CAAFlog » Courts of Criminal Appeals » CCA Opinions

Last term, in the companion cases of United States v. McPherson, 73 M.J. 393 (C.A.A.F. Aug. 21, 2014) (CAAFlog case page), and United States v. Wilson, 73 M.J. 404 (C.A.A.F. Aug. 21, 2014) (CAAFlog case page), CAAF held that the Article 12 prohibition against confining service members in immediate association with non-service member aliens applies when a service member is confined in a civilian facility within the United States. CAAF also held that a service member must exhaust all administrative remedies prior to seeking judicial relief for a violation of that prohibition. CAAF then denied relief in both cases, holding in McPherson that the appellant failed to exhaust his administrative remedies, and finding no violation of Article 12 in Wilson because the appellant was confined alone.

Notably, both cases were certified to CAAF by the Judge Advocate General of the Air Force in order to define the reach of Article 12 (in part because of the Air Force relies heavily on civilian confinement facilities). And a curious twist to Wilson was that the appellant never asserted a violation of Article 12. Rather, he asserted that he was subjected to cruel and unusual punishment, in violation of Article 55, UCMJ, and the Eighth Amendment, because he was segregated from other inmates while confined in a civilian facility (presumably to avoid any Article 12 issue).

The Air Force CCA rejected Wilson’s claims for relief (twice). But now that CCA revisits the issue raised in Wilson. In United States v. Gay, __ M.J. __, No. 38525 (A.F. Ct. Crim. App. Jun. 12, 2015) (link to slip op.), the AFCCA holds that the appellant’s confinement in solitary confinement (where he was alone 23 hours per day, and suffered other administrative hardships) in a civilian facility, imposed after he complained of an Article 12 violation, was not cruel and unusual punishment, but is deserving of relief under the CCA’s Article 66(c) sentence-appropriateness power.

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In an unpublished in United States v. Lefevers, No. 201400312 (N-M. Ct. Crim. App. Jun. 18, 2015) (link to slip op.), a panel of the NMCCA splits 2-1 to affirm the sentence of confinement for 30 months and a bad-conduct discharge, adjudged at a general court-martial after the appellant pleaded guilty to making a false official statement, aggravated assault, and child endangerment, in violation of Articles 107, 128, and 134.

The appellant’s misconduct primarily involved this gruesome incident:

On the morning of 21 January 2013, the appellant was caring for his two-year-old step-daughter CW while his wife, CW’s mother, went to work. To help him sleep, the appellant had taken Benadryl the night before and was still asleep when his wife left for work between 0400 and 0500 that morning. What happened next is detailed best in the appellant’s stipulation of fact:

I was awoken by [CW], my step-daughter. I was so angry that I grabbed [CW] by the hair and threw her down the stairs and she hit the wall . . . head first and I heard a thud as her cheek and side of her head hit the wall. I remember standing with a lump of [CW’s] hair in my right hand. I flushed the hair down the toilet in the upstairs bathroom because I didn’t want to look at it. [CW] was crying really loud. I could tell that she was scared and in pain. I then went down the stairs and grabbed her by one arm . . . and carried her back up the stairs and into the master bedroom and laid her on the bed for several minutes. [CW] continued to cry for what seemed like 10-15 minutes, and I was walking around the bedroom trying to calm down. I knew she was hurt and should get medical attention, but I was worried that I would get into trouble for hurting her.

The appellant then called his wife and attempted to console CW while waiting for his wife to return home. When his wife returned home, he told her that CW had accidentally fallen down the stairs.

The appellant and his wife then took CW to the hospital. . .

Slip op. at 3. The facts that split the CCA involve the injuries that the appellant duffered during two combat deployments:

The appellant enlisted in the Marine Corps in 2007 at the age of 19. His first deployment to Afghanistan came in September 2010 and lasted until April 2011, where he served as a machine gunner. During this deployment the appellant engaged in “hundreds” of firefights with the enemy.

