CAAFlog » Courts of Criminal Appeals » CCA Opinions

In an unpublished en banc opinion in United States v. Soto, No. 38422 (A.F. Ct. Crim. App. Sep. 16, 2014) (link to unpub. op.), the Air Force Court of Criminal Appeals reverses a conviction for forcible rape in violation of Article 120(a) (2006), finding that the Government failed to satisfy its burden to demonstrate that the appellant used physical force to cause the sexual intercourse.

The appellant was a military training instructor at Joint Base San Antonio-Lackland, Texas. A general order prohibited “developing or attempting to develop a personal, intimate, or sexual relationship with a trainee, including former basic trainees who remained in follow-on technical training school” and also prohibited “such relationships with a trainee’s immediate family member.” Slip op. at 2. The appellant engaged in numerous such relationships, leading to pleas of guilty before a general court-martial composed of a military judge alone to two specifications of violating a lawful general regulation, one specification of making a false official statement, and two specifications of adultery, in violation of Articles 92, 107 and 134.

However, the appellant was also charged with rape, aggravated sexual assault, and wrongful sexual contact involving his sexual encounters with one particular former trainee. He pleaded not guilty to these charges. The military judge acquitted the appellant of the aggravated sexual assault and wrongful sexual contact charges, but convicted him of the rape.

The rape charge involved a former trainee identified as Senior Airman (SrA) TS, who contacted the appellant after completing her basic training and flew from California to San Antonio in order to visit him. She planned to stay at the appellant’s apartment during the visit.

The incident that led to the rape specification took place soon after SrA TS arrived in San Antonio. She stated the appellant met her at the airport and as she entered his car, he promptly pushed her into her seat and kissed her. She stated she attempted to distract him by stating she wanted to go out to eat, but the appellant insisted they stop by his apartment to drop off her luggage. SrA TS stated she used the restroom in his apartment, and when she emerged from the restroom, the appellant hugged her, kissed her, took her to the bed, pulled down her shorts, and had sexual intercourse with her. SrA TS stated this was against her will; she pushed him and told him, “No, I’m not ready,” to no avail.

At trial and on appeal, the parties focused much of their attention on SrA TS’s actions following this charged rape. SrA TS continued to stay at the appellant’s apartment and slept in his bed for her five-day stay in San Antonio. When she returned to California, she continued to communicate with the appellant and sent him explicit pictures of herself. She also communicated with a friend from basic training that she was dating the appellant, that he was her boyfriend, and that the relationship was a “dream come true.” Although she considered herself in a relationship with the appellant, SrA TS also remained in an “on again, off again” relationship with her boyfriend in California during this time; however, the relationship was strained.

Over the next several months, SrA TS visited the appellant twice more, both times bringing family members to view houses for the family’s possible move to San Antonio. Some consensual sexual activity took place between SrA TS and the appellant during SrA TS’s visits to San Antonio, and she stayed with the appellant during each visit. During the last visit, SrA TS stated that she woke up after consuming alcohol to find herself unclothed in the appellant’s apartment smelling like she had sex. However, SrA TS could not state positively whether intercourse occurred, and she testified that she did not feel like she had sex. The appellant was acquitted of aggravated sexual assault and wrongful sexual contact resulting from this incident. Soon after this last visit, SrA TS and the appellant stopped communicating, and SrA TS married her boyfriend in California.

Slip op. at 3. The CCA considers these facts and the evidence presented at trial and concludes that the evidence is factually insufficient to support the rape conviction “on narrower grounds than the parties’ focus in their initial briefs, focusing solely on the evidence introduced about the charged rape itself.” Slip op. at 4. Writing for the court, Judge Weber avoids the appellant’s assertion “that SrA TS’s actions following the charged incident undermine her credibility and demonstrate her consent to sexual activity with the appellant,” focusing instead on the legal definition of force and the evidence presented on that element. Slip op. at 4.

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In United States v. Kish, No. 201100404 (N-M. Ct. Crim. App. Jun. 17, 2014) (Kish III) (link to unpub. op.) (discussed here), the NMCCA reversed the convictions (for orders violations) of a Marine Corps recruiter (who engaged in various forms of recruiter misconduct) after determining that “the military judge’s conduct warrants a remedy to vindicate the public’s confidence in the military justice system.” Kish III, slip op. at 8. That conduct included “needlessly interject[ing] himself into the examination of witnesses and engag[ing] in lengthy and largely irrelevant questioning.” Kish III, slip op. at 3. It also involved post-trial conduct by the judge, Lieutenant Colonel Robert G. Palmer, who:

Two weeks after the sentence rehearing, on 21 June 2012, the military judge presented a Professional Military Education (PME) lecture to five “summer funners,” Marine law school students on active duty for the summer. In his two-hour lecture, the military judge spoke at length about the responsibilities of trial counsel and for a shorter period of time about defense counsel duties. Two of the officers who attended the PME were troubled by some of his comments, and drafted statements summarizing those particular comments.

Kish III, slip op. at 4. The fallout from the judge’s PME lecture was part of our #8 story in the Top Ten Military Justice Stories of 2012, and it led to appellate litigation in a parade of cases. Last September, CAAF remanded eleven cases to the NMCCA for further consideration of this issue (remands discussed here).

