CAAFlog » Courts of Criminal Appeals » CCA Opinions

In an unpublished opinion in United States v. Starovoytov, No. 38609 (A.F. Ct. Crim. App. Oct. 8, 2015) (link to slip op.), authored by Chief Judge Allred, a three-judge panel of the Air Force CCA accepts a “pretrial agreement provided no cap on the punishment Appellant could receive at his court-martial.” Slip op. at 3.

The appellant pleaded guilty to 5 charges (containing 18 specifications) “involving sodomy with children between the ages of 12 and 16, aggravated sexual abuse of children, abusive sexual contact of a child, indecent liberties with children, possessing and producing child pornography, and providing alcohol to persons under the age of 21, in violation of Articles 120, 125, and 134.” Slip op. at 1. He was sentenced to confinement for 50 years, reduction to E-1, total forfeitures, and a dishonorable discharge. The convening authority approved the adjudged sentence.

On review, the appellant asserted that he received a de minimus benefit from the pretrial agreement, warranting reduction of his sentence by the CCA. The appellant also asserted that “the pretrial agreement violated notions of fundamental fairness or public policy.” Slip op. at 4. The CCA rejects both contentions, with Chief Judge Allred explaining that the negotiated dismissal of two additional specifications (including a specification alleging sodomy with a child under twelve, for which the maximum authorized punishment includes confinement for life) was a benefit. Further:

The military judge properly ensured that Appellant understood the pretrial agreement and had freely and voluntarily entered into it. Appellant had no right to a pretrial agreement at all, nor to a sentence cap or any other promise by the convening authority. The decision whether to join Appellant in a pretrial agreement, or whether to agree to limit his punitive exposure, was within the sole discretion of the convening authority. Knowing the terms of the pretrial agreement and that there was no cap on his sentence, Appellant voluntarily elected to plead guilty.

Slip op. at 4. The CCA also rejects the appellant’s claim that his trial defense counsel were ineffective.

A footnote explains that the maximum authorized punishment for the offenses to which the appellant pleaded guilty was: “a dishonorable discharge, confinement for 290 years and 90 days, forfeiture of all pay and allowances, and reduction to E-1.” Slip op. at 4 n.6.

Last term, in United States v. Blouin, 74 M.J. 247 (C.A.A.F. 2015) (CAAFlog case page), a sharply-divided CAAF reversed an appellant’s pleas of guilty for the wrongful possession of child pornography consisting of three images depicting a young girl posing provocatively in undergarments (but no sexual activity or full nudity). Despite not showing full nudity or sexual activity, such images may still constitute child pornography (as defined by Title 18 and by the President under Article 134) if they involve a lascivious exhibition of the genitals or pubic area. Whether a particular image involves such an exhibition is subject to a six-factor analysis commonly known as the Dost factors, one of which is “whether the child is fully or partially clothed, or nude.” United States v. Roderick, 62 M.J. 425, 429-30 (C.A.A.F. 2006) (citing United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986), aff’d sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987)).

In Blouin (an Army case), the Army CCA affirmed the appellant’s guilty pleas by holding that nudity is not required for an image to constitute child pornography. To reach this decision, the CCA relied on a series of decisions originating in the Third Circuit that analyzed the Title 18 definition of child pornography: United States v. Knox, 977 F 2d. 815, (3d Cir. 1992), vacated and remanded, 510 U.S. 939 (1993) (Knox I);United States v. Knox, 32 F.3d at 736, (3d Cir. 1994) (Knox II).  Specifically, in Knox II the Third Circuit held that the “federal child pornography statute, on its face, contains no nudity or discernibility requirement, that non-nude visual depictions, such as the ones contained in this record, can qualify as lascivious exhibitions.” 32 F.3d at 737.