After this deployment, the appellant began exhibiting symptoms of post-traumatic stress disorder (PTSD). The appellant nonetheless deployed to Afghanistan for a second time from 24 February 2012 until 9 September 2012, during which the appellant’s unit was required to medically evacuate countless wounded civilian Afghan children who fell victim to improvised explosive devices. Moreover, the appellant’s unit engaged in several firefights, including a six-hour battle with the Taliban, where the appellant displayed exceptional courage, skill, and leadership.

After returning from this deployment in September 2012, the appellant’s PTSD symptoms worsened, resulting in his chain of command cancelling his orders for a third deployment to Afghanistan so that they could “keep an eye on him.”

Slip op. at 2. The incident with the appellant’s stepdaughter occurred approximately four months after the appellant returned from the second deployment.

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In two recent decisions the Army and Air Force CCAs analyzed the military-specific rule of completeness, Military Rule of Evidence 304(h). I last analyzed this rule in this post.

In United States v. Jnbaptiste, No. 20121113 (A. Ct. Crim. App. Apr. 14, 2015) (link to slip op.), the Army CCA finds no error in the military judge’s restriction of the defense cross-examination of the appellant’s wife. The restriction prevented the defense from eliciting the appellant’s denial when his wife questioned him about their daughter’s allegation of sexual abuse. The appellant was convicted of sexually abusing the daughter.

In United States v. Rosales, __ M.J. __, No. 38502 (A.F. Ct. Crim. App. Jun. 17, 2015) (link to slip op.), the Air Force CCA finds error but no prejudice in the military judge’s application of M.R.E. 412 (the rape shield rule) to prevent the defense from introducing portions of the appellant’s statements to investigators regarding his knowledge of his wife’s extra marital sexual activities. However, the appellant was permitted to cross-examine his wife about those same activities. The appellant was convicted of assaulting and attempting to rape his wife.

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The Air Force CCA reached two interesting conclusions in United States v. Bischoff, __ M.J. __, No. 37731 (A.F. Ct. Crim. App. Feb. 19, 2015) (link to slip op.). The first involves an issue of member bias; the second involves a question of prejudice for post-trial delay where the appellant’s sentence included a year of confinement, the appellant served all of the confinement, the CCA ordered a sentence rehearing, and then appellant received a sentence that included no confinement.

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In a published decision in United States v. Barnes, __ M.J. __, No. 20120308 (A. Ct. Crim. App. May 8, 2015) (link to slip op.), a three-judge panel of the Army CCA addresses the appropriateness of a M.R.E. 413 instruction to the members that allowed them to use the two charged offenses of rape (one in 2006, the other in 2009, and each involving a separate alleged victim) as propensity evidence to prove that the appellant committed those same rapes.

Specifically, the military judge instructed the members that:

Evidence that the accused committed the sexual assault alleged in each specification and charge may have no bearing on your deliberations in relation to the other specifications and charge, unless you first determine, by a preponderance of the evidence that it is more likely than not the offense alleged in one of these specifications occurred. For example, if you determine by a preponderance of the evidence, the offense alleged in one of the specifications occurred, even if you were not convinced beyond a reasonable doubt that the accused is guilty of that offense, you may nonetheless then consider the evidence of that offense for its bearing on any matter to which it is relevant in relation to the other charge.

Slip op. at 4-5. Then, in closing arguments, the trial (Government) counsel argued:

[L]ighting does strike twice and the accused is proof positive of it. . . . The accused struck again in 2009. It even started out in the same place, Fort Huachuca, Arizona, the accused is TDY. He had gotten away with it the first time. No charges have been pressed yet. So he thought, “hey this is a pretty good gig. I can go have sex whenever I want. Take it from an unsuspecting woman. They didn’t catch me three years ago.”