The CCA decided the first of those eleven cases yesterday. In a per curiam opinion in United States v. Bailey, No. 201200370 (N-M. Ct. Crim. App. Sep. 16, 2014) (link to unpub. op.), a three-judge panel of the court reviews an assertion that the appellant “was deprived of his constitutional right to an impartial judge.” Slip op. at 2. Like the appellant in Kish, the appellant in Bailey was a recruiter who engaged in various forms of misconduct. But unlike the appellant in Kish (who pleaded not guilty and was convicted after a contested trial with members, into which the judge injected himself), the appellant in Bailey pleaded guilty before the military judge sitting alone as a special court-martial.

Finding no error deserving of relief in Bailey, the CCA panel (including one of the appellate judges from the panel that considered Kish III) notes:

The appellant has cited no examples at his court-martial where the military judge acted improperly or in any way demonstrated a lack of impartiality. A thorough reading of the record reveals none. To the contrary, the military judge was particularly careful to avoid hearing or seeing any inadmissible evidence offered by the Government.5Unlike inKish, the military judge did nothing at trial to bring his impartiality into question. Thus, in this case, the effect of the PME comments is not compounded with anything at trial to reach the level of undermining public confidence in the judicial system’s integrity.

Bailey, slip op. at 5-6.

But in Bailey the CCA appears to soften its characterization of the PME discussed in Kish III. Writing for the CCA in Kish III, Chief Judge Modzelewski explained:

A reasonable person who observed or had knowledge of the trial judge’s conduct in Kish I and the comments he made during his PME lecture would have a serious question as to the fairness and impartiality of the court-martial. Said another way, such a person would have viewed the entire Kish trial quite differently in light of the military judge’s PME lecture. That observer may well have concluded that, by hijacking the direct examination of AS, the military judge was telegraphing a message that the trial counsel was not aggressive enough and was not overwhelming the members with an avalanche of evidence, as he exhorted the Marine law students to do. It would thus appear that the military judge became a second prosecutor to show trial counsel “how it should be done.”

Kish III, slip op. at 7 (emphasis added). But in the per curiam opinion in Bailey, the CCA explains:

An examination of the entire circumstances surrounding the PME lecture, however, places the statements properly in context. We are satisfied that any reasonable person knowing all the circumstances of the lecture, as well as the manner in which the military judge conducted the proceedings in this case, would not question the integrity of the judicial system. Unlike in Kish, there is no “nexus between the military judge’s conduct during [Kish’s] trial and his later comments” at the PME lecture. Kish, 2014 CCA LEXIS 358 at *13. Rather, the contrast between the military judge’s comments and his performance during the court-martial tends to underscore this court’s conclusion that he was speaking during the lecture in character, and not in his own voice. Accordingly, we find no apparent bias.

Bailey, slip op. at 6-7 (emphasis added).

In an unpublished opinion in United States v. Torres, No. 201300396 (N-M. Ct. Crim. App. Aug. 28, 2014) (link to unpub. op.), a three-judge panel of the NMCCA rejects an equal protection claim, an as-applied vagueness claim, and an assertion that the military judge erred in using “knowledge of human nature and the ways of the world” in assessing the evidence in a judge-alone trial. Slip op. at 8.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of sexual assault and adultery in violation of Articles 120 and 134. He was sentenced to confinement for two years, reduction to E-1, and a dishonorable discharge. The convictions stemmed from Appellant’s sexual encounter with the heavily-intoxicated wife of another Marine during a house party. The woman – identified as “AM” – fell asleep in a bathroom. Then:

The next thing AM remembered was waking up in the spare bedroom on the air mattress. She had no memory how she got there and was disoriented and in discomfort; she then realized that someone was having sexual intercourse with her. As she started to wake up, she realized that she was wearing only a bikini top. The tank top, shorts, and underwear that she had worn while asleep in the bathroom had been removed.2 By the time she regained her senses, AM saw the appellant, naked, lying next to her. She rolled off the air mattress, grabbed some clothes that were on top of her red suitcase, and went to look for her husband.

Slip op. at 4. AM tried to awaken her husband, who had fallen asleep on a patio table, but he fell to the floor and started bleeding. AM then called 911 and reported her husband’s injuries and that she had been raped.

Appellant was convicted of sexual assault in violation of Article 120(b)(3)(A) (2012): committing a sexual act upon a person who is incapable of consenting due to impairment by an intoxicant. At trial Appellant did not contest that he had a sexual encounter with AM, but asserted that it was consensual and that AM was capable on consenting. Slip op. at 6. On appeal he asserted that the prosecution deprived him of equal protection because he had “higher symptoms of impairment [than AM],” slip op. at 11, that the term “[i]ncapable of consenting to the sexual act due to impairment by alcohol” is unconstitutionally vague, slip op. at 13, and that the military judge improperly used his own “human experience” in place of the evidence presented at trial, slip op. at 9. The CCA rejects all three errors.

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Back in April, in this post, I discussed the NMCCA’s decision in United States v. Loiacono, No. 201200451 (N-M. Ct. Crim. App. Mar. 25, 2014), rev. denied, __ M.J. __ (C.A.A.F. Jul. 29, 2014), in which the CCA rejected the appellant’s claim  of judicial bias arising from improper questioning of a witness by the judge that led to improper testimony from the witness (requiring what the CCA called a “strong curative instruction,” slip op. at 31).