CAAF reversed in a 3-2 decision. In an opinion authored by now-Chief Judge Erdmann, the majority held that the plea inquiry conducted by the military judge was inadequate. The majority also rejected the CCA’s application of Knox. Yet while Knox was rejected, Chief Judge Erdmann’s opinion did not hinge on the absence of nudity in the images at issue. Rather, it hinged on a part of the Title 18 statute that requires that digital images must be graphic (meaning that the genitals or pubic area can be viewed) in addition to involving a lascivious exhibition, “because of the constitutional danger that the images might not be of actual children.” Blouin, slip op. at 8 (citing S. Rep. No. 108-2, at 6-7, 13). CAAF rejected the plea because this requirement was not adequately explained to the appellant.

Recently, the Army CCA revisited the issue of non-nude images in an unpublished decision in United States v. Cuccaro, No. 20130338 (A. Ct. Crim. App. Sep. 28, 2015) (link to slip op.). The appellant in Cuccaro was convicted of wrongful possession of child pornography (in violation of Title 18) for two images showing the 12-year-old sister of a fellow soldier. The images both appeared to have been taken by the girl herself, with one showing little more than a silhouette and the other a topless photo (in which she was wearing shorts). Considering these images, the CCA finds that:

EC’s genitals and pubic area are not exposed, nude, or discernible. Furthermore, we find contrary to the government’s assertion that EC’s “pubic area is in the image and discernible by her form fitting shorts.” Also, the focal point of this image is clearly not the girl’s shorts; rather, it is her exposed breasts.

Applying the applicable standards, we find neither image (b) nor (d) depicts a lascivious display of a minor’s genitalia and, therefore, neither image amounts to child pornography as defined by 18 U.S.C. §2256(8). See Dost, 636 F.Supp 828; Blouin, 74 M.J. 247; Roderick, 62 M.J. 425.

Slip op. at 9.

In a published decision in United States v. Stevens, __ M.J. __, No. 201400330 (N-M. Ct. Crim. App. Nov. 10, 2105) (link to slip op.), a three-judge panel of the NMCCA holds that “electronic media without corporeal form do not fall within the ambit of Article 121.” Slip op. at 4.

The appellant pleaded guilty to numerous specifications of larceny and attempted larceny based upon his use of other Marines’ credit card information to:

make online purchases of what the Government styled “electronic media.” The “media” included an audiobook and music downloaded to his iPhone, video games to his Sony PlayStation, and two “Boatloads of 2400 donuts” for use as virtual currency in a smart phone game based on the television show “The Simpsons.”

Slip op. at 2. The NMCCA reverses these pleas on the basis that Article 121 larceny requires property in corporeal form:

We find no further guidance in military case law on whether electronic media as alleged here can be the object of larceny under Article 121. But – saddled with a statute anchored to common law developed before electronic media even existed – we conclude that electronic media without corporeal form do not fall within the ambit of Article 121.

The property the appellant obtained using others’ money was intangible. The “donuts” in the Simpsons game – to pick the easiest example – could not be picked up, touched, or carried away because they were not real. They were conceptual, merely entitling the person who paid the fee for them to additional game play. When the appellant obtained them through fraud, these “donuts” existed and had value in the cyber world, but they had no corporeal existence in ours. Similarly, the music, audiobooks, and game software had no physical form, but instead represented the vendors’ willingness to allow the items to be downloaded – copied – for a fee.

Slip op. at 4.

The CCA’s conclusion that electronic media cannot be the object of an Article 121 larceny seems very sensible. However, I think the CCA’s focus on the intangible nature of the property is overly complicated (particularly since money may also be intangible but still the proper object of a larceny). I think a better (and simpler) view is that the appellant stole entertainment services, which is properly punished under Article 134 as obtaining services under false pretenses. See ¶ 78, MCM (“False pretenses, obtaining services under”). The false pretenses is the fraudulent use of the credit information (as a credential; similar to the misuse in United States v. Endsley, 73 M.J. 909 (A. Ct. Crim. App. Oct. 17, 2014) (discussed here), reversed, 74 M.J. __ (C.A.A.F. Jan 14, 2015) (discussed here)).

An analogous situation would be if the appellant had wrongfully used the credit information to obtain access to a book reading (in place of the audiobook), a musical performance (in place of the music download), and a video arcade (in place of the games).