Slip op. at 5 (quoting record). And in rebuttal argument, the trial counsel elaborated:

I ask that you pay careful attention to all of the instructions in their entirety, not just certain portions of them, and know that the accused’s propensity to commit these offenses can be evaluated if you find he has at least committed the offense by [a] preponderance of the evidence standard. . . . The defense would like you to believe that the rape in 2009 and the rape in 2006 were so different, but yet, they are so similar. Each time the accused took what he wanted, when he wanted, without the consent of the other parties, of the victim. Each time. They are actually very similar.

Slip op. at 6 (quoting record) (marks in original). The appellant was convicted of both rapes and sentenced to confinement for 15 years, total forfeitures, reduction to E-1, and a dishonorable discharge. The convening authority reduced the confinement to 14 years and 9 months, but otherwise approved the sentence.

The Army CCA considers this instruction, and specifically the fact that the military judge failed to apply the factors identified in United States v. Wright, 53 M.J. 476, 482 (C.A.A.F. 2000), including the test for relevance (M.R.E. 401) and for probative value (M.R.E. 403). In an opinion authored by Judge Tellitocci, the CCA affirms the findings and sentence.

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Back in 2013, in this post, I wrote about the Air Force case of United States v. Carr, No. 38025 (A.F. Ct. Crim. App. Aug 15, 2013), where the convening authority initially disapproved the adjudged bad-conduct discharge, but then the Air Force CCA went to considerable lengths to allow the convening authority to correct that action and approve the discharge.

Now the Coast Guard CCA addresses similar errors in a convening authority’s action that violated the terms of a pretrial agreement:

For a third time, the action suspends confinement in excess of ten months, even though the pretrial agreement called for disapproval of confinement in excess of ten months. Appellant has consistently pointed out this flaw, and the Convening Authority, with the advice of the Staff Judge Advocate, has persisted in this violation of the pretrial agreement. Inexplicable as this violation appears, we are confident that the suspension has not been vacated, else Appellant would have complained further. Though given repeated opportunities to conform the Convening Authority’s action to the terms negotiated, the Government has failed to do so. We do not condone the Government’s failure in this regard, but we are not inclined to remand again in the hope that the Government will at last give attention to and correct this obvious error. No action is needed beyond our disapproval of confinement in excess of ten months.

The approval of confinement beyond the limit set in the pretrial agreement is not the only flaw in the Convening Authority’s action. Again, for a third time, the action provides that automatic forfeitures will be deferred for six months. This provision bespeaks ignorance of the vocabulary of the UCMJ.

United States v. Matthews, No. 1382, slip op. at 3 (C.G. Ct. Crim. App. May 20, 2015) (emphases added) (link to slip op.).

This being the third time the CCA considered the case (the first was in a published opinion that I discussed here; the second resulted in a summary remand without written opinion, ostensibly to fix this error), the CCA simply gives up and fixes the problem itself:

Appellant now moves again for remand for a corrected convening authority action, and for leave to file this motion. The motion for leave to file is granted. The motion for remand is denied. We have the power under Article 66, UCMJ, to correct the flaw in the Convening Authority’s action without another remand.

Slip op. at 4. However, the CCA only conforms the sentence to the terms of the pretrial agreement. It grants no actual relief to the appellant, either for the Government’s “persiste[nce] in this violation of the pretrial agreement,” slip op. at 3, or for the one year, eleven months, and eight days between the date of the guilty plea and the completion of the CCA’s review.

In a published opinion in United States v. Fowler, __ M.J. __, No. 20121079 (A. Ct. Crim. App. Apr. 30, 2015) (link to slip op.), a three-judge panel of the Army CCA tackles a claim of a double jeopardy violation in a military judge’s premature announcement of findings.

Writing for the panel, Judge Krauss explains that:

Charged with desertion, appellant pled guilty to the lesser-included offense of absence without leave (AWOL) in violation of Article 86, UCMJ. The judge advised appellant that his “plea of guilty to a lesser included offense may also be used to establish certain elements of the charged offense if the government decides to proceed on the charged offense.” The judge did not ask and the trial counsel did not declare whether the government intended to proceed on the greater charge.

