Last month the Coast Guard Court of Criminal Appeals issued a published opinion in United States v. Shannon, __ M.J. __, No. 1358 (C.G.C.C.A. April 12, 2013). The case involves two issues arising from pleas of guilty by the Appellant (an E-6), before a general court-martial composed of a military judge alone, to one specification of maltreatment, two specifications of assault, and one specification of wrongfully providing alcoholic beverages to a minor, in violation of Articles 93, 128, and 134, for which the Appellant was sentenced to reduction to E-3 and a bad-conduct discharge.

Judge Norris writes for a unanimous three-judge panel, rejecting the issues raised by the Appellant and affirming the findings and sentence. The issues are:

I. [Whether t]he Military Judge abused his discretion by not dismissing the charges against Appellant after finding unlawful command influence.

II. [Whether t]he Military Judge abused his discretion by not dismissing Appellant’s case with prejudice after granting Appellant’s motion to dismiss for violations of RCM 707(a).

The opinion makes pretty quick work of the first issue, which involves curative measures adopted by the trial judge to address some pretty egregious unlawful command influence by the Appellant’s officer-in-charge:

In this case, the incident that precipitated the charges against Appellant was his alleged rape of the girlfriend of one of his shipmates. Upon this accusation being made, Appellant was removed from his command, USCGC GREENBRIER, and was sent to another command. Over the next 13 months, the Officer-in-Charge (OIC) of GREENBRIER repeatedly referred to Appellant as “the rapist” in all manner of settings, including in front of the entire crew. This behavior was the basis for a motion to dismiss for unlawful command influence (UCI), which was litigated at an Article 39(a), UCMJ, session on 16 November 2010.

Shannon, slip op. at 2. The trial judge applied significant remedies short of dismissal, and Judge Norris finds them adequate, noting that they are “strikingly similar” to the remedies crafted by the trial judge and found adequate in United States v. Douglas, 68 M.J. 349, 354 (C.A.A.F. 2010). Slip op. at 4. Further, unlike Douglas (where CAAF found insufficient evidence in the record that the remedies were actually applied), Judge Norris finds that, “there is affirmative evidence in the record in the instant case that the remedies were carried out.” Slip op. at 6.

The second issue addresses the fact that this case was before two separate courts-martial, with the first court ending with a pretrial dismissal, without prejudice, due to a violation of the speedy trial provisions of Rule for Courts-Martial 707. The Appellant argues that the dismissal should have been with prejudice (meaning he could not be charged again). But:

From 27 May 2010, when the first judge dismissed the first charges without prejudice on R.C.M. 707 grounds, to 9 January 2012, when Appellant, on appeal, raised the issue of the character of dismissal of the first charges, the record is entirely devoid of evidence that Appellant took any action to challenge the nature of the dismissal.

Slip op. at 9. Like voting, speedy trial objections have to happen early and often, and Judge Norris notes that the Appellant did not raise the RCM 707 issue in the second (and ultimately final and reviewable) court-martial. “Appellant underwent two separate trials, and the appeals process for his second trial is not a proper forum in which to appeal rulings made in the first trial.” Slip op. at 9.

But Judge Norris also engages in a discussion about the Appellant’s claim that he entered a conditional plea, “which preserved any speedy trial issue, including the speedy trial issue under R.C.M. 707 from the first trial.” Slip op. at 11. Judge Norris reasons:

The military judge’s acknowledgment that the speedy trial issue was not waived related only to Appellant’s Constitutional speedy trial motion in the second trial, and did not encompass his R.C.M. 707 speedy trial motion from the first trial. This conclusion is warranted because (1) the only speedy trial motion that had been litigated before this judge was the Constitutional motion; the R.C.M. 707 speedy trial issue from the first trial had never been the subject of any substantive discussion at the second trial; (2) the judge’s initial advisement to Appellant was that, by his plea, he would waive five enumerated motions, including the Constitutional speedy trial motion from the second trial; the R.C.M. 707 speedy trial motion was not one of the enumerated motions; and (3) following the recess, when the military judge revised his advice to Appellant that he would be able to appeal the speedy trial issue, notwithstanding his guilty plea, his advisement was singular, i.e. his plea did not waive “the” speedy trial “motion.”