In an unpublished decision in United States v. Maliwat, No. 38579 (A.F. Ct. Crim. App. Oct. 19, 2015) (link to slip op.), a panel of the the Air Force concludes that:

Congress and the courts have repeatedly said that the prior sexual misconduct of an accused is relevant to whether the accused committed the charged offenses. This includes the use of evidence of other charged sexual offenses to demonstrate propensity under Mil. R. Evid. 413.

Slip op. at 9 (citations omitted). In Maliwat, the charged sexual offenses involved two separate women, and the military judge instructed the members that if they found that a preponderance of the evidence supported the allegations then they could use that evidence as evidence the appellant’s propensity to commit sexual assault. The panel then convicted the appellant of the assault of one of the women, but acquitted him of the assault of the other.

The AFCCA joins two other CCAs in concluding that the charged sexual offenses may be used as evidence of propensity to commit the charged sexual offenses. The Army CCA reached that conclusion in United States v. Barnes, __ M.J. __, No. 20120308 (A. Ct. Crim. App. May 8, 2015) (discussed here), review denied, __ M.J. __ (C.A.A.F. July 28, 2015), and the NMCCA reached that conclusion in United States v. Bass, 74 M.J. 806 (N-M. Ct. Crim. App. Aug. 18, 2015) (discussed here).

A recent unpublished and per curiam decision by a three-judge panel of the Navy-Marine Corps CCA raises a serious concern: A military judge’s use of a prosecutors’ case tracking system.

On 9 October 2014, the appellant signed a PTA, agreeing to plead guilty to four specifications of possession and one specification of receipt of child pornography before a military judge. In return, the CA agreed to suspend any awarded confinement in excess of two years. While preparing for trial, the judge logged into Case Management System (CMS), the Navy’s online court-martial management database. Looking for confirmation of the appellant’s arraignment, the judge accessed a tab where court-martial milestone dates are recorded. While scanning that screen, the judge inadvertently stumbled upon a data entry he recognized as a PTA term capping confinement. The judge exited CMS and notified trial and defense counsel of the accidental disclosure via email.

United States v. Torres, No. 201500117, slip op. at 2 (N-M. Ct. Crim. App. Oct. 29, 2015) (link to slip op.) (emphases added). The appellant in Torres pleaded guilty to numerous offenses pursuant to a pretrial agreement, and then on appeal asserted that his trial defense counsel was ineffective for failing to thoroughly investigate the military judge’s actions or move for recusal. The CCA rejects the claim, finding neither deficient performance nor prejudice. But the opinion notes that:

the military judge invited voir dire from both counsel. TDC began his voir dire by apologizing that he had not seen the data entry at issue, because he did not have access to CMS. The record contains no indication that TDC requested access to CMS or a screen shot or printout of the entry. The judge recalled the CMS entry being five or six words announcing that parties had reached a PTA and the maximum sentence.

Slip op. at 2-3 (emphasis added).

Read more »

In United States v. Benjamin, No. 20130092 (A. Ct. Crim. App. Oct. 29, 2015) (link to slip op.), a three-judge panel of the Army CCA finds that the appellant – a retirement-eligible Chief Warrant Office 3 who was convicted of forcible rape and adultery, and sentenced to confinement for ten years and total forfeitures but not a dismissal – was prejudiced by his military defense counsel’s (apparent) failure to properly submit a post-trial request for resignation for the good of the service (RFGOS) that could have resulted in the appellant’s release from post-trial confinement.

The appellant “contends he was denied effective assistance of counsel during the post-trial portion of his case because his trial defense counsel failed to properly submit a request for resignation to the convening authority following his conviction.” Slip op. at 2.

The CCA grants relief without making an explicit finding deficient performance by counsel:

Without reaching the ultimate issue of ineffective assistance of counsel, we conclude post-trial error and a colorable showing of possible prejudice have been sufficiently established. As a result, we set aside the action of the convening authority to provide appellant the requested opportunity to submit a resignation request to the Secretary of the Army through the convening authority.