Now, in United States v. Williams, No. 20130284 (A. Ct. Crim. App. Aug. 28, 2014) (link to slip op.), a three-judge panel of the Army CCA finds plain error in a military judge’s questions to a sentencing witness. The Government repeatedly tried to elicit testimony from the witness about the effect of the appellant’s offenses on the unit. But that testimony was focused on the administrative after-effects, with observations such as:

CPT JF: Okay. Well besides the soldiers being upset that he wasn’t receiving a punishment and they had, there was even threatening against him, especially when the barracks incidents happened; that they wanted to take into his [sic] own hands because they felt justice wasn’t being served to him fast enough. When it came to — our unit was extremely busy with a lot of missions at the time. When it came — I had to bring NCOs out to escort him around to make —-

Slip op. at 9-10. The problem with this testimony is that a service member’s invocation of the right to refuse administrative punishment and require that the Government conduct a court-martial, and any associated delay, is not a matter in aggravation. Neither is the fact that others the his unit contemplated vigilantism. The Defense repeatedly objected to the questions, and the judge sustained the objections. But then the judge questioned the witness:

MJ: [CPT JF], you talked about the impact on the unit about the other soldiers observing what they felt was the slow pace of justice and wanting to take matters into their own hands. What do you base that observation on?

CPT JF: Yes, sir. I mean, rumors and hearsay had gotten to me that they were threatening beating him down.

MJ: And how was that transmitted to you?

CPT JF: Through NCO channels, like, “Hey, sir. These soldiers want to beat him up.”

Slip op. at 10. The Defense did not object to the judge’s questions.

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Military Rule of Evidence 304(c) (2013) (formerly M.R.E. 304(g)) states the corroboration rule, beginning with this paragraph:

An admission or a confession of the accused may be considered as evidence against the accused on the question of guilt or innocence only if independent evidence, either direct or circumstantial, has been admitted into evidence that corroborates the essential facts admitted to justify sufficiently an inference of their truth.

M.R.E. 304(c)(1). An excellent article by Colonel J. Wesley Moore, USAF, The Corroboration Quandary: A Historical Overview of the Interpretation of MRE 304(g), 63 A.F. L. Rev. 89 (2011) (available here), provides a comprehensive analysis of this rule. And CAAF had two good occasions during the past term to weigh in on this subject, first in United States v. McPherson, 73 M.J. 393 (C.A.A.F. 2014) (CAAFlog case page), where the court rejected the defense efforts to obtain review of the AFCCA’s back-to-the-future theory of corroboration (discussed here and here), and second in United States v. McIntyre, No. 14-6005/AF, where the court summarily rejected an Air Force certification of the AFCCA’s rejection of a Government interlocutory appeal of a military judge’s ruling that suppressed a confession due to lack of corroboration (discussed here).

But I’ve long believed that the rule is worthy of a fresh analysis by our civilian court in part because confessions are the least reliable form of proof known to the law. A confession is the only form of proof that is both presumed inadmissible (when challenged, the Government has the burden to show admissibility) and requires corroboration (separate from the confession itself or another confession). Unlike eyewitness identification, circumstantial evidence, or inconsistent testimony from an alleged victim loaded with bias and prejudice, an accused cannot be convicted on his confession alone.

A recent unpublished decision by a three-judge panel of the Navy-Marine Corps CCA, in United States v. Green, No. 201300276 (N-M. Ct. Crim. App. July 31, 2014) (link to unpub. op.), might just get the corroboration rule back to CAAF. The CCA affirms the findings and sentence, that include a conviction for rape of a child and a sentence of confinement for 140 months, after concluding that the appellant’s confession was sufficiently corroborated.

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In United States v. Wilson, 66 M.J. 39 (C.A.A.F. 2008) (link to slip op.), a divided CAAF concluded that the defense of mistake of fact as to age does not apply to a charge of non-forcible sodomy with a child under the age of 16 in violation of Article 125 (of note, Article 125 was amended by section 1707 of the FY14 NDAA, eliminating non-forcible sodomy as an offense). But Congress has long provided a statutory defense of mistake of fact as to age in a prosecution for certain sexual offenses with a child in violation of Article 120, enacting the first such defense in Section 1113 of the National Defense Authorization Act for 1996, 110 Stat. 186, 462 (1996). Such a defense provides that a service member accused of a sexual act with a child under the age of 16 is not guilty if the accused reasonably (but wrongly) believed that the child was at least 16 and the child was in fact at least 12.

This creates the possibility that a service member who commits sexual activity with a child under the age of 16 while under the reasonable but mistaken belief that the child is over 16 may be charged with an offense under Article 120 for which there is a defense of mistake, with an offense under Article 125 for which there isn’t a defense of mistake, or with both.

It’s both charges in the ongoing Army court-martial of Private Hernandez: sexual assault of a child, sexual abuse of a child, and sodomy with a child in violation of Articles 120b (2012) and 125. The case is ongoing because the Army CCA has now issued two opinions on a Government petition for extraordinary relief, first denying the petition in an unpublished summary disposition by a three-judge panel, and then granting the petition in the form of a writ of prohibition in an en banc published opinion. United States v. Gross, Military Judge, and Hernandez, Real Party in Interest, No. 20140293 (A. Ct. Crim. App. Jun. 5, 2014) (per curiam) (Hernandez I) (link to unpub. op.), rev’d on recon. en banc, __ M.J. __, (A. Ct. Crim. App. Aug. 28, 2014) (Hernandez II) (link to slip op.).

At issue is the action of the military judge on the accused’s efforts to have the defense of mistake of fact as to age applied to the sodomy charge, despite CAAF’s opinion in Wilson.