Unlike a denial of due process such as is envisioned by a Constitutional speedy trial motion citing Barker v. Wingo, a speedy trial issue under R.C.M. 707 can be waived. Hence Appellant’s guilty plea waived any issue regarding the character of the dismissal of the first charges. Even if Appellant’s plea could be considered a conditional plea, it is clear that preservation of the right to appeal the character of the dismissal of the first charges was not a condition upon which Appellant’s plea was made. Thus, on the general principle that a guilty plea waives any defects, as well as by reference to R.C.M. 707(e), Appellant waived his right to appeal that issue by his guilty plea.

Slip op. at 11 (citations omitted). Ultimately, by failing to litigate at the second court-martial the character of the dismissal from the first court-martial, the Appellant waived this issue.

There isn’t a whole lot of appellate litigation in the Coast Guard, so I think the odds are good that there will be a petition for review by CAAF. I don’t know enough about this case to say if such a petition is a good idea from a legal perspective, but from a practical perspective I have to recommend caution when appealing a ruling from someone named “Judge Norris” due to the potential for roundhouse kicks.

In a recent unpublished opinion in United States v. Rapp, No. 201200303, a three-judge panel of the Navy-Marine Corps Court of Criminal Appeals reminds us that words mean things.

Seaman Apprentice Rapp was convicted, pursuant to his pleas by a military judge alone as a general court-martial, of one specification of receiving child pornography, one specification of possessing four or more images of child pornography, and one specification of attempting to receive child pornography, all in violation of Article 134. He was sentenced to confinement for 5 years (later reassessed to 54 months), total forfeitures, reduction to E-1, a $16,000 fine, and a dishonorable discharge. Pursuant to a pretrial agreement, all confinement in excess of 12 months was suspended.

Before the CCA, the appellant claims, inter alia, that the military judge erred by accepting his guilty plea to receiving child pornography and possessing four or more images of child pornography, because some of the 16 images were not child pornography. The CCA agrees.

Judge Joyce writes for a unanimous panel. Her opinion begins with a discussion of how the Government incorporated the definition of child pornography provided by 18 U.S.C. § 2256(8) into the charge. Judge Joyce notes that this definition is pretty specific, including requiring the visual depiction to involve “sexually explicit conduct,” which means:

actual or simulated (i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; (ii) bestiality; (iii) masturbation; (iv) sadistic or masochistic abuse; or (v)lascivious exhibition of the genitals or pubic area of any person. . .

Slip op. at 5. “[T]he application of ‘lascivious exhibition’ is pivotal to this case,” and Judge Joyce carefully reviews caselaw discussing what makes an exhibition “lascivious” in this context. Slip op. at 6-7. Notably, of the 16 images at issue (and attached to the record as a prosecution exhibit), “only one image included in [the exhibit] depicts a sexual act.” Slip op. at 6. Also, the Appellant didn’t review the images in advance of his plea, which occurred 18 months after his computer was seized, leading to a pretty non-specific plea inquiry. After reviewing the transcript of the plea inquiry, Judge Joyce concludes:

[T]he military judge was required to ensure compliance with the legal statutory definition of child pornography. Mere conclusions of law recited by the accused are insufficient to establish a factual basis for a guilty plea. As part of establishing the facts to a child pornography charge such as this, the appellant must describe images that contained minors engaged in sexually explicit conduct, in this case the relevant conduct being the lascivious exhibition of the genitals and pubic area of any person. An insufficient inquiry took place, and the appellant did not satisfy the elements of each and every offense.

Slip op. at 11 (citations and marks omitted). She also finds that the Appellant was not provident to an attempt:

During the providence inquiry, the appellant repeatedly told the military judge, “I tried to get child pornography” and “I was attempting to receive child pornography.” Record at 71, 73. Again, these statements are nothing more than legal conclusions, and are compromised by the appellant’s apparent misunderstanding of what constitutes child pornography.

Slip op. at 12-13. But then Judge Joyce goes one step further, noting that of the 16 issues at issue in this case, six of them “do not depict sexually explicit conduct, and, in fact do not depict any genitals or pubic areas, much less a ‘lascivious exhibition.’” Slip op at 13-14. She finds that these images are constitutionally protected, and raising concerns about other images, including distinguishing some as “child erotica” vice “child pornography,” and wondering about the intent of the photographers for others.