Slip op. at 2. Interestingly, the CCA’s opinion notes that the appellant’s defense counsel did request “that the ‘Convening Authority disapprove the findings and sentence adjudged at the general court martial . . . and instead grant CW3 Wendell Benjamin’s request for resignation, conditioned on the disapproval of the findings and sentence.’” Slip op. at 3 (quoting clemency request). However,

The clemency submission did not specifically reference either AR 600-8-24 or AR 635-200 nor was the request for resignation submitted on the form or format required by controlling regulations. The convening authority did not formally recommend approval or disapproval of the “resignation request” nor was anything forwarded to the Secretary of the Army.

Slip op. at 3. The CCA concludes its decision by explaining that it “solely address[es] the appellant’s right to formally and properly submit a post-trial RFGOS request through the convening authority to the Secretary of the Army.” Slip op. at 6.

In a Government interlocutory appeal in United States v. Henning, No. 20150410 (A. Ct. Crim. App. Sep. 3, 2015) (link to slip op.), a three-judge panel of the Army CCA reverses a military judge’s ruling that suppressed DNA evidence in a sexual assault case. Specifically:

The alleged victim, SLN, reported that appellee raped her. [The appellee] denied any and all sexual contact with SLN. Genetic material was recovered from the underwear SLN wore the evening in question. The Kansas City Police Crime Laboratory (KCPCL) conducted deoxyribonucleic acid (DNA) testing on that genetic material. After testing and analysis, the KCPCL reported that [the appellee] could not be excluded as a potential minor contributor to the tested sample. Furthermore, the KCPCL is of the opinion that approximately 1 in 220 unrelated individuals in the general population would be a match to the minor contributor’s profile. [The appellee] was charged with the rape of, and other sexual crimes against, SLN.

Slip op. at 1-2. Additional notable facts include that the genetic material tested was “an exceedingly small quantity,” slip op. at 5, and that “according to KCPCL, the two other males present in SLN’s home on the night in question were both excluded after comparison to the DNA profile.” Slip op. at 2 n.3.

The defense moved to suppress any evidence about the DNA analysis on the basis that it “does not meet the requirements for expert testimony established by Military Rule of Evidence 702.” Slip op. at 2 (marks omitted). The military judge granted the motion, concluding in part that the formula that the laboratory used to draw conclusions about the DNA was not reliable, that the ensuing battle of the experts would create a trial-within-a-trial, and that:

9. “Using the 1 in 220 statistic, in a population as small as Weston, Missouri [the location of the alleged assault –ZDS] (1,641 in the 2010 census (citation omitted)), only 7 people could be contributors to the genetic material in Mrs. [SLN]’s underwear.”

10. Because the “Government is sure to point out that of those seven possible people, only one was in Mrs. [SLN]’s house, . . . the probative value is substantially outweighed by the danger of unfair prejudice, misleading the panel members, and waste of time.”

Slip op. at 6 (quoting military judge’s ruling) (all marks other than my notation are in original).

The Government appealed and the CCA reverses by concluding that some of the judge’s findings of fact (regarding the procedure used by the laboratory) were clearly erroneous and also that his conclusions of law were erroneous.
The CCA’s opinion might reach the right result, however it will likely have unintended consequences that will fuel some (unfair) criticisms of the military justice system.

Read more »

In a published opinion in United States v. Catano, No. 2015-04, __ M.J. __ (A.F. Ct. Crim. App. Oct. 14, 2015) (link to slip op.), a three-judge panel of the Air Force CCA denies a Government appeal of a military judge’s ruling that suppressed the accused’s statements to his first sergeant, additional statements made at a hospital, and the results of a probable cause urinalysis, because of the provisions of Air Force Instruction 44-121 that provide protections for an Airman who “voluntarily disclose[s] evidence of personal drug use or possession to the unit commander, first sergeant, substance use/misuse evaluator, or a military medical professional.” The accused in Catano made statement that included the admission: “I’m addicted to heroin.” Slip op. at 7.

