CAAFlog » Courts of Criminal Appeals » CCA Opinions

In a per curiam opinion in United States v. Freeberg, No. 201400172 (N-M. Ct. Crim. App. Sep. 30, 2014) (link to unpub. op.), a three-judge panel of the NMCCA reverses a plea of guilty to adultery in violation of Article 134, with this important reminder:

In 2002, the President issued Executive Order 13,262, 67 F.R. 18773, 18778 (2002), amending the MCM to create a separate explanation of the terminal element unique to adultery offenses. See United States v. Jonsson, 67 M.J. 624 (C.G.C.C.A. 2009). Since then, the MCM provides, “To constitute an offense under the UCMJ, the adulterous conduct must either be directly prejudicial to good order and discipline or service discrediting. Adulterous conduct that is directly prejudicial to good order and discipline includes conduct that has an obvious, and measurably divisive effect on unit or organization discipline, morale, or cohesion, or is clearly detrimental to the authority or stature of or respect toward a servicemember.” MCM (2012 ed.), Part IV, ¶ 62c(2). “Discredit means to injure the reputation of the armed forces and includes adulterous conduct that has a tendency, because of its open or notorious nature, to bring the service into disrepute, make it subject to public ridicule, or lower it in public esteem.” Id. The explanation then goes on to provide a non-exhaustive list of factors to consider when determining whether adulterous acts are prejudicial to good order and discipline or service discrediting.

This new explanation operated to narrow the scope of adultery as an offense under the UCMJ.

Slip op. at 5. The CCA reversed the plea after finding that military judge failed “to ensure the appellant understood the meaning of prejudice to good order and discipline and conduct of a nature to bring discredit upon the armed forces not only in a generic Article 134 sense, but in the narrower sense defined by the President specifically for the offense of adultery.” Slip op. at 6 (marks omitted).

The Coast Guard CCA’s unpublished opinion in United States v. Sullivan, No. 20140925 (C.G. Ct. Crim. App. Sep. 25, 2014) (link to unpub. op), is notable for a number of reasons. For starters, the case involves a Coast Guard Captain (O-6) who was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of a single specification of wrongful use of cocaine in violation of Article 112a. He was sentenced to pay a $5,000 fine and to be reprimanded. That sentence does not trigger automatic review by the CCA, but the Judge Advocate General of the Coast Guard referred the case to the court under Article 69(d).

The CCA considered numerous assertions of error, ultimately rejecting them and affirming the findings and sentence. One assertion of error – involving the rebuttal testimony of a Government witness – caught my attention.

The charge against the appellant was based on a positive urinalysis result. The appellant’s defense was based on the assertion that his wife’s drug use resulted in the appellant’s “innocent and unwitting exposure to cocaine.” Slip op. at  12. In support of this assertion, the appellant’s wife “testified during the defense case concerning her procurement, storage and consumption of cocaine.” Slip op. at 12. But in the Government’s case in rebuttal:

Inspector D, a Senior Inspector for the Contra Costa County District Attorney’s Office, was offered and qualified as an expert in street-level narcotics. (R. at 1957.) He testified, based on his experience as an undercover investigator, concerning the standard process for purchasing powder cocaine, and typical practices for using powder cocaine. (R. at 1959-69.) His descriptions differed in several ways from Appellant’s wife’s descriptions of her experience and practices.

Slip op. at 11. The Defense objected to the expert’s testimony. The CCA explains that “the military judge conducted a lengthy Article 39(a) session—which included a full preview of Inspector D’s testimony—and heard extensive argument from counsel before determining that Inspector D had specialized knowledge that would be helpful to members charged with determining the facts of the case,” but it does not otherwise describe the judge’s reasoning in permitting the testimony. Slip op. at 12.