Finally, the Judge Joyce cites CAAF’s opinion last term in United States v. Barberi, 71 M.J. 127 (C.A.A.F. 2012): “If a factfinder is presented with alternative theories of guilt and one or more of those theories is later found to be unconstitutional, any resulting conviction must be set aside when it is unclear which theory the factfinder relied on in reaching a decision.” Slip op. at 15. And so the findings are set-aside and a rehearing authorized.

Re-reading my opinion analysis in Barberi, I see this penultimate paragraph:

Moreover, Barberi creates an even bigger unanswered question: How should the government charge a child pornography case involving multiple images? If the government uses a single specification to allege wrongful possession of multiple images, and just one of those images doesn’t meet the definition of child pornography, must the entire conviction be set-aside? If the answer to this question is “yes,” then must the government charge each image as a separate specification? What about multiplicity and unreasonable multiplication of charges? What about the majority’s prejudice analysis that turns on the “contribut[ion] to the conviction” of the “protected” images; will the admission of any “protected” image at trial, even for a separate specification, create reversible error as to all?

Barberi was a contested case (where the key issue was general verdicts) and this case was a guilty plea (where the key issue is the definition of child pornography), but the NMCCA’s treatment of this case makes me pretty confident that a constitutional deficiency affecting only a few (maybe as few as just one) of the images will be fatal to a child pornography conviction. Accordingly, the Government is going to have to be much more careful with its charging decisions going forward. Do I get to say I predicted this?

Here’s a link to AFCCA’s published decision in United States v. Slagle, __ M.J. __, No. ACM 38087 (A.F. Ct. Crim. App. May 14, 2013) (per curiam).  The court rejects the argument that 18 U.S.C. § 2252A’s maximum sentence doesn’t apply to an Article 134 child pornography conviction unless the specification alleges that the visual depiction is of an actual minor or is virtually indistinguishable from an actual minor.

In United States v. Rose, No. 201100584 (N-M.Ct.Crim.App. Apr 30, 2013) (per curiam) (unpublished),the appellant (an E-6) was convicted of a single specification of wrongful use of cocaine. But the NMCCA finds error in “the military judge’s admission of the cover memorandum, and the ‘Results’ and ‘Certification’ blocks of DD Form 2624, over the appellant’s objection.” Slip op. at 5. Then the court finds prejudice because:

The appellant had been on active duty for nearly 19 years at the time of the alleged offense, and had no prior disciplinary issues. Throughout his career, the appellant had been randomly drug tested approximately 3-4 times a year and there was no evidence that any other test was problematic. At the time of this urinalysis, the appellant had worked at a counter-drug operations command since 2005. The defense’s strategy at trial was that the appellant may have unknowingly ingested cocaine while at a bar, and the appellant took the stand and testified that he did not use cocaine. Three different witnesses, a Navy commander (0-5), a former Navy lieutenant (0-3), and a chief operations specialist (E-7), testified that they believed the appellant had good military character and that he was truthful. No witnesses testified that the appellant used drugs, the appellant did not make any admissions to illicit use, and the Government did not present any paraphernalia or physical evidence of drug use. Thus the only evidence presented against the appellant was the positive drug test. This set the case up as a battle of the experts, and made the improper testimonial hearsay very important to the Government’s case.

The appellant’s expert raised concerns about quality control methods used in the laboratory (as evidenced by an unreported date discrepancy in the chain of custody documents), and questioned the validity and accuracy of the testing conducted on the appellant’s sample (due to significant differences in the values reported during the screen and confirmatory tests, and an apparent voltage surge that occurred during testing). Weighing against that evidence was testimony presented by the Government’s expert, Mr. Fuller, who testified that he had reviewed the drug tests and concluded that the appellant’s urine contained the metabolite for cocaine above the Department of Defense cutoff level, and that no significant problems affected the validity of those results. Had that beenthe totality of Mr. Fuller’s testimony, there would not be a problem in this case. However, Mr. Fuller used the improper testimonial hearsay to bolster his own expert opinion. Mr. Fuller stated three separate times that the results on DD Form 2624 were “certified,” and thus indirectly asserted (since he was not the certifying official) that another expert also reviewed and approved the positive cocaine result. Verbatim Record at 362, 366. This testimony significantly assisted the Government’s case by showing that two experts, not just one, believed that the specimen was properly tested and positive for cocaine.