The CCA finds that the military judge did not abuse her discretion in suppressing the evidence based upon the protections of AFI 44-121. Notably, the CCA’s decision includes consideration of the fact that after the military judge issued her initial ruling and the prosecution gave notice of its intent to appeal, the military judge:

issued a 6-page supplemental ruling that incorporated the entirety of her original ruling and added several findings of fact and conclusions of law. Her ultimate conclusion was unchanged.

Slip op. at 2. The Government asked the CCA to strike the supplemental ruling, asserting that “the automatic stay provision related to government appeals divested the military judge of jurisdiction over the court-martial once the notice of appeal was filed.” Slip op. at 2. But the CCA denied the motion and in its opinion it finds that a “military trial judge may sua sponte reconsider a ruling or order after notice of an Article 62, UCMJ, appeal and before the record of proceedings is authenticated.” Slip op. at 5.

Notably, in reaching this conclusion, the CCA describes the Government’s position in very harsh terms:

The Government expresses concern that the military judge amended her initial ruling in an effort “to strengthen her ruling with additional facts and analysis so that she would not be overturned.” Whether the changes found in the supplemental ruling favor the Government or Appellee is not the measure by which we determine the authority of the military judge to reconsider a prior ruling. We doubt the Government would object if the military judge had reconsidered her ruling and ruled in favor of the Government.

Slip op. at 6 (emphasis added).

In United States v. Riggins, No. 15-0334/MC (CAAFlog case page), CAAF is considering whether the offense of assault consummated by a battery in violation of Article 128 is a lesser included offense of the offenses of sexual assault in violation of Article 120(b) (2012) and abusive sexual contact in violation of Article 120(d) (2012).

Such a conviction was at issue in United States v. Bridenstine, No. 201500041 (N-M. Ct. Crim. App. Oct. 29, 2015) (link to slip op.), as the appellant was convicted contrary to his pleas of not guilty of assault consummated by a battery as a lesser included offense of sexual assault of a person who was incapable of consenting due to impairment by a drug, intoxicant, or similar substance. The general court-martial – composed of members with enlisted representation – sentenced the appellant to confinement for six months, reduction to E-1, forfeiture of $765.00 pay per month for 6 months, and a bad-conduct discharge (six months is the maximum authorized confinement for the offense).

But a three-judge panel of the NMCCA finds the evidence factually insufficient to support the conviction, and reverses the conviction. The facts of the case are somewhat bizarre, but the panel’s conclusion is straightforward:

Although there was evidence SR CW was intoxicated, we find no compelling evidence that she was so drunk as to prevent her from expressing her lack of consent to the touching (here, the sexual activity with the appellant). Every Government witness who saw her drinking that evening (Cpl DR, Capt BP, and Capt CM) testified that SR CW was neither slurring her words nor stumbling, that she was engaging in conversation, and that they had no concerns about her ability to understand what was going on around her. Upon leaving the last bar it appears she walked, on her own, some significant distance “to the other side of town.” Sgt BB, another Government witness, testified that SR CW was happy, talking, laughing, not slurring her words, and that she had her arm around Cpl MA in an affectionate manner. Thus, the evidence indicates that her presence in the hotel room with the appellant and Cpl MA was both knowing and voluntary. SR CW’s testimony also indicates she was sufficiently alert to be fully aware of her exact location in the room and that during  the sexual activity she was supporting her own weight while balancing in a difficult body position. Further, SR CW states that during the sexual encounter she was awake, the lights were on, and although she testified the appellant was “making” her perform oral sex, no evidence was presented that she demonstrated to the appellant or Cpl MA, in any manner, at any time, that she did not consent to any part of the encounter. Moreover, no evidence was presented to indicate SR CW was, through any means, prevented from manifesting her lack of consent or objection to the situation. To the contrary, we note SR CW spent the remainder of the night with Cpl MA, one of her alleged attackers, sleeping with her head on his chest.