What immediately comes to mind is last term’s decision in United States v. Flesher, 73 M.J. 303 (C.A.A.F. Jul 8, 2014) (CAAFlog case page), where a divided CAAF reversed a conviction for aggravated sexual assault after determining that the judge failed to conduct the appropriate analysis prior to allowing a former sexual assault response coordinator to testify as an expert witness, and that the record ultimately did not support allowing such testimony. In particular, Judge Ohlson’s opinion of the court focused on the six-part test from United States v. Houser:

(1) the qualifications of the expert, (2) the subject matter of the expert testimony, (3) the basis for the expert testimony, (4) the legal relevance of the evidence, (5) the reliability of the evidence, and (6) whether the probative value of the testimony outweighs other considerations.

Flesher, slip op. at 14 n.3 (citing Houser, 36 M.J. 392, 397 (C.M.A. 1993)). In Sullivan, the Coast Guard court doesn’t explain what – if any – analysis the judge conducted using these factors, and it seems like the testimony is unlikely to satisfy at least some of these factors. Instead, the CCA’s opinion focuses on value of the testimony for impeachment of the appellant’s wife.

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In United States v. Petee, No. 20130128 (A. Ct. Crim. App. Sep. 24, 2014) (link to unpub. op.), a three-judge panel of the Army CCA rejects the appellant’s guilty plea to assault consummated by a battery in violation of Article 128. The charge was “based on the fact that [the appellant] injected dilaudid [a Schedule II controlled substance with the generic name of hydromorphone] into the arm of a minor who asked him to do it.” Slip op. at 2. But the plea was based on an odd premise:

During the providence inquiry, the military judge premised appellant’s guilty plea on the notion that “a person may not lawfully consent to having something done to them that is unlawful” and that “a person cannot lawfully consent to an unlawful touching.”

Slip op. at 2. The CCA rejects this premise:

The parties do not offer, and we do not find, any authority to embrace such a broad diminution of the consent defense to simple battery. We recognize the possibility that one might providently plead guilty to a charge of simple battery under these circumstances. However the legal premise of such a plea would be based on the notion that such activity is sufficiently offensive to public order as to permit liability under Article 128. See generally United States v. Bygrave, 46 M.J. 491 (C.A.A.F. 1997); United States v. Arab, 55 M.J. 508 (Army Ct. Crim. App. 2001). An accused might admit that the act of injecting a potentially injurious illegal drug into the arm of a drunken minor is sufficiently offensive to the public generally as to permit conviction under Article 128. However, neither that legal premise, nor reference to those facts as the basis for criminal liability in that context, was discussed with appellant. Therefore, we hold that appellant’s plea to this offense is insufficiently intelligent to warrant its acceptance. See United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008).

Slip op. at 2.

Last term, in United States v. Cimball Sharpton, 73 M.J. 299 (C.A.A.F. June 13, 2014) (CAAFlog case page), CAAF explained that “the victim of the larceny is the person or entity suffering the financial loss or deprived of the use or benefit of the property at issue.” 73 M.J. at 301.

In a published opinion issued last week in United States v. Endsley, __ M.J. __, No. 20130052 (A. Ct. Crim. App. Oct. 17, 2014) (link to slip op.), the Army CCA applies CAAF’s decision in Cimball Sharpton to affirm the appellant’s pleas of guilty to larceny from a fellow soldier based upon the appellant’s unauthorized use of that other soldier’s debit card.

The CCA highlights the debit nature of the transaction, distinguishing “credit card transactions, [where] an item is obtained via a loan or line of credit offered by the card issuer to the cardholder,” from “a debit card [where one] obtains those goods in exchange for money which results in an immediate deduction from the cardholder’s account.” Slip op. at 4. However, the CCA acknowledges that last term CAAF summarily reversed a similar determination in United States v. Gaskill, No. 20110028 (A. Ct. Crim. App. Aug. 12, 2013) (link to slip op.), rev’d in part, 73 M.J. 207 (C.A.A.F. Jan. 27, 2014). The CCA notes “difficulty reconciling Gaskill with Lubasky or Cimball Sharpton.” Slip op. at 4. Yet the CCA doesn’t acknowledge the distinguishing factor of an agency relationship that allowed CAAF to affirm larceny convictions in Lubasky and Cimball Sharpton while rejecting the larceny conviction in Gaskill. Rather, the CCA affirms in Endsley on the basis that the other soldier’s “money was stolen and those stolen funds were used by appellant to obtain goods.” Slip op. at 5.