Slip op. at 6-7. The CCA sets aside the findings and sentence and authorizes a rehearing.

Of note, the court specifically notes and applies Tearman:

We completed such an inquiry in United States v. Tearman, 70 M.J. 640 (N.M.Ct.Crim.App. 2012), and the CAAF recently affirmed our decision, United States v. Tearman, 72 M.J. 54 (C.A.A.F. 2013), so we apply the same reasoning in this case. . . . we find that the 12 pages of internal chain of custody and review documents are not testimonial, because they “were made under circumstances, which, taken as a whole, establish that they were made for an administrative rather than an evidentiary purpose.” Tearman, 2013 CAAF LEXIS 296, at *18 (citing Sweeney, 70 M.J. at 302).

Slip op. at 4-5. Unfortunately, there’s this bit:

Lastly, the 21 pages of computer generated print-outs are not hearsay because they were generated by a machine.

Slip op. at 5. Well, we’ve got autonomous weapon systems that don’t need a manual. Why not autonomous evidence generation to avoid that troublesome confrontation clause? I remember warning about just that…

Edited to add: An additional interesting twist. The sentence for this single-spec conviction was reduction one grade (to E-5) and confinement and forfeitures for 90 days. But the CCA “[has] jurisdiction over this case because the Judge Advocate General (JAG) sent it to this court for review under Article 69(d), UCMJ. To facilitate our review, we ordered a verbatim record of the trial proceedings from arraignment through findings.” Slip op. at 2 N.1.

Remember United States v. Hathorne from last term? No such thing as a “sub-jurisdictional case,” implied the Court of Appeals. Very robust appellate system we have, with the possibility of an impressive six levels of review. This case proves that point.

Here’s a link to United States v. Savage, __ M.J. __, No. ARMY 20110495 (A. Ct. Crim. App. Apr. 11, 2013), a case arising from the 2010 inmate riot at the USDB’s special housing unit.  ACCA found the evidence supporting some of the convictions to be factually insufficient.  But ACCA nevertheless affirmed the sentence as originally approved by the CA, which was three years less than the adjudged length of confinement.  Judge Krauss wrote for a unanimous court.

AFCCA yesterday issued this published opinion fleshing out CAAF’s recent guidance on officiality for Article 107 purposes.  United States v. Passut, __ M.J. __, No. ACM 37755 (A.F. Ct. Crim. App. Apr. 16, 2013).  AFCCA held that due to AAFES’s status as a military instrumentality, a false statement made to an AAFES shopette cashier for the purpose of cashing a worthless check is official.  But a false statement made to an employee of a civilian bank located at a military exchange complex is not.

Judge Hecker wrote for a unanimous panel.

[Insert familiar disclosure here.]

AFCCA issues this published opinion today.  United States v. Burkhart, __ M.J. __, No. ACM 37668 (A.F. Ct. Crim. App. Apr. 9, 2013).

AFCCA has denied a petition for extraordinary relief filed on behalf of a complaining witness by her Special Victims Counsel.  LRM v. Kastenberg, Misc. Dkt. No. 2013-05 (A.F. Ct. Crim. App. Apr. 2, 2013).  We’ve posted the decision here.

As synopsized by AFCCA, at trial, the military judge ruled that the complaining witness “had no standing (1) to move the court, through her SVC or otherwise, for copies of any documents related to Mil. R. Evid. 412 and 513; (2) to be heard ‘through counsel of her choosing’ in any hearing before the court-martial; or (3) to seek any exclusionary remedy, through her counsel, during any portion of the trial.”  Id., slip op. at 4.  “Finding the ‘right to be heard’ in the Military Rules of Evidence does not denote the right to be heard through a personal legal representative, the military judge found A1C LRM was only authorized to be heard personally; through trial counsel in pretrial hearings under Mil. R. Evid. 412 and 513; and, in the event she became incompetent, through a guardian, representative or conservator.”

The complaining witnesses’ appointed appellate counsel (the head of the Air Force JAG School and judge advocates on his faculty) then filed a petition for writ of mandamus with AFCCA on behalf of the complaining witness.  After receiving papers from the parties and amici, AFCCA heard oral argument then stayed further proceedings in the case.  CAAF denied a defense request to dissolve the stay without prejudice.