Upon acceptance of that plea, the judge announced findings: “To the Specification of The Charge: Guilty, except the words, ‘and with the intent to remain away therefrom permanently’ and ‘in desertion.’ Of the Charge: Not Guilty, but guilty of a violation of . . . Article 86.”

Slip op. at 2. The trial counsel then noted that the Government was still pursuing the greater offense of desertion in violation of Article 85, and it introduced evidence that proved that the appellant had the requisite intent for desertion. The military judge then convicted the appellant of desertion.

On appeal, the appellant claimed that this amounts to a violation of the prohibition against double jeopardy. Rejecting this challenge and affirming the conviction, Judge Krauss writes:

An announced finding of “not guilty” amounts to an acquittal if it effects a “ruling that the prosecution’s proof is insufficient to establish criminal liability for an offense.” Evans v. Michigan, 133 S. Ct. 1069, 1074-75 (2013). An acquittal is “a finding that the [government]’s evidence cannot support a conviction.” Martinez v. Illinois, 134 S. Ct. 2070, 2076 (2014).

Of course, the objective of a court -martial is a fair trial. Our adversarial system, by its very nature, requires that each party enjoy an opportunity to present its respective case to the factfinder. A military judge possesses no authority to prevent the United States from attempting to prove the charge it has otherwise properly referred to trial by court-martial by peremptorily announcing a finding of not guilty. [citations omitted -zds]

Any such declaration of not guilty is ineffective. This is true whether the judge makes such announcement on purpose or by mistake. See United States v. Downs, 4 U.S.C.M.A. 8, 11-12, 15 C.M.R. 8, 11-12 (1954); Greening, 54 M.J. at 832; see also United States v. Boswell, 8 U.S.C.M.A. 145, 149, 23 C.M.R. 369, 373 (1957) (when announcement of not guilty is a “slip of the tongue” it c an be corrected); R.C.M. 922(d); R.C.M. 1102(c)(2).

Here the military judge erroneously announced a finding of not guilty to the charged desertion before the government was given an opportunity to prove that charge. It appears that the judge, in the moment, did indeed intend to make that announcement; however, it is also quite plain from the record that the judge did not intend to prevent the government from proceeding. In any event, under circumstances such as these, it matters not whether the judge intended to announce a finding of not guilty. A finding of not guilty announced before the government enjoys a proper opportunity to prove its case does not constitute an acquittal. See Martinez, 134 S. Ct. at 2076-77.

Slip op. at 3-4.

The Courts of Criminal Appeals rarely invoke their factual sufficiency powers to reverse a conviction. Unlike legal sufficiency, which questions “whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt,” United States v. Dobson, 63 M.J. 1, 21 (C.A.A.F.2006) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis added), factual sufficiency review involves the CCA’s independent conclusion about the evidence. It is a unique power granted by Article 66(c):

[A CCA] may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved. In considering the record, it may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses.

The Air Force CCA recently exercised that unique power, in United States v. Wilkinson, No. 32218 (A.F. Ct. Crim. App. May 11, 2015) (link to slip op.):

It should go without saying that a court-martial is a most serious matter, and the requirement for proof beyond a reasonable doubt plays a vital role in the legitimacy of the military justice system. A “society that values the good name and freedom of every individual should not condemn a man for commission of a crime when there is reasonable doubt about his guilt.” In re Winshop, 397 U.S. 358, 363–64 (1970). In the military justice system, where servicemembers accused at court-martial are denied some rights provided to other citizens,2 our unique factfinding authority is a vital safeguard designed to ensure that every conviction is supported by proof beyond a reasonable doubt. This authority “provide[s] a source of structural integrity to ensure the protection of service members’ rights within a system of military discipline and justice where commanders themselves retain awesome and plenary authority.” United States v. Jenkins, 60 M.J. 27, 29 (C.A.A.F. 2004). Most cases reviewed by this court are deemed factually sufficient. However, in this instance, we simply are not personally convinced that the appellant is guilty of the charged offenses.