But I don’t think the facts of Endsley are so clear-cut, and I think the CCA got it wrong. The other soldier was not the victim of the appellant’s larceny.

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In a published opinion in United States v. Parker, __ M.J. __, No. 38384 (A.F. Ct. Crim. App. Oct. 15, 2014) (link to slip op.), a three-judge panel of the Air Force CCA rejects the appellant’s multiplicity and sentence appropriateness claims arising from his general court-martial conviction, pursuant to his pleas of guilty before a military judge sitting alone, of rape of a child, aggravated sexual contact with a child, aggravated sexual abuse of a child, two specifications of indecent liberties with a child, two specifications of sodomy with a child, and two specifications of possession of child pornography, in violation of Articles 120, 125, and 134, for which he was sentenced to confinement for life, reduction to E-1, and a dishonorable discharge. Slip op. at 1-2.

The appellant’s offenses were discovered while he was deployed to Qatar and his daughters revealed that he had sexually abused them. But when the appellant’s service data was admitted during the sentencing phase of the court-martial, and then a data sheet was provided to the convening authority by the staff judge advocate during the post-trial processing of the case), the appellant’s overseas service was omitted:

The personal data sheet the Government introduced at trial listed no combat or overseas service by the appellant. The appellant did not object to admission of this document. The staff judge advocate (SJA) attached a similar data sheet with his recommendation, again omitting any mention of combat or overseas service by the appellant. The clemency submissions by the appellant and his defense counsel did not allege any error in the SJA’s characterization of the appellant’s service. Nevertheless, the personal data sheet is plainly erroneous because the appellant was deployed to Qatar at the time his crimes were discovered. In addition, his enlisted performance report for the period ending 7 August 2011 references an earlier 180-day deployment the appellant completed at Al Dhafra Air Base in the United Arab Emirates.

Slip op. at 7. This is a pretty glaring error. However, the CCA finds no material prejudice to the appellant. It then scolds the responsible parties (who remain anonymous), writing:

The Government would be well-advised to find no solace in our resolution of this obvious error. The Government’s neglectful post-trial processing in a significant case involving confinement for life created an issue where none should have existed. Under different facts, it might well have led to an order for new post-trial processing or even sentencing relief by this court. We take this opportunity in this published opinion to remind staff judge advocates of a point we have pressed before:

We caution SJAs to take no comfort from this holding. Because the threshold for showing prejudice is so low, it is the rare case where substantial errors in the SJAR, or post-trial process in general, do not require return of the case for further processing. . . . For that reason alone, it behooves SJAs to pay attention to what they are sending to a convening authority and take the time to get it right the first time. More importantly, however, the integrity of our military justice system demands careful attention in each and every case. While any given court-martial may seem routine to a legal office with a busy docket, rest assured it is not routine to the accused. With rare exception, it will be the single most important event in that military member’s life. Nor is it routine to the members of the accused’s unit, or to the friends, family members, or victims watching carefully to see that justice is served. Slip-shod treatment of the court-martial process, whether at the pre-trial, trial, or post-trial stage, cannot help but undermine faith in the system itself, making it less effective overall as a tool for maintaining military discipline. If a military member’s offenses are deemed serious enough to warrant court-martial, they are serious enough to demand the time needed to carefully and correctly shepherd each aspect of the case to conclusion. . . . Unfortunately, that did not happen here.

United States v. Lavoie, ACM S31453 (recon), unpub. op. at 4 (A.F. Ct. Crim. App. 21 January 2009).