Today, AFCCA held that it does not have jurisdiction to hear the complaining witness’s petition for extraordinary relief.  AFCCA held, “We find the All Writs Act does not give us the authority to issue a writ of mandamus regarding this particular, collateral, civil/administrative issue involving a non-party to the court-martial.”  The court reasoned:

The military judge’s ruling obviously occurred during a pending court-martial, but that fact alone cannot bring the issue within our jurisdictional ambit. The military judge’s ruling about the scope of the SVC’s role or the alleged victim’s access to motions does not directly involve a finding or sentence that was—or potentially could be—imposed in a court-martial proceeding, nor does it involve a Government interlocutory appeal under Article 62, UCMJ, or amount to a request for a new trial.  The fact that his ruling may affect the procedures used in a future hearing designed to determine the admissibility of evidence under the Military Rules of Evidence does not mean our jurisdiction extends to the adjudication of complaints from the alleged victim regarding those procedures. The Manual for Courts-Martial (Manual) provisions regarding Mil. R. Evid. 412, 513 and 514 do not provide for any appellate or collateral review of the military judge’s decisions or how to conduct the hearings required by those rules, and we decline to create one through the All Writs Act under these circumstances.

Id., slip op. at 7 (footnote and internal citation omitted).

The court continued:  “Furthermore, his ruling does not implicate constitutionally-based rights in a pending court-martial, which has led military appellate courts to exercise jurisdiction in petitions brought by non-parties prior to the entering of findings and sentence.”  Id., slip op. at 8.  Finally, AFCCA disagreed with the complaning witness’s “contention that the CVRA’s provision that states it applies to ‘any court proceeding involving an offense against a crime victim’ includes military courts-martial and thus gives us the authority to issue a writ of mandamus granting her the requested relief.”  Id.  The court also found “the decision of Congress, the President, and the Department to not apply the CVRA to the victims within the UCMJ system and to not adopt a mandamus provision during the years since the CVRA was enacted to be intentional.”  Id.  And even if the CVRA did apply, AFCCA noted, it wouldn’t give the complaining witness a right to the relief she sought.

AFCCA concluded:

Nothing in the UCMJ vests the service courts with open-ended jurisdiction to entertain every challenge brought by interested entities regarding aspects of the court-martial proceedings.  . . .  Nothing in the UCMJ vests the service courts with open-ended jurisdiction to entertain every challenge brought by interested entities regarding aspects of the court-martial proceedings. Because issuing this writ of mandamus would not be necessarily or appropriately in aid of our statutorily-limited jurisdiction, we conclude we do not have the authority to consider the Petitioner’s mandamus petition.

Id., slip op. at 8-9.

Here’s a link to ACCA’s latest published decision which, among other things, rejects a challenge to the military judge’s order dneying the defense’s reequest for a false confession expert witness.  United States v. Bell, __ M.J. __, No. ARMY 20100266 (A. Ct. Crim. App. March 22, 2013).

ACCA agree with the defense that “the military judge erred by relying too heavily on the fact that a false confession expert cannot provide the actual rate of false confessions in real world criminal cases, and concluded in his written findings that ‘a fortiori, there cannot be any technique or theory designed to determine those facts.’”  ACCA warned that “while error rates can be an important component to help determine whether scientific evidence meets the requirements for reliability and relevance, undue reliance on this factor creates an analytical approach that will exclude virtually all expert testimony based on the social sciences.”

But ACCA nevertheless held that the military judge didn’t abuse his discretion in denying the expert witness request.  The court endorsed the trial judge’s decision that even if the testimony satisfied Daubert, “the situational and personal factors that he would testify about were not so counterintuitive as to require expert testimony to assist the members in understanding the evidence or determining a fact in issue.”

ACCA noted that “military practice does not prohibit the use of a false confession expert in courts-martial” and indicated that it could “envision many different scenarios where expert testimony regarding false confessions would be helpful to the fact finder.”  This case, however, was not among them.

ACCA also reduced a finding of guilty to indecent acts with a child to assault consummated by a batter on a child on Fosler grounds.  ACCA reassessed the sentence and knocked 5 years off of the 24 years of confinement.

