military judge prevented their admission as “more unfairly prejudicial than probative.” Slip op. at 3. But there was other evidence about the images that was admitted through the testimony of a Coast Guard Investigative Service (CGIS) special agent, who testified as a lay witness:

Before the members, the special agent testified that he had examined a forensic image of the computer and found, among other things, a history of search terms that had been typed into a Google toolbar on the computer to search for images, which included search terms consistent with child pornography. (R. at 299-300.) This list of search terms was associated with the user profile “Brandon_Corral.” (R. at 315.) There was one other profile on the computer, “owner,” but it contained no significant activity. (R. at 316.)

There was also testimony from another witness that Appellant had orally confessed to viewing child pornography, as well as a written confession stating that he had viewed child pornography, with details. (Prosecution Ex. 3.)

Slip op. at 4. The CCA considers whether the military judge erred is allowing the witness to testify as a lay witness – in effect permitting improper opinion testimony. The agent testified during the pretrial hearing where the Government sought “pre-admission” of the images, and the Defense objected to certain questions on the basis that the agent “is not an expert.” Slip op. 2. The Defense contented “that only an expert would be able to do what he has been trained to do.” Slip op. at 3. The judge overruled the objection, at one point asking “Why does he have to be an expert?” Slip op. at 2-3.

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I’m certain that there will be plenty of discussion about United States v. Kish, 201100404 (N-MCCA 17 Jun 14) in the coming days. I don’t intend to give an exhaustive analysis of the case in this post, but merely to make one observation about what I believe was a missed opportunity in this opinion.

Without going through all the procedural posture of Kish, the main issue the N-MCCA was reviewing was whether the military judge had abandoned his impartial role in the case. See previous coverage here. Part and parcel of the appellant’s claim was the military judge’s PME to Marine student judge advocates at Parris Island. See previous coverage here.

In the Appendix to the opinion, the N-MCCA includes findings of fact and conclusions of law based on the Dubay hearing that CAAF ordered, and declines to find an actual basis on the part of the military judge (although they do find apparent bias and dismiss without prejudice in the main opinion). Among the findings of fact were statements that the military judge said during the PME including:

a. You must have a willing suspension of disbelief of the victims once the convening authority has decided to proceed with the charges.
b. The defendant is guilty. We wouldn’t be at this stage if he wasn’t guilty.
c. As trial counsel, it is your job to prove the defendant is guilty with the fullest veracity. Don’t hold back. Once convicted, we need to crush these Marines and get them out.
d. Defendants are scumbags.
e. If a trial counsel loses a child pornography case, that trial counsel will go to hell.

Slip op. at 15. There is also discussion of the military judge pointing to the defense table and saying that the accused is guilty if he’s sitting there, and that the Marine student judge advocates understood that to mean that this must be the mindset of a TC zealously representing the government. Slip op. at 16. There was also discussion of how the military judge told a story about his time as a trial counsel where the accused received a lesser sentence than he believed was warranted. The military judge stated words to the effect of “maybe I’ll just kill him when he get [sic] out [of confinement].” Read more »

Here is a link to United States v. Kish, No. 201100404 (N-M. Ct. Crim. App. Jun. 17, 2014).  And here is McClatchy’s coverage of it. Here and here is some of our prior extensive coverage.  H/t Anon

In a per curiam opinion in United States v. Sullivan, No. 201400071 (N-M.Ct.Crim.App. May 29, 2014) (link to unpub. op.), the Navy-Marine Corps CCA sets aside the appellant’s convictions of making a false official statement and larceny, entered in accordance with his pleas of guilty before a special court-martial composed of a military judge alone, finding that the case was improperly referred resulting in a jurisdictional defect.

While the case was submitted to the CCA for review without any assignment of error, the court “noticed a discrepancy between the referral block on the charge sheet and the convening order.” Slip op. at 2. “Specifically, the charges were referred by the Commander, 4th Marine Division, but the convening order contained in the record was signed by the commanding officer of Headquarters Battalion, 4th Marine Division - a subordinate unit.” Id. (emphasis added). Reviewing the facts, the court concludes that “the record reflects that the CA referred charges to a court-martial convened by a subordinate commander.” Slip op. at 3.