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In its recent opinion United States v. Riesbeck, No. 1374 (CGCCA 5 Aug 2014), the CGCCA finds that an appellant waived a challenge to a “stacked” panel for his general court-martial. The appellant was charged with and convicted of, among other things, a specification of rape in violation of Article 120, UCMJ. The charges stemmed from an incident in September 2010 that occurred during a port call in Puerto Vallarta, Mexico.

On appeal, the appellant raises several issues including the composition of his court-martial panel. The final panel chosen by the convening authority consisted of seven women and three men, which was actually an increase in women from the six women and four men that had been on a previous version of the convening order. Of these, five individuals had served as or were currently serving as victim advocates, and two others had assisted women who had complained of sexual assault. Two of these individuals, who were trained as victim advocates or had assisted a female sexual assault complainant, were successfully challenged for cause and eventually excused. However, the appellant’s final panel that was seated included five women who had served or were serving as victim advocates or had assisted a woman who had complained of sexual assault.

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In United States v. Wilson, No. 20140386 (A. Ct. Crim. App. Aug. 15, 2004) (link to unpub. op.), the Army CCA reverses in part a trial judge’s decision suppressing the accused’s confession and physical evidence seized from his vehicle.

A camera was observed during a safety inspection of the accused’s vehicle by leaders from his command. It was suspected that the camera belonged to the unit and the camera’s serial number was going to be compared against unit records when the accused – who was not advised of his Article 31(b) rights – “stated that the camera belonged to the unit and that he had intended to borrow it for the weekend.” Slip op. at 2. Military police were called and the accused consented to a search of his vehicle, revealing “drug paraphernalia containing marijuana residue.” Slip op. at 3.

The military judge suppressed everything in a five page ruling that the CCA references as an appendix but is not actually attached to the CCA’s opinion. But the CCA reproduces this passage:

The absence of Article 31(b) rights renders the statements given by the accused inadmissible. Since the accused’s statements and verbal acts were obtained based on implicit coercion, the statements are also inadmissible for impeachment purposes. Subsequent evidence obtained, including the camera, lens, [storage device], and paraphernalia, as well as the accused’s written consent to search his POV, are fruit of the poisonous tree and are also inadmissible pursuant to [Mil. R. Evid] 304(a).

Slip op. at 5. The CCA affirms the judge’s suppression of the unwarned statements by the accused but reverses on their inadmissibility for impeachment purposes, finding that the facts “cannot support a necessary conclusion of law that appellee’s statement was involuntary in the sense that it was the product of coercion, unlawful influence, or inducement, which is the prerequisite to precluding use of admissions in impeachment of an accused, notwithstanding failure to advise of Article 31 rights or rights to counsel.” Slip op. at 6. The CCA also reverses the judge’s ruling regarding the search, finding that:

Here, the military judge determined that appellee’s statutory Article 31 rights were violated. The military judge focused solely on unwarned statements by appellee—there were no findings or analysis regarding an illegal search or other constitutional violation. The military judge concluded summarily that: (1) the absence of Article 31 rights warnings made all the appellee’s statements inadmissible; (2) the statements were, therefore, obtained by “implicit coercion;” and (3) all subsequent evidence was “fruit of the poisonous tree” and inadmissible. However, this “fruit” was not from the same tree, nor was it even from the same orchard. More than three hours after the initial questions by SGT WA, appellee voluntarily consented in writing to a search of his vehicle. Because the consent to search was not a “statement” of the accused, the military judge applied the wrong legal principles and abused his discretion when he suppressed the drug paraphernalia discovered during the consent search.

Slip op. at 7 (emphasis in original).

The NMCCA recently denied relief in two cases involving assertions of speedy trial violations.

In United States v. Spratling, No. 201400060 (N-M. Ct. Crim. App. Jul. 31, 2014) (link to slip op.), the CCA rejected the appellant’s argument that the Government’s preferral of replacement charges was a subterfuge to deprive him of a speedy trial. The appellant was charged with an indecent act in violation of Article 120 (2006), receipt of child pornography in violation of Article 134, and an indecent act in violation of Article 134. The allegations were all based on the appellant’s interactions with KS, a minor.

The charges were preferred in January 2013, and an Article 32 pretrial investigation was conducted. After the 32, “the Government preferred substantially the same charges” in March, and those charges were referred to trial by general court-martial. Slip op. at 2. The Defense then successfully moved to dismiss the Article 120 offense as an unreasonable multiplication of charges, leaving only the child pornography and indecent act specifications under Article 134. In response, the Government preferred two new charges in June alleging an indecent act in violation of Article 120 and receipt of child pornography in violation of Article 134. These charges were referred to the same general court-martial, and the remaining charges preferred in March were dismissed. This action had the effect of both reinstating the dismissed Article 120 charge and resetting the speedy trial clock.

The appellant was then convicted of both the 120 and 134 offenses, contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, and sentenced to confinement for 60 days and a bad-conduct discharge. Before trial the appellant moved to dismiss  the charges for violation of his right to a speedy trial, but the military judge denied the motion. The judge “specifically ruled that the trial counsel’s dismissal on 9 July 2013 of the child pornography charge at the direction of the CA, was neither improper nor a subterfuge.” Slip op. at 4.