Slip op. at 3.

In United States v. Christopher, No. 201500066 (N-M. Ct. Crim. App. Apr. 21, 2015) (link to slip op.), writ-appeal filed, __ M.J. __ (C.A.A.F. May 8, 2015), the NMCCA denied the accused’s petition for a writ of mandamus that would order the charges dismissed on the basis that a court-martial does not have personal jurisdiction over the accused. The petitioner is on the Permanent Disability Retirement List (PDRL), and he is charged with offenses that allegedly occurred before his transfer.

The CCA’s analysis is brief:

In ruling on the defense’s Motion to Dismiss for Lack of Jurisdiction, the military judge assumed arguendo that the petitioner’s transfer to the PDRL was valid and, citing Article 2(a)(4), UCMJ, found that as a “[r]etired member[] of a regular component of the armed services who [is] entitled to pay,” he is subject to UCMJ jurisdiction. She is correct: Article 2(a)(4), UCMJ, confers in personam jurisdiction over retired members of a regular component of the armed forces who are entitled to pay. See also Pearson v. Bloss, 28 M.J. 376, 377-78 (C.M.A. 1989).

Slip op. at 5.

In an unpublished opinion in United States v. Edmond, No. 201200168 (N-M. Ct. Crim. App. Apr. 30 2015) (link to slip op.), a three-judge panel of the Navy-Marine Corps CCA reverses a midshipman’s 2011 court-martial convictions for making a false official statement, two specifications of rape, two specifications of aggravated sexual assault, and wrongful sexual contact, in violation of Articles 107 and 120 (press accounts here and here), after concluding that “the appellant was not afforded effective assistance of counsel as guaranteed by the Sixth Amendment.” Slip op. at 19.

Specifically, writing for a unanimous panel, Chief Judge Mitchell finds that:

In the appellant’s case, the evidence was not overwhelming. While there was some medical evidence of bruising supporting the alleged victim’s account of the sexual contact, this case ultimately boiled down to the issue of credibility. It was on this point that the trial defense team failed in several significant ways summarized as follows:

(1) The defense team failed to effectively cross-examine the alleged victim in that it had evidence of inconsistent statements made by XM during the Article 32 Investigation that differed significantly from her testimony at trial but had no mechanism in place to challenge her on cross-examination;

(2) While the trial defense team planted the seed in the minds of the members that the alleged victim told MIDN B yet another account of the sexual assault, they forgot to follow up with this line of questioning after calling her as a witness;

(3) The trial defense team’s attempt to bolster their client’s credibility had the opposite effect when they asked MIDN B if she thought the appellant was trustworthy and she responded in the negative; and

(4) Finally, while we do not second-guess the defense’s tactical decision to put the appellant on the stand, the record strongly suggests that they did so without fully considering or advising him of the ramifications of doing so, including opening the door to the use of his previously suppressed statement, which was replete with inconsistencies, as impeachment evidence.

Based on the foregoing, we have little difficulty concluding that the trial defense team’s level of advocacy fell “measurably below the performance [] (ordinarily expected) of fallible lawyers.” Polk 32 M.J. at 153 (citation omitted).

Slip op. at 17-18. The CCA authorizes a rehearing.

In a published decision in United States v. Chandler, __ M.J. __, No. 20120680 (A. Ct. Crim. App. Apr. 7, 2015) (link to slip op.), the Army CCA finds that a military judge improperly held a post-trial proceeding in revision for the purpose of giving corrected instructions to the members, and allowing them to deliberate anew, on the findings.

The judge improperly instructed the panel on the defense of mistake of fact as to the nature of property at issue in an alleged conspiracy to commit larceny, giving the general intent mistake instruction (requiring that the mistake be objectively reasonable) instead of the specific intent mistake instruction (requiring only that the mistake actually exist). The appellant was then convicted. But the judge realized the mistake when authenticating the record, and ordered a proceeding in revision under R.C.M. 1102, stating:

My proposal will be to reinstruct the members and direct them to once again deliberate on findings in light of the corrected instruction. I will also give counsel an opportunity to re-argue on findings in light of the corrected instruction. Obviously, if there are different findings, the members will also deliberate and vote on a new sentence, provided the accused is found guilty of any offense.