Judge Martin wrote for a unanimous panel.

In an unpublished opinion, NMCCA found an Article 13 violation and affirmed a sentence of “no punishment.”  United States v. West, No. NMCCA 201200189 (N-M. Ct. Crim. App. March 21, 2013).

Sgt West was initially held in pretrial confinement at the Beaufort County Detention Center, but NMCCA found that her command failed to comply with “[s]ervice regulations requir[ing] that commands seek immediate approval from the second echelon commander when they place a female Marine or Sailor in a civilian jail” and providing that “the female member may remain in confinement for 72 hours pending that approval.”  But in this caes, “the command confined the appellant without approval in the local jail for nearly three months pending her trial by special court-martial.” Read more »

Here’s a link to a published decision AFCCA issued yesterday overturning AFCCA precedent to hold that fine=enforcement confinement can be adjudged even in the absence of adjudged “punitive confinement.”  United States v. Ferris, __ M.J. __, No. ACM 37885 (A.F. Ct. Crim. App. March 20, 2013).  (The point was moot in Ferris, however, because the accused paid the fine.)

Judge Soybel wrote for a unanimous panel.

Deployed military justice is a perennial topic. For instance, there’s this discussion last April, and the topic took the #1 spot in our Top Ten Military Justice Stories of 2010. Now, the NMCCA brings the topic back into the spotlight in its review of a sexual assault case tried in Afghanistan in 2011.

In an unpublished opinion dated today in United States v. Young, No. 201200135, the Navy-Marine Corps CCA sets-aside some findings and the sentence in a case tried at Camp Leatherneck, Afghanistan, in November, 2011.

The appellant contends that he was denied a fair trial because the military judge abandoned his impartial role by aggressively questioning the appellant in front of the members in a manner that directly attacked the appellant’s credibility and suggested to the members that the military judge’s opinion was adverse to the appellant. We agree.

Slip op. at 3. The Appellant, a Marine Staff Sergeant, was convicted pursuant to his pleas of consensual activity in violation of II MEF (Forward) General Order Number One, and contrary to his pleas of indecent exposure and wrongful sexual contact, in violation of Article 120. He was sentenced by a panel with enlisted representation to confinement for 90 days, reduction to pay grade E-3, forfeitures of all pay and allowances, and a bad-conduct discharge.

the appellant was called as the final witness for the defense. Similar to the Government’s witnesses, the appellant made a number of claims during his testimony that a member could reasonably view with skepticism. At the conclusion of his testimony, before the members were allowed to ask questions, the military judge questioned the appellant. Although the questioning started off in an appropriate fashion, after the appellant failed to answer some of the questions to the military judge’s satisfaction, the military judge inexplicably departed from his neutral role and embarked upon what can only be characterized as a devastating cross-examination of the appellant. The military judge’s tone was harsh, and his questions were pointed. The military judge repeatedly interrupted the appellant, and became increasingly aggressive over the course of the examination, to the point where the questions became both argumentative and demeaning. At the end of his questioning, the military judge sua sponte ordered a short recess and departed the courtroom.

Slip op. at 4 (emphasis added). After the recess, the judge instructed the members to “completely disregard anything that I might say or do that seems to indicate I have an opinion one way or another about the facts of this case or about the outcome.” Id. The next day, the trial defense counsel conducted a voir dire of the military judge, and then moved for a mistrial and for disqualification of the judge. Both motions were denied. Discussing these facts, the CCA finds:

The questions the military judge asked did not further develop or clarify the appellant’s testimony, rather they focused on attacking his credibility in front of the members. In questioning the appellant in this manner, the military judge failed to “scrupulously avoid[] even the slightest appearance of partiality.” Shackelford, 2 M.J. at 19. Accordingly, we find that the tone and content of the military judge’s questions, especially when contrasted with the neutral questions he asked the victim and the other Government witnesses, would have led a “reasonable man . . . who has knowledge of all the facts” to believe that the military judge was biased against the appellant in this case. Wright, 52 M.J. at 136.

Slip op. at 7. The court finds the error to be neither structural nor harmless. “Accordingly, we find that it was a clear abuse of his discretion to deny the appellant’s motion for a mistrial and a further abuse of his discretion to deny the appellant’s subsequent motion for recusal.” Slip op. at 8.