Readers may recall similar criticisms from the Army CCA about a year ago. I discussed those in a post titled: The Army CCA sees “nagging difficulties” and “system failures”

Last week the NMCCA posted an unpublished en banc decision in United States v. Spurling, No. 201400124 (N-M. Ct. Crim. App. Oct. 16, 2014) (link to slip op.). The decision involves a claim of ineffective assistance of counsel based on the failure of the trial defense team (consisting of two Marine lawyers) to seek suppression of pretrial statements made by the appellant, who was questioned by higher-ranking service members without any Article 31(b) rights advisory. The case is particularly interesting because the CCA:

ordered affidavits from both TDC [trial defense counsel], wherein 1stLt B candidly concedes that she failed to “recognize the issue based on [her] lack of experience, the work load at the time, and never having argued an Article 31 issue” and that she “should have filed a motion to suppress.” Capt B concurs, stating that had the issue occurred to him “[he] would have proposed filing it.” Both TDC acknowledge that it was not until after participating in a post-trial debrief with the military judge, who asked whether they had filed a suppression motion, that they recognized the issue.

Slip op. at 5-6 (second modification in original). But despite the admissions of the two defense counsel, the CCA finds no error because it concludes that the questioning of Appellant was not conducted in an official law enforcement or disciplinary capacity and so there is no reasonable probability that a motion to suppress would have succeeded. However, this decision splits the panel, with three of the eight judges dissenting. The dissent finds deficient performance and would reverse, and it disagrees with the standard of review applied by the majority.

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In a published opinion in United States v. Heyward, No. 20120469, __ M.J. __ (A. Ct. Crim. App. Sep. 24, 2014) (link to slip op.), a three-judge panel of the Army CCA applies Army Regulation 27-10 to conclude that allied papers separate from DA Form 2627 (“Record of Proceedings Under Article 15, UCMJ”) and DA Form 2627-2 (“Record of Supplementary Action under Article 15, UCMJ”) must have an independent basis for admission during the sentencing phase of a court-martial.

Writing for the panel, Senior Judge Lind explains that Army Regulation 27-10:

authorize[s] admission of records of Article 15 (as recorded on DA Forms 2627 or 2627-2) that are “not otherwise inadmissible” as personnel records in accordance with R.C.M. 1001(b)(2) and require that the Article 15 (as recorded on DA Forms 2627 or 2627-2) and the allied papers be considered to be filed separately when determining the admissibility of the Article 15 forms.

Army Regulation 27-10 does not contain a rule of completeness authorizing admission of allied papers along with the record of punishment under Article 15. Allied papers, which may contain all sorts of inadmissible hearsay and extraneous material, may themselves be admissible in whole or in part separately from the Article 15 as recorded on DA Forms 2627 or 2627-2. However, the allied papers must have an independent basis for admission and pass the Mil. R. Evid. 403 balancing test.

Slip op. at 5-6. The allied documents at issue were the contents of the “Article 15 package” that included:

a two-page military police desk blotter entry and seven pages of sworn statements regarding the assault consummated by a battery against appellant’s spouse, as well as a sixty-page Commander’s Inquiry regarding appellant’s alteration of his [noncommissioned officer evaluation report], to include all of the enclosures to that administrative investigation.

Slip op. at 2. The military judge admitted the records over Defense objection. The CCA finds this to be harmless error.

Back in June, in this post, Mike noted a media report about the dismissal of sexual assault charges in an Air Force general court-martial. At the time it appeared that the charges were dismissed due to prosecutorial incompetence, but precise details were slim. Then, in this September TWIMJ post, I noted a scheduled oral argument at the AFCCA for an an Article 62 appeal in the case.

Update (Oct. 8): A commenter noted that today the CCA posted the audio of the oral argument. It’s available here.

Last week the CCA issued its ruling in a published opinion. United States v. Bowser, __ M.J. __, Misc. Dkt. No. 2014-08 (A.F. Ct. Crim. App. Oct 3, 2014) (link to slip op.). The court denies the Government’s appeal and affirms the judge’s ruling that dismissed – with prejudice – the charges of rape, forcible sodomy, and assault.

The CCA’s opinion provides lots of facts, revealing that the military judge found that the trial counsel committed prosecutorial misconduct by refusing to obey an order for an in camera review of the prosecution team’s witness interview notes. Moreover, the military judge concluded that dismissal was more appropriate than delay because the Government needed delay to continue its trial preparation, and the judge found that delay would “reward the party with unclean hands with that which it desperately needs.” Slip op. at 7.