Slip op. at 7. The proceeding occurred, the members were properly instructed, and they again convicted the appellant. But the CCA finds that the post-trial proceeding was void ab initio:

We can think of no matters more substantive than the defenses potentially applicable to a servicemember facing court -martial. Instead of resolving an administrative matter, the post -trial proceeding here more closely resembled a rehearing, but with the same panel—which the judge had no authority to order. The military judge likely understood that his approach was somewhat akin to a rehearing, as he invoked the sentence limitations provisions of R.C.M. 810(d). The hearing could also be viewed as a flawed attempt at reconsideration of findings, for which R.C.M. 924 governs. Contrary to R.C.M. 924, the proceeding occurred after the panel unambiguously announced findings on 10 July 2012, and it occurred at the military judge’s direction instead of a panel member’s proposal.

We endorse initiative-taking by military judges. Such an approach is crucial in our justice system, which favors resolution of disputed issues at trial. We also understand the desire for quickly reaching a solution in the field, instead of waiting for a convening authority or an appellate court to order the same solution. However, our system’s range of post-trial remedies does not include remand to an original finder of fact in order to cure instructional error. This limitation is understandable, since one cannot reasonably expect panel members to set aside their original findings and deliberate anew. Put another way, as the post -trial proceeding began in this case, it was far more likely that the panel would simply validate its earlier findings of guilt; we cannot affirm such a process. Instead, we conclude the military judge erred in directing a proceeding in revision for the purposes of correcting erroneous instructions and directing the same panel to deliberate again. We regard this proceeding as void ab initio under the circumstances and need not address additional procedural peculiarities, including the military judge’s emailing a redacted record of trial to the panel and his denying the defense request to voir dire the panel.

Slip op. at 15-16. Nevertheless, the CCA finds the instructional error harmless.

In an unpublished opinion in United States v. Sabia, No. 20150225 (C.G. Ct. Crim. App. Feb. 25, 2015) (link to slip op.), the Coast Guard CCA contemplates the appropriateness of a sentence of confinement for 150 days, reduction to E-2, and a bad-conduct discharge for the offense of wrongfully communicating a threat, such conduct being to the prejudice of good order and discipline in the armed forces, in violation of Article 134. The convening authority disapproved the adjudged confinement. The opinion doesn’t provide the precise details of the specification, but it indicates that the appellant made some sort of threatening statement to military leaders at Port Angeles whom he did not know, had never met, could not identify, and didn’t threaten by name.

In an opinion written by Chief Judge McClelland, the CCA affirms the sentence as approved. But it seems to be a close call. In particular, a concurring opinion written by Judge Duignan notes that:

Appellant, who was having medical problems, found himself in an escalating chain of circumstances that ultimately led to his court-martial. Homeless, and living out of his car in the Pacific Northwest, Appellant needed help. The record indicates that his command knew of his situation, and might have done more to intervene. Appellant’s threats—although treated with appropriate seriousness by his command—were essentially a cry for help. No one at the command believed that Appellant truly wanted to harm his chain of command. Rather, the record indicates that Appellant was essentially disconnected from his command altogether.

Slip op. at 3.

In United States v. Saunders, No. 2014-15 (A.F. Ct. Crim. App. Apr. 17, 2015) (link to slip op.), the AFCCA grants a Government appeal of a military judge’s ruling that dismissed various charges, including sexual assault charges, against an Air Force Master Sergeant accused of improprieties involving his subordinates. The military judge:

concluded [that] the [accused] had met his burden of raising “some evidence” of apparent unlawful command influence in how the case was brought to trial. He found this burden was met by the following facts which, in his view, constituted “some evidence” of unlawful command influence:

(1) The [accused’s] commander held a meeting before trial where he stated that anyone who violated the UCMJ would be removed from the duty section, and then the [accused] was removed from the duty section; and

(2) The accused testified about statements made by the commander to the effect of, “How would I look to leadership if I did not push this issue?”