The CCA finds this to be an impermissible delegation of the authority to convene a court-martial and select the members:

Here, contrary to the Government’s assertion, there is no indication in the record that [the Division commander] intended to adopt those members detailed by [the subordinate's convening order] as his own. . . . A CA may adopt a court-martial convened by a predecessor in command. R.C.M. 601(b). But no authority allows a superior commander to adopt a panel convened by a subordinate even though the latter may possess the same authority to convene a court-martial.

There lies a substantial difference between adopting a convening order promulgated by a predecessor in one’s own office and delegating the power to convene a court-martial to a subordinate. The former is permissible; the latter is not. That is because the power to convene a court-martial is vested in an office, not a person.

Slip op. at 4. I think the CCA’s conclusion that “no authority allows a superior commander to adopt a panel convened by a subordinate,” slip op. at 4, is clearly wrong. A convening authority can adopt any panel he or she likes. All that matters is that there was an adoption (an act generally implied by the act of referring a case to that panel).

Notably, while the CCA references CAAF’s decision in United States v. Allgood, 41 M.J. 492 (C.A.A.F. 1995), the CCA does not mention its own published decision in United States v. Brewick where it echoed CAAF’s conclusion in Allgood that “the action in referring the charge to a court convened by another commander ‘did not have codal or jurisdictional significance.’” United States v. Brewick, 47 M.J. 730, 732 (N-M.Ct.Crim.App. 1997) (quoting Allgood, 41 M.J. at 495).

Further, while the CCA explicitly mentions that it is R.C.M. 601(b) that permits adoption of a predecessor’s convening order, it fails to acknowledge CAAF’s conclusion in Allgood that “even if RCM 601(b) was not applicable in this case, we would not reverse this conviction on the basis that this court-martial was improperly convened . . . [the convening authority], at the time of referral, clearly had authority under Article 22(a)(8) to convene a court-martial and refer a case to it.” 41 M.J. at 495.

In an unpublished opinion in United States v. Thomas, No. 0288 (C.G.Ct.Crim.App. Apr. 14, 2014) (link to slip op.) the Coast Guard CCA wrestles with a military judge’s ruling denying a defense motion for the production of a forensic psychologist to testify at trial. The military judge denied the motion via email, without a hearing, and rejected a defense request for oral argument. Further, the email was not attached to the record of trial. Nevertheless, the CCA affirms after concluding that the military judge correctly determined “that the expert witness was not necessary for this case.” Slip op. at 5.

The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of aggravated sexual assault, indecent acts, indecent language, and two specifications of communicating a nude photograph, in violation of Articles 120 and 134. The convening authority approved the adjudged sentence of confinement for 621 days, reduction to E-1, and a bad-conduct discharge.

The aggravated sexual assault conviction was based on an allegation that the appellant had sexual intercourse with Seaman M while she was substantially incapacitated after a night of drinking. The victim testified to a total lack of memory between drinking at a bar and waking up in her barracks room the next morning. “She described her condition during the interim as ‘blacked out.’” Slip op. at 5. “Seaman M never contended that she was unconscious throughout her ‘blackout’ period. She simply explained that she could not recall events that occurred during the blackout period. When asked at trial what she meant by the term ‘black out,’ she replied, ‘Just lost memory.’” Slip op. at 6. Notably, “the uncontroverted evidence presented to the members established that Seaman M was able to speak (though slurred) and ambulate (with assistance) during her self-described ‘blackout’ period.” Slip op. at 7.

The defense “received the pre-trial assistance of a Government-funded expert forensic psychologist, but no funding was provided for the expert’s presence at trial.” Slip op. at 2. Seventeen days before the start of the trial the defense moved to compel production of the expert as a trial witness. The Government opposed the request on its merits and as untimely. The military judge denied the motion without holding a hearing, despite a defense request to present argument; something the CCA finds to be “harmless.” Slip op. at 3 n.1. Rather, the judge merely conducted a conference under Rule for Courts-Martial 802.

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