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The instructions given to the panel members are one of the most important, but frequently neglected (at least from my own observation), parts of a court-martial. A recent case from the AFCCA, challenging a conviction for carrying a concealed weapon, illustrates the importance of thinking about instructions early and planning objections to them. In United States v. Hooper, No. 38307 (Af. Ct. Crim. App. 24 Sept. 2014), the appellant was convicted of, among other things, violation of Article 134, UCMJ for carrying a concealed weapon in his POV from his off-base residence to base housing on board Luke Air Force Base, Arizona.

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The fallout from a controversial lecture to junior attorneys by Marine Corps Lieutenant Colonel Robert G. Palmer – then a sitting military judge – in the summer of 2012 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. Those cases include United States v. Bremer, 72 M.J. 624 (N-M. Ct. Crim. App. 2013 (discussed here), in which the CCA reversed the sentence, United States v. Kish, No. 201100404 (N-M. Ct. Crim. App. Jun. 17, 2014) (unpub. op.) (Kish III) (discussed here), in which the CCA reversed the findings, and United States v. Bailey, No. 201200370 (N-M. Ct. Crim. App. Sep. 16, 2014) (unpub. op.) (discussed here), in which the CCA granted no relief.

The NMCCA recently addressed another such case, United States v. Sanders, No. 201200202 (N-M. Ct. Crim. App. Sep. 30, 2014) (link to unpub. op.). The appellant was convicted by a special court-martial composed of the military judge alone, pursuant to his pleas of guilty, of knowingly using an interactive computer service for carriage in interstate commerce of obscene, lewd, lascivious, and filthy matter, in violation of 18 U.S.C. § 1462, incorporated under Clause 3 of Article 134. He was sentenced to the jurisdictional maximum punishments of confinement for twelve months, reduction E-1, and a bad-conduct discharge.

The lecture that sparked the controversy occurred three months after the guilty plea in Sanders, but the NMCCA finds the appearance of bias in “the military judge’s imposition of the most severe sentence possible in this case,” slip op. at 7. The court reverses the sentence and remands for a sentence rehearing.

The court identifies four reasons for its action:

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On Tuesday a three-judge panel of the NMCCA issued an unpublished opinion in United States v. Tienter, No. 201400205 (N-M. Ct. Crim. App. Sep. 23, 2014) (link to unpub. op.), rejecting a Government interlocutory appeal of a military judge’s ruling that suppressed text messages discovered on Appellee’s mobile phone. Senior Judge Ward wrote for the panel.

Appellee is a junior enlisted Marine charged with violations of Article 120 for an alleged sexual encounter in 2011 with someone who was substantially incapacitated due to alcohol intoxication. The charges were referred to trial by general court-martial in September 2013. The next month, Appellee underwent surgery and was prescribed painkillers. A fellow Marine sent Appellee text messages asking if Appellee would share those painkillers, and Appellee reported this request to his superiors. Appellee also provided “a transcript of some of these text messages to members of his command, who in turn referred the matter to law enforcement.” Slip op. at 2.

Law enforcement sought and obtained a search authorization for Appellee’s mobile phone. Specifically,

Special Agent (SA) Isaac Perez of the Criminal Investigation Division (CID) sought authorization from the Commanding Officer, MCAS Miramar, to search the appellee’s cell phone and seize electronic messages pertaining to the use and/or possession of prescription medication. In his supporting affidavit, SA Perez stated that after seizing the data from the appellee’s cell phone, CID agents would search the data using “search protocols directed exclusively to the identification and extraction of data within the scope of this warrant.” SA Perez further stated that this analysis would be completed within 90 days.