The appellant renewed this claim on appeal (personally, as a Grostefon matter), but the CCA denied relief by agreeing with the trial judge’s ruling. However, the CCA merely summarily accepts the judge’s conclusion regarding the re-preferral, casting it as a finding of fact that is “clearly supported by the record.” Slip op. at 4. The CCA does not actually discuss the reason why the charges were re-preferred (and it’s not particularly clear why the Government did this, except to usurp the judge’s unreasonable multiplication ruling). Nor does the CCA discuss whether the appellant demanded a new Article 32 each time new charges were preferred, as was his right. See, e.g., United States v. Leahr, 14-0265/CG, 73 M.J. 364 (C.A.A.F. Jul. 25, 2014) (CAAFlog case page). See also Article 32(c).

But things are even wilder in United States v. Wilder, No. 201400118 (N-M. Ct. Crim. App. Aug. 12, 2014) (link to slip op.), where the appellant pleaded guilty pursuant to a pretrial agreement that required him “to withdraw his motion to dismiss for a violation of his right to a speedy trial.” Slip op. at 2. The Government “concedes that the condition was impermissible,” but argued that the appellant waived the issue by his unconditional plea of guilty. Id. But in addition to the unconditional plea, the CCA notes that:

In an exhibit entitled, “Sentencing Memo (Continuation of Lance Corporal Wilder’s unsworn statement through counsel),” the civilian defense counsel argued: “The conviction will stick. There were motions pending and waived by this plea that could have resulted in charges being dismissed, perhaps with prejudice. Even if the motions were denied, there would be appellate issues that would have kept this case active for years, perhaps resulting in a retrial. Pleading guilty removed the real possibility charges would be dismissed and removed realistic appellate issues.” Defense Exhibit B at 1.

Slip op. at 4 n.4 (emphasis in original). Despite this, the CCA finds that the appellant did not waive the speedy trial issue, and that he has made a “prima facie showing or a colorable claim that he is entitled to relief.” Slip op. at 5 (quoting United States v. McLaughlin, 50 M.J. 217, 219 (C.A.A.F. 1999)). The CCA then analyzes the issue, beginning with the fact that the appellant was in pretrial confinement for only some, and not all, of the charges, and that he was arraigned twice (initially objecting to joinder).

Separating the earlier charges (arraigned first) from the later charges (arraigned second), the CCA concludes that there was no speedy trial violation under R.C.M. 707, Article 10, or the Sixth Amendment. This conclusion is made possible by the fact that the CCA “hold[s] that R.C.M. 707(a)(1) establishes the commencement of the speedy trial clock for the additional charges as the dates of preferral,” not the date of imposition of pretrial confinement. Slip op. at 6.

Recent CAAF jurisprudence has been loaded with significant lesser included offense (LIO) issues. Things really got started in 2008 when, in United States v. Medina, 66 M.J. 21, 26 (C.A.A.F. 2008) (discussed here), the court viewed the three clauses of Article 134 as alternative theories of prosecution and concluded that Article 134 clause 1 & 2 offenses are not are not necessarily LIOs of clause 3 offenses. CAAF continued this reasoning in United States v. Miller, 67 M.J. 385 (C.A.A.F. 2009) (discussed here), holding that a simple disorder under Article 134 is not a LIO of every enumerated article. Then, in United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010) (discussed here), the court returned to the elements test for determining LIOs, creating what we called an easy button for LIOs (and producing some entertaining citations in subsequent decisions). Notably, in Jones, the court noted

While it has been said that “[t]he question of what constitutes a lesser-included offense [in the military justice system] . . . is a Hydra,” United States v. Weymouth, 43 M.J. 329, 342 (CAAF 1995) (Crawford, J, concur ring in the result), rather than embracing a “Hydra” we return to the elements test, which is eminently straightforward and has the added appeal of being fully consonant with the Constitution, precedent of the Supreme Court, and another line of our own cases.

Jones, 68 M.J. at 468.

But things weren’t really so eminently straightforward. For instance, in United States v. Rauscher, 71 M.J. 225 (C.A.A.F. 2012) (CAAFlog case page), the court found that the designation of a specific statute is immaterial when the proper elements of a different offense are explicitly alleged in the specification. And in United States v. Tunstall, 72 M.J. 191 (C.A.A.F. 2013) (CAAFlog case page), CAAF rejected a LIO that was too similar to the charged offense. There’s also the closely-related concept of multiplicity, which CAAF tackled in United States v. Campbell, 71 M.J. 19 (C.A.A.F. 2012) (CAAFlog case page), explaining that multiplicity is aimed at protection against double jeopardy. CAAF also considered multiplicity in United States v. Elespuru, 73 M.J. 326 (C.A.A.F. 2014) (CAAFlog case page), where the court addressed a multiplicity claim by finding that the issue was waived at trial but then the court set aside one of the two convictions anyway, noting that they were charged in the alternative.

The clarity of Medina, Miller, and Jones is somewhatobscured by applications like Rauscher, Tunstall, Campbell, and Elespuru. But in a recent unpublished decision in United States v. Hart, No. 201300295 (N-M.Ct.Crim.App. Aug. 19, 2014) (link to slip op.), a three-judge panel of the NMCCA eliminates all clarity and reincarnates the hydra.

The appellant in Hart was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of unpremeditated murder, involuntary manslaughter, aggravated assault, negligent homicide, and child endangerment in violation of Articles 118, 119, 128, and 134. He was sentenced to confinement for twelve years, reduction to E-1, total forfeitures, and a dishonorable discharge. The convictions all related to the death of the appellant’s infant daughter who the appellant was accused of forcibly shaking.