Recognizing the high burden the Government carries in a criminal prosecution, and after considering all the evidence and pleadings in this case, we find the Government did not demonstrate the complainant’s lack of consent to the touching beyond a reasonable doubt and therefore failed to prove the offense’s second element beyond a reasonable doubt.

Slip op. at 7-8.

One of the cases debated in the opposing views on civilianizing military justice is the recent unpublished decision of the Army CCA in United States v. Garcia, No. 20130660 (A. Ct. Crim. App. Aug. 18, 2015) (link to slip op.).

The appellant in Garcia – an Army staff sergeant – was accused of raping and forcibly sodomizing another staff sergeant, maltreating a third staff sergeant and two sergeants, and sexually harassing a chief warrant officer. The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of the rape and forcible sodomy of the staff sergeant and of the maltreatment of another staff sergeant and a sergeant (three victims in total), and was sentenced to confinement for five years, reduction to E-1, and a dishonorable discharge.

The Army CCA reversed the appellant’s convictions of rape and forcible sodomy (involving only one victim). Professor Joyner and LtCol Weirick asserted – in the opening sentence of their argument in favor of removing serious crimes from the military justice system – that the CCA’s decision “overturned a rape conviction on the grounds of unlawful command influence.”

But I disagree. The Army CCA’s decision isn’t about command influence. Rather, it’s about improper argument by a prosecutor.

Read more »

Back in July, a three-judge panel of the Navy-Marine Corps Court of Criminal Appeals issued a per curiam opinion that reversed convictions of rape and forcible sodomy because the panel found the evidence presented at trial to be factually insufficient. United States v. Clark, No. 201400232 (N-M. Ct. Crim. App. Jul. 14, 2015) (link to slip op.).

The convictions were based on allegations that the appellant used force to engage in vaginal and oral intercourse with a female victim who had very little memory of the encounter due to her state of intoxication at the time of the encounter. The only direct evidence against the appellant was (best I can tell) the woman’s testimony, consisting of “four segmented memories of what occurred with the appellant that night.” Slip op. at 4. Nevertheless, the appellant was convicted by a general court-martial composed of a military judge alone and sentenced to confinement for seven years, reduction to E-1, and a dishonorable discharge.

Considering the relatively little evidence presented at trial, and employing its unique factual sufficiency powers, the NMCCA found the evidence insufficient to sustain the convictions:

We are unconvinced by the record before us that the Government met their heavy burden of proving the required element of force for either offense. While SW’s description of appellant holding her by her arms provided some evidence of force, she could not link this action by the appellant to any further act, sexual or otherwise, and the disorganized, potentially non-sequential order of her memories prevents us from concluding that the charged forcible sexual acts necessarily followed.

Slip op. at 13. As a result, the CCA dismissed the charges with prejudice.

However, the appellant was not immediately released from confinement. Nor was he entitled to immediate release (discussed in depth below). Nevertheless, the appellant sought a writ of habeas corpus from the NMCCA ordering his immediate release. The CCA denied that writ in an en banc decision available here.  The appellant has since appealed that denial to CAAF, where I expect it will also be denied.

This isn’t to say that the appellant is not entitled to be released. Rather, he just has to wait a little bit longer.

Read more »

Two years ago, in United States v. Solomon, 72 M.J. 176 (C.A.A.F. 2013) (CAAFlog case page), CAAF held that a military judge erred in admitting prior allegations of sexual misconduct by an accused (as propensity evidence under Military Rule of Evidence 413) when the accused was acquitted of the prior allegations in a prior court-martial, because the judge “failed to mention or reconcile Appellant’s important alibi evidence [involving the prior allegations] and gave little or no weight to the fact of the prior acquittal.” 72 M.J. at 180.

Last month, in a published opinion in United States v. Bridges, __ M.J. __, No. 20120714 (A. Ct. Crim. App. Jul. 27, 2015) (link to slip op.), a three-judge panel of the Army CCA grapples with similar circumstances in that:

the United States relied in merits and sentencing, in part, upon a fifteen year old allegation of rape against appellant that had been subject to trial and resulted in acquittal.