Slip op. at 2-3. Its unclear what “search protocols” means, but “after seizing the appellee’s cell phone, SA Perez attached it to a Cellebrite Universal Forensic Extraction Device (UFED), which in turn made a complete digital copy of all data in the cell phone.” Slip op. at 3. SA Perez then “created a single Portable Document Format (PDF) file containing all text messages retrievable on the cell phone.” Id. (the extraction report is 2,117 pages of material from the phone. Slip op. at 7 n.29.). SA Perez conducted a keyword search and identified text messages related to the prescription drug issue. He also observed “one text wherein the appellee admitted to adultery.” Slip op. at 7. He then drafted an investigative report documenting these efforts.

But then a trial counsel started looking through the extraction report:

Several months later, the senior trial counsel at MCAS Miramar notified SA Perez that she had located a text message in the extraction file pertaining to the sexual assault offenses then pending trial. She asked SA Perez to go back and search the same extraction file for any additional text messages that may relate to the appellee’s pending sexual assault charges.

SA Perez, with the assistance of SA Stemen of the Naval Criminal Investigative Service (NCIS) and using search terms specific to the sexual assault allegations, discovered several additional text messages which formed the basis of the defense motion to suppress. Even though more than 90 days elapsed since the search authorization had been granted, SA Perez did not seek an additional search authorization.

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In a published opinion in United States v. Escobar, __ M.J. __, No. 38343 (A.F. Ct. Crim. App. Sep. 16, 2014) (link to slip op.), the Air Force Court of Criminal Appeals holds that the provisions of Article 12 (prohibiting confinement in immediate association with enemy prisoners or other foreign nationals not members of the armed forces) and the provisions of Article 13 (prohibiting punishment before trial and conditions of arrest or pretrial confinement that are more rigorous than necessary) do not apply to situations where a foreign sovereign confines an American service member for violations of that other sovereign’s laws.

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Last Thursday a three-judge panel of the NMCCA issued an unpublished opinion in United States v. Nichols, No. 201300321 (N-M. Ct. Crim. App. Sep. 18, 2014) (link to unpub. op.), reversing a conviction for possession of child pornography after finding that the evidence is legally insufficient to prove that the appellant possessed the three images of child pornography on the date charged.

The opinion – authored by Judge Jamison – is lengthy and includes a lot of facts, but the following sentences provide a good preview:

There is no question that the appellant possessed child pornography; the question is whether the appellant “knowingly possessed” child pornography on the charged date. Having concluded that the Government presented a circumstantially strong case that at some point in time while the appellant owned his laptop, he had received, downloaded, viewed, and knowingly possessed child pornography, we turn next to the Government charging decision. Although the Government’s case as to knowing possession may have been circumstantially strong, the decision to charge “on or about 16 May 2011” became the Government’s evidentiary Achilles heel.

Slip op. at 15 (emphasis in original). Citing CAAF’s decision in United States v. Navrestad, 66 M.J. 262, 267 (C.A.A.F. 2008), the CCA focuses on the fact that the three images at issue were in unallocated space on the appellant’s computer (meaning that they were deleted files), and explains that:

In this case, the Government presented no evidence that the appellant had the required forensic tools to retrieve digital files from the unallocated space of his computer. In fact, Ms. SH testified that once a digital file is in unallocated space, a user does not have the ability to access that digital file. Record at 1449. Because the appellant was unable to access any of the video files in unallocated space, he lacked the ability to exercise “dominion or control” over these files.

Slip op. at 17. The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of two specifications of knowingly possessing child pornography in violation of Article 134. He was sentenced to confinement for six months, reduction to E-1, and bad-conduct discharge. The CCA’s finding affects only one of the specifications (the images at issue in the other specification were not in unallocated space).

The affected specification charged the appellant with possessing the images on or about 16 May 2011, but “following extensive deliberation, the members convicted the appellant of knowing possession of the three video files except for the words ’16 May 2011′ and substituting the words ‘3 March 2011.'” Slip op. at 12. The military judge instructed the members that they could change the charged date by up to 150 days when making their findings. Id. n.7. Notably, the judge did not permit a change of approximately two years, slip op. at 18, to a date when the file sharing program LimeWire was used with search terms that were “highly indicative of child pornography,” slip op. at 14.

Judge Jamison’s opinion openly speculates about how the members reached the March 3, 2011, date in their findings:

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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).