In particular, the appellant was convicted of three of the charges (unpremeditated murder (Art. 118(3)), involuntary manslaughter (Art. 119(b)(1)), and negligent homicide (Art. 134)) for conduct that occurred on a single day and resulted in the girl’s death (the aggravated assault and child endangerment charged addressed abuse on an earlier date). Writing for the three-judge panel of the CCA, Judge Jamison notes that these offenses “were specifically charged for contingencies-of-proof.” Slip op. at 9. However, the members were not instructed that the appellant could be convicted of no more than one of the three. Rather, “the military judge elected to merge for sentencing purposes the unpremeditated murder, involuntary manslaughter, and negligent homicide” offenses, meaning that the appellant was convicted of all three but sentenced only for the greatest offense (unpremeditated murder). Slip op. at 7. On appeal the appellant asserts that the military judge should have dismissed the involuntary manslaughter and negligent homicide offenses as an unreasonable multiplication of charges. Slip op. at 6-7.

Rather than second-guess the trial judge’s decision to merge the three offenses for sentencing, Judge Jamison reviews both offenses from a multiplicity standpoint and finds that both should be dismissed as LIOs. The finding of involuntary manslaughter as a LIO of unpremeditated murder in violation of Article 118(3) is rather unremarkable considering the elements of the each offense (and Judge Jamison notes the court’s decision in United States v. Dalton, 71 M.J. 632, 634 (N.M.Ct.Crim.App. 2012), aff’d, 72 M.J. 446-47 (C.A.A.F. 2013) (summary disposition), cert. denied, 134 S.Ct. 941 (2014), in which it affirmed involuntary manslaughter as a LIO of unpremeditated murder in violation of Article 118(2)). However, Judge Jamison’s conclusion that negligent homicide in violation of Article 134 is a LIO of unpremeditated murder in violation of Article 118(3) is remarkable for a couple of reasons, the first of which is that it is directly contrary to CAAF’s conclusions in United States v. Girouard, 70 M.J. 5, 9 (C.A.A.F. 2011), and United States v. McMurrin, 70 M.J. 15, 18 (C.A.A.F. 2011), and the second of which is that Article 134 offenses necessarily include an element missing from Article 118: prejudice to good order and discipline or conduct likely to bring discredit upon the armed forces.

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In a published opinion in United States v. Keefauver, No. 20121026, __ M.J. __ (A.Ct.Crim.App. Jul. 29, 2014) (link to slip op.), a three-judge panel of the Army CCA conducts what looks to be an unremarkable application of precedent to facts to affirm a military judge’s ruling that admitted evidence discovered by law enforcement agents during a protective sweep search of the appellant’s on-base residence. The search occurred after the agents completed a controlled delivery of a U.S. Mail package smelling strongly of marijuana and ultimately found to contain between three and four pounds of the drug.

While the CCA notes that Supreme Court precedent permits “a protective sweep [which] is a quick and limited search of premises conducted to protect the safety of police officers or others,” slip op. at 7 (quoting United States v. Starnes, 741 F.3d. 804, 807 (7th Cir. 2013)), the following facts appear to have a significant role in the CCA’s ultimate conclusion:

Once the package was inside the house, the surveillance team moved in and entered the home to retrieve the box. TC-D answered the door and SA SR informed him that he was with the police and was there to search the home. TC-D became “irate,” yelling an “ungodly tirade of obscenities” at the agents including, “what the fuck” and “get the fuck off my property,” as well as “I hate pigs,” “I hate cops,” “[c]ops can all die,” or words to that effect. He was placed in handcuffs and seated near the garage. Special Agent SR immediately located the package right inside the home in the hallway, about ten feet from the front door.

Slip op. at 4. The agents discovered drug paraphernalia,  firearms, additional drugs, and thousands of dollars worth of U.S. currency in the house.

The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of two specifications of violating a general regulation by wrongfully possessing drug paraphernalia and unregistered weapons on-post, one specification of wrongful possession of marijuana, and one specification of child endangerment in violation of Articles 92, 112a, and 134, and was sentenced to confinement for four years, total forfeitures, reduction to E-1, and a bad-conduct discharge. Slip op. at 1.

In an unpublished opinion in United States v. Stout, No. 20120592 (A.Ct.Crim.App. Jul. 25, 2014) (link to unpub. op.), the Army CCA reverses the appellant’s pleas of guilty to one specification each of abusive sexual contact with a child, indecent liberties with a child, and possession of child pornography, in violation of Articles 120 and 134, for which he was sentenced to confinement for eight years, total forfeitures, reduction to E-1, and a bad-conduct discharge. Judge Borgerding writes for a three-judge panel of the court.

This passage from the opinion’s concluding section describes the case best:

As we stated in United States v. Le:

In cases such as appellant’s, we agree with Judge Trant’s observation in United States v. Pecard: “The spectacle, where both counsel take hold of appellant’s arms while the judge grabs the ankles and together they drag appellant across the providence finish line, is not only troublesome, but, as demonstrated by the result in this appeal, in the end, futile.”

59 M.J. 859, 864 (Army Ct. Crim. App. 2004) (quoting United States v. Pecard, ARMY 9701940, 2000 WL 35801828, at *5 (Army Ct. Crim. App. 7 Dec. 2000) (mem. op.)).