Slip op. at 2.

The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of wrongful sexual contact, forcible sodomy, and assault consummated by a battery in violation of Articles 120, 125, and 128. He was sentenced to confinement for 6 years, total forfeitures, reduction to E-1, and a dishonorable discharge.

Read more »

In United States v. Salyer, 72 M.J. 415 (C.A.A.F. 2013) (CAAFlog case page), CAAF reversed a child pornography conviction, and dismissed the charge with prejudice, after finding the uncured appearance of unlawful command influence in the trial counsel’s access and use of a military judge’s personnel record to seek the judge’s recusal, and in a supervising counsel’s ex parte communication with the judge’s supervisor to complain about the judge’s rulings. The case was our #4 Military Justice Story of 2013.

In a recent decision in United States v. Hutchinson, No. 38503 (A.F. Ct. Crim. App. Jun. 29, 2015) (link to slip op.), the AFCCA addresses a somewhat similar set of facts. Raising concerns about speedy trial issues, the trial counsel (prosecutor) repeatedly asked the military judge to hold a session of court to address any speedy trial concerns. The judge repeatedly denied the Government’s request to go on the record. Then:

the chief regional military judge (CRMJ) for the central region (who was also the military judge’s supervisor and rater) called the military judge. According to the testimony of the military judge, his supervisor informed him that he had received a call from the staff judge advocate (SJA) to the special court-martial convening authority for this case. The CRMJ indicated the SJA said the military judge was being recalcitrant, and the CRMJ asked the military judge for information on the situation. Having just received two electronic requests for an Article 39(a), UCMJ, session from trial counsel, the military judge understood exactly what his supervisor was referring to, and he then explained the chronology of the case to the CRMJ. He felt the need to do this because his judicial temperament had been questioned to his supervisor. . . .

As he considered the matter after the call, however, the military judge became annoyed and unhappy. His impression was that the SJA was unhappy with his decision to not hold an Article 39(a), UCMJ, session and considered it important enough to call the military judge’s supervisor to complain about his performance and professionalism in a pending matter in an ongoing court-martial and to make the government’s strong desires known, all in an apparent attempt to influence the proceedings. This action by the SJA caused the military judge to “think twice” about his actions in denying the government’s prior requests.

A few hours later, the military judge received a motion from the government, asking again that he convene an Article 39(a), UCMJ, session. This time, the military judge granted the government’s request. . . .

Slip op. at 5-6. The military judge did not recuse himself but a different judge was detailed to the case because the original judge was transferring. The appellant ultimately pleaded guilty to conspiracy, wrongful sale of military property, larceny, and disorderly conduct, in violation of Articles 81, 108, 121, and 134, and was sentenced to confinement for 38 months and reduction to E-1. Pursuant to a pretrial agreement, the convening authority reduced the confinement to 19 months. Then, on appeal, the appellant asserted the existence of an appearance of unlawful command influence in the ex parte communications with the judge.

Writing for a three judge panel of the AFCCA, Senior Judge Hecker makes three conclusions: (1) that the issue of UCI was not (and could not be) waived by the appellant’s guilty pleas and pretrial agreement; (2) that the appellant has made a colorable showing of the appearance of unlawful command influence; (3) that the appearance is harmless beyond a reasonable doubt.

Read more »

In a published opinion in United States v. Rivaschivas, __ M.J. __, No. 20140471 (A. Ct. Crim. App. Jul. 24, 2015) (link to slip op.), a three-judge panel of the Army CCA finds that the appellant’s desertion of the Army in 2007 occurred during a time of war, meaning that the normal five-year statute of limitations does not apply.