The CCA set-aside the findings of guilty of the Article 120 offenses, affirmed the conviction of the orders violation that the Appelant pleaded guilty to, and authorized a rehearing.

ACCA has been on a publishing frenzy.  It has now posted its third published opinion of the month.  And that’s on top of four published opinions in December.  For comparison purposes, the Air Force Court issued only three published opinions all last year.

Here’s a link to the latest published ACCA opinion, United States v. Mead, __ M.J. __, No. ARMY 20110717 (A. Ct. Crim. App. Feb, 25, 2013), which concerns computing equivalent punishments for Pierce credit purposes.

In this post, we noted the Army CCA’s recent published opinion United States v. Arias, __ M.J. __, No. ARMY 20100973 (A. Ct. Crim. App. Feb. 12, 2013). This opinion addresses post-trial delay of about 300 days between the completion of the Appellant’s trial by general court-martial (where he was convicted pursuant to his pleas of possession and distribution of child pornography, and sentenced to confinement for 30 months, reduction to E-1, total forfeitures, and a bad-conduct discharge) and docketing of his case at the ACCA.

During the post-trial processing, the appellant’s defense counsel submitted matters that included a complaint of “untimely post-trial processing and service of the record of trial and staff judge advocate’s recommendation.” Slip op. at 3. But in an addendum to his SJAR, the Staff Judge Advocate wrote, “Counsel for the accused does not allege any legal error.” Slip op. at 4.

The CCA finds that this was error. “At issue in appellant’s case is whether an allegation of dilatory post-trial processing implicating Moreno and Barker amounts to an allegation of legal error requiring, at a minimum: (1) agreement or disagreement by the SJA, and (2) a statement on whether corrective action is required. We hold that it does.” Slip op. at 5. Moreover, considering this error under the factors set-forth in Barker v. Wingo, 407 U.S. 514 (1972), the CCA notes:

The third Barker factor, “assertion of the right to timely review and appeal,” also favors appellant, as his post-trial submission complaining about post-trial processing is sufficient to constitute a demand for timely review. United States v. Ney, 68 M.J. 613, 617 (Army Ct.Crim. App. 2010).

Slip op. at 7. This assertion occurred in a submission made on day 241, well-after the 120-day period established by United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006). That this isn’t a bar to calling this a Barker demand is a notable reminder for trial-stage practitioners that under the Barker factors, the existence of a speedy-trial demand is an appellate consideration.

But the CCA finds no prejudice, and actually finds some benefit:

While appellant speculates regarding a missed opportunity for parole, the government properly points out that appellant actually benefited, at least monetarily, by the processing of his case. Since the convening authority granted appellant’s request to defer forfeitures, every day of post-trial processing prior to action resulted in additional money paid to appellant.

Slip op. at 8. The court affirmed the findings and sentence.

Here’s an interesting ruling from AFCCA on an Article 62 appeal.  United States v. Evenson, Misc. Dkt. No. 2012-12 (A.F. Ct. Crim. App. Feb. 27, 2013).  The case arises from the court-martial of an Air Force Academy cadet on charges including Article 120.  The military judge found at trial that restrictions had been imposed on cadets’ attendance during the portion of the Article 32 at which an alleged victim testified.  He found that this constituted an improper partial closure of the Article 32 hearing.  As a remedy, he dismissed the charges for a new Article 32.  The government filed an Article 62 appeal.

AFCCA today affirmed.  The court agreed with the military judge that restricting access by cadets resulted in a partial closure of the Article 32 hearing.  AFCCA ruled:

We find that the commander who ordered the investigation, by and through his SJA as executing agent, restricted access to the hearing, in violation of the requirements of R.C.M. 405(h)(3). Indeed, the SJA testified that no legal basis existed to do so, but he nevertheless executed the orders of his commander. We could “infer and glean from the record [of] findings” why there was restricted access by specific spectators at the hearing; however, “[w]e decline to engage in post hoc reconstruction of facts and findings,” when the IO or commander who directed the investigation is required to do such analysis and the IO is “required to place [the] analysis [in the IO’s report] to demonstrate that this balancing occurred.” See Ortiz, 66 M.J. at 342. Under the circumstances, the appellee’s right to a public Article 32, UCMJ, hearing was violated.