Slip op. at 10-11. You can read the facts of the case in the opinion and ask yourself if the appellant’s encounters with his 14-to-15 year old stepdaughter were innocuous or not. But one part really struck me: the CCA notes that in his unsworn statement

Appellant told the military judge, “in [his] opinion, at the time” he was just “being a parent” and it was only after his defense counsel explained the law to him that he understood he had done something wrong.

Slip op. at 6. Since both abusive sexual contact with a child and indecent liberties with a child require specific intent, and possession of child pornography requires knowledge, it’s troubling that a defense counsel would convince an accused of his intent after the fact.

I’ve periodically written about why charges need to be alleged in the conjunctive (e.g., prejudicial to good order and discipline and likely to bring discredit upon the armed forces), not in the disjunctive (e.g., prejudicial to good order and discipline or likely to bring discredit upon the armed forces). For instance, in my analysis of United States v. Stewart, 71 M.J. 38 (C.A.A.F. Mar. 6, 2012) (CAAFlog case page) I wrote:

The tragedy is that CAAF’s resolution turns on the amateurish charging decision of the government, rather than any of the other significant issues presented by this case (which included the important question of the proper role of the military judge in determining the availability of the defense of consent). The rule of “charge in the conjunctive, prove in the disjunctive” is old and well-settled (see, for example, the United States Attorneys’ Manual entry on the subject), and a court-martial is specifically authorized, by R.C.M. 918, to return findings with exceptions. The use of the word “or” in place of “and” doesn’t just make a specification duplicitous, it creates a potential referral (i.e., jurisdictional) issue as the court-martial cannot know which facts were the basis for the “reasonable grounds to believe that an offense triable by a court-martial has been committed,” as required by R.C.M. 601(d)(1).

The appeal of disjunctive pleadings is likely the fear that conjunctive pleadings force the prosecution to prove both sides of the conjunction – a fear that is mistaken and nonsensical.

In a recent unpublished opinion in United States v. Dietz, No. 38117 (A.F.Ct.Crim.App. Jul. 17, 2014) (link to slip op.), the AFCCA issues yet another reminder of this rule:

We agree with our colleagues in the other service courts that “pleadings and findings in the disjunctive may constitute error, but . . . [s]uch error is not uniformly fatal and, in the absence of material prejudice, may be waived.” United States v. Crane, ARMY 20080469, unpub. op. at 1 (Army Ct. Crim. App. 18 August 2009) (citing United States v. Gonzalez, 39 M.J. 742, 749 (N.M.C.M.R. 1994)). “While charging in the disjunctive is disfavored, under Article 134, [UCMJ,] it does not automatically render the specification fatally defective.” United States v. Miles, 71 M.J. 671, 673 (N.M. Ct. Crim. App. 2012), rev. denied, 72 M.J. 257 (Daily Journal 19 April 2013). In a guilty plea case, we review the specification with “maximum liberality.” United States v. Ballan, 71 M.J. 28, 33 (C.A.A.F. 2012) (citation and internal quotation marks omitted). “It has been exhaustively clarified that the phrase ‘prejudicial to good order and discipline or of a service-discrediting nature’ merely pleads two different theories of liability for a singular terminal element under which an accused can be found guilty of but one offense.” United States v. Chestnut, ARMY 20120612 (Army Ct. Crim. App. 31 October 2013) (unpub. op.) (citing United States v. Medina, 66 M.J. 21 (C.A.A.F. 2006)), rev. denied, 73 M.J. 294 (Daily Journal 24 April 2014).

Slip op. at 3. The court concludes:

We would nonetheless echo the admonition of the Army Court of Criminal Appeals:

We take this opportunity to strongly discourage disjunctive pleadings. Such pleadings serve no discernable purpose and unnecessarily create avoidable appellate issues. While statutory construction may offer alternate theories of criminal liability, pleadings should specify those theories, using the conjunctive . . . if more than one may apply. If concerned with exigencies of proof, trial counsel may plead in the conjunctive and fact-finders may find by exceptions. This eliminates any potential for ambiguity in pleadings or findings. Further, we urge trial judges to eliminate disjunctives by ordering the Government to amend the specification when, as here, it otherwise gives sufficient notice of the crime alleged and would not constitute a major change. Certainly, judges should ensure disjunctives are eliminated when entering findings or when members make findings on a specification.
Crane, unpub. op. at 2 (internal citations omitted).

Slip op. at 5 (omission in original).

In an issue-packed unpublished opinion in United States v. Hudgins, No. 38305 (A.F.Ct.Crim.App. Apr. 3, 2014) (link to slip op.), the Air Force CCA considers the tardy disclosure to the Defense of mental health records of an alleged victim of sexual assault, finding no prejudice in a case where the Government employed an in camera review of the records by the military judge to avoid its discovery obligation.

The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of two specifications of abusive sexual contact, one specification of rape, one specification of forcible sodomy, and one specification of assault consummated by a battery, in violation of Articles 120, 125, and 128. He was sentenced to confinement for eleven years, a reprimand, and a dishonorable discharge.

The charges involved encounters with two female airmen, DB and PS. The appellant and DB had a pre-existing sexual relationship, but she claimed that he forcibly raped her while she was sleeping with him in her bed. DB made this allegation within a day of the encounter. The allegation by PS involved an encounter that occurred before the encounter with DB, but PS did not report it until after being encouraged to do so by her boyfriend and after seeking counseling.

The Defense sought production of the active duty mental health records of PS. Such records are generally privileged against disclosure (to either side) under Military Rule of Evidence 513.