Writing for the panel Judge Haight explains that:

Like the Court of Military Appeals in 1953, we rely on “[a] reading of the daily newspaper accounts of the conflict in [Iraq and Afghanistan]; an appreciation of the size of the forces involved; a recognition of the efforts, both military and civilian, being expended to maintain the military operations in that area; and knowledge of other well-publicized wartime activities” to convince us “beyond any reasonable doubt that we [were] in a highly developed state of war” in 2007. Bancroft, 3 U.S.C.M.A at 5-6, 11 C.M.R. at 5-6. Furthermore, we note historical facts such as the Iraq War troop surge of 2007, the continuous and multiple large-scale deployments to both Iraq and Afghanistan of combat units going back to 2003, the well-documented number of combat fatalities and injuries in that theater of operations during those campaigns, the tremendous financial cost of our ongoing military conflicts in the Middle East, the various legislative enactments and executive orders detailing our wartime footing in Iraq and Afghanistan, the creation of military commissions with the purpose of prosecuting violations of the law of war, and judicial decisions such as Hamdi v. Rumsfeld, 542 U.S. 507 (2004). The above is a non-exhaustive list which compels us to hold that appellant deserted the U.S. Army in a time of war for purposes of the statute of limitations under Article 43, UCMJ.

Slip op. at 5-6. The appellant deserted the Army in 2007 and remained absent until 2014. He was charged with desertion for this entire period, but pleaded guilty to only desertion until 2008. The Government did not attempt to prove desertion from 2008 to 2014, and the appellant was convicted of only desertion from 2007 to 2008.

The appellant did not affirmatively waive the five-year statute of limitations at trial, and then he asserted the statute of limitations on appeal as a basis to reverse his guilty plea. But because the CCA finds that “no time limitation applied to appellant’s war-time desertion, there was no bar to trial to waive, and consequently no inquiry [by the military judge] regarding the statute of limitations was necessary.” Slip op. at 6.

In an en banc opinion issued on Friday, the NMCCA finds ineffective assistance of counsel in the failure of a two-attorney defense team to move for suppression of the appellant’s statements to a Marine who questioned the appellant about his consumption of alcohol during a training event in violation of a battalion order. Judge King writes for the majority and explains that:

To be clear, we do not conclude that [the questioner] necessarily had a duty to warn the appellant of his rights under Article 31(b), nor do we hold as a matter of law that the appellant would have been successful had the motion been litigated. Instead, we find that a motion to suppress this case-dispositive evidence had a reasonable probability of success and therefore [trial defense counsels’] failure to litigate the issue is sufficient to undermine our confidence in the outcome of this court-martial.

United States v. Spurling, No. 201400124, slip op. at 12 (N-M. Ct. Crim. App. July 31, 2015) (link to slip op.) (marks omitted).

The appellant – a junior enlisted Marine – was charged with disobeying an order (to not drink alcohol during the training) and making a false official statement (for claiming that he had permission to drink alcohol when he was questioned). A special court-martial composed of members with enlisted representation acquitted the appellant of the orders violation, convicted him of making a false official statement, and sentenced him to reduction to E-1 and a bad-conduct discharge. The convening authority then suspended the bad-conduct discharge.

This is the NMCCA’s second en banc opinion in the case. In the first opinion (discussed in this post), a majority of the CCA found deficient performance by the defense but no prejudice, concluding that a motion to suppress would not have succeeded because the questioner was not acting in an official law enforcement or disciplinary capacity. However, in an action discussed here, CAAF summarily reversed and remanded for consideration in light of its decision in United States v. Jones, 73 M.J. 357 (C.A.A.F. Jul. 21, 2014) (CAAFlog case page). CAAF also took issue with the standard that the NMCCA applied to determine the merit of any motion to suppress.

On remand, the NMCCA again finds deficient performance in the failure of defense counsel to move for suppression (noting, as it did in the first opinion, that “TDC concede that they failed to recognize the issue”). Slip op. at 6-7. But the court reaches a different result regarding the merit of a motion to suppress, focusing its analysis on the second textual predicate of Article 31(b): that rights warnings are only required when a questioner “interrogates or requests any statement.” United States v. Jones, 73 M.J. 357, 361 (C.A.A.F. Jul. 21, 2014) (CAAFlog case page).

Read more »