Defense counsel sought several pieces of information they believed were contained in the mental health records, including “where she talks about issues with her current boyfriend.” The defense asserted this information was relevant and necessary because it would further the defense theory that A1C PS reported the sexual assault because her boyfriend might surmise it was consensual if she did not report it, possibly jeopardizing the relationship. The Government opposed producing her mental health records. The military judge reviewed A1C PS’s mental health records in camera and determined none of the mental health records were relevant, at least in regard to findings.

Slip op. at 6. The Defense also sought production of records related to prior statements PS might have made about sexual abuse that contradicted her in-court testimony during a pre-trial motions session. Slip op. at 9.

After the appellant was convicted, a Government expert psychologist testified about post-traumatic symptoms exhibited by both victims. In particular, the psychologist “testified that he had interviewed or examined both A1C PS and A1C DB, and testified that both Airmen exhibited many symptoms consistent with PTSD.” Slip op. at 9-10. As a result, the military judge determined “that the Government had placed the mental health of A1C PS and A1C DB at issue in sentencing proceedings, and therefore he planned to disclose certain records to the defense.” Slip op. at 10. But first the judge allowed DB to testify in sentencing. Then he provided records to the Defense that included information about prior allegations of sexual assault made by PS. Slip op. at 10. The basis for the jude’s disclosure to the Defense was “a possible contradiction” with the pre-trial motions testimony by PS, “potentially providing a basis to impeach her.” Slip op. at 10.

Upon reviewing the records, the Defense moved for a mistrial.

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In an unpublished opinion in United States v. Dunton, No. 201300148 (N-M.Ct.Crim.App. Jul. 15, 2014) (link to unpub. op.), the Navy-Marine Corps CCA finds “merit in the appellant’s argument that the military judge erred by admitting over defense objection certain testimony concerning the appellant’s sexual orientation.” Slip op. at 1.

The appellant, a noncommissioned officer and infantry squad leader, faced at trial three specifications of wrongfully committing sexual contact in the barracks upon three different members of his company. At the time of his offenses, two of the three Marines were members of his platoon; Corporal (Cpl) [P] and Lance Corporal (LCpl) [E]. A third victim, LCpl [B] lived in the same barracks and was a member of a different platoon within the company.

Slip op. at 3. The appellant and all three of his alleged victims are male.

The appellant was convicted contrary to his pleas of not guilty, by a special court-martial composed of officer members, of two specifications of wrongful sexual contact and one specification of assault consummated by a battery, in violation of Articles 120 and 128. He was sentenced to confinement for twelve months, reduction to E-1, forfeiture of $994.00 pay per month for 12 months,and a bad-conduct discharge (these are the jurisdictional maximums for each type of punishment).

The appellant’s first victim, Cpl P, returned to his barracks room after a night of drinking. Later, the appellant entered Cpl P’s room and put his hand down Cpl P’s pants. A few days later the second victim, LCpl B, awoke to find the appellant naked and lying next to him in his bed, with the appellant’s hand under LCpl B’s shirt resting on his chest. Neither Cpl P nor LCpl B immediately reported what happened. A few months after this, the third victim, LCpl E, was playing a video game in his barracks room. He allowed the appellant into his room. The appellant then opened and reached into LCpl E’s shirt, and then he grabbed LCpl E’s buttocks under his sweatpants. LCpl E immediately left the room and reported the incident.

Soon after, LCpl E, Cpl P, and two other Marines confronted the appellant. “Accounts of what happened next differed at trial. What is clear is that an altercation ensued during which Cpl [P] punched the appellant in the face and one other Marine took the appellant to the ground in a ‘full mount’ hold. Following this scuffle, LCpl [E] reported the earlier events of the evening.” Slip op. at 4. An investigation followed, and the appellant was charged with the sexual offenses involving Cpl P, LCpl P, and LCpl E. “After charges were referred to trial, several additional Marines also reported similar unwelcome physical contact from the appellant.” Slip op. at 4.

Before trial, the Government moved to admit evidence that the appellant had a sexual interest in men. Slip op. at 7. The Government offered this evidence to show “intent and a ‘common scheme [] that when [the appellant] gets drunk, [he] finds a junior Marine or a Marine equal to him, somebody that he feels that he can get close to, and encroaches on their physical space in his intoxicated state, and progressively increases his touching with the intent to sexually gratify himself.'” Slip op. at 9 (quoting Record at 144) (changes in original). This looks a lot more like a propensity basis than the non-propensity bases of intent or common scheme (where the Government would use the other acts as evidence of the appellant’s intent or plan on a specific, charged occasion), and the Defense opposed the Government motion. But the military judge granted the motion, finding specifically that one of the uncharged alleged incidents “was sufficiently similar to the charged offenses . . . and therefore probative of the appellant’s ‘intent to gratify his sexual desire.'” Slip op. at 7. The military judge also found that the probative value of uncharged incident was not substantially outweighed by the danger of unfair prejudice. The CCA finds no error in this analysis, concluding:

As she differentiated between the probative value and attendant prejudice, and distinguished this evidence from other uncharged acts offered by the Government, we afford her great deference and conclude that there lies no clear abuse of discretion.

Slip op. at 10. But the military judge also permitted the Government to introduce the testimony of a LCpl J, who testified (over Defense objection) about seeing the appellant approach LCpl B on the catwalk outside LCpl B’s barracks room the evening before the second incident (where LCpl B awoke to find the appellant naked in his bed). The CCA finds that the military judge erred by permitting this testimony.

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