After shifting the burden to the government, the military judge stated in both rulings that he was “not convinced beyond a reasonable doubt that the comments upon which [he] based [his] determination (1) are not true, (2) do not constitute unlawful command influence, or (3) will not affect the proceedings.” He also stated:

In consideration of all the evidence considered on the matter, the inherent probability or improbability of the testimony, whether the testimony is supported or contradicted by other evidence in the case, and the credibility of the witnesses, this Court is not convinced beyond a reasonable doubt that the preferral of charges in this case was not tainted by the danger of Unlawful Command Influence.

The military judge did not expressly elaborate on how these facts constituted apparent unlawful command influence relative to the case.

Slip op. at 10. Notably, the CCA notes that the military judge “concluded the commander had expressed his determination of the appellee’s guilt through his statement at the duty section and the subsequent removal of the appellee.” Slip op. at 11. As a remedy, the military judge dismissed the charges with prejudice.

The CCA reverses, finding that the military judge abused his discretion by dismissing the charges with prejudice, “even if the facts found by the military judge rise to the level of apparent command influence.” Slip op. at 12. The court concludes that “because the military judge did not fully discuss the alternative remedies and it is not clear to us that those alternatives would have been insufficient to restore public confidence in the case, we find he abused his discretion by choosing the ‘last resort’ option of dismissal with prejudice.” Slip op. at 13 (citation omitted).

In an unpublished decision in United States v. Rude, No. 20120139 (A. Ct. Crim. App. Feb. 26, 2015) (link to slip op.), a three-judge panel of the Army CCA affirms a sexual assault prosecution where the Government’s theme was that the appellant was “a predator”:

In the government’s opening statement, trial counsel referred to appellant as “a predator . . . lurking on campus” and that he and JP were in search of prey during the course of the party.

Slip op. at 4. And:

The government argued that appellant’s touching of SB2 followed by the assault on SB1 was evidence of their conspiracy to commit rape, that “[JP] and [appellant] were out on the prowl,” that their approach did not work with SB2, so they tried a different approach with SB1.

Slip op. at 7. The appellant was convicted of two separate sexual assaults during one college party at a friend’s house. At trial, the Government sought to use the evidence of each alleged assault to prove the occurrence of the other:

Prior to closing arguments, and during a hearing outside of the presence of the members on the subject of instructions, government counsel objected to the judge’s proposed spillover instruction. Trial counsel essentially argued that the instruction was not appropriate because the evidence of assault against two different women was relevant propensity evidence under Military Rule of Evidence 413: “it shows a propensity of–the man is committing sexual assault against one person, then that shows a propensity that he’s more likely to do it against the other person.”

Slip op. at 5. Nevertheless, writing for the panel Judge Krauss concludes that:

[T]rial counsel never made any reference or argument before the panel members to or about propensity evidence. The government never characterized the evidence as propensity evidence and did not present the evidence relevant to the one charge as evidence of appellant’s propensity or predisposition to criminal activity generally. Rather, trial counsel presented the evidence as simply relevant to establish appellant’s lustful intent.

Slip op. at 11. Perhaps the trial counsel didn’t use the word propensity in argument, but I think that characterizing an accused as “a predator” and saying that he was “out on the prowl” when he committed a pair of assaults is a propensity argument; particularly when counsel admits as much.

In a published decision in United States v. Leblanc, __ M.J. __, No. 38396 (A.F. Ct. Crim. App. Mar. 26, 2015) (en banc) (link to slip op.), the Air Force CCA holds that even though the punitive provisions of a previous version of Air Education and Training Command Instruction (AETCI) 36-2909, Professional and Unprofessional Relationships (2 March 2007), did not comply with all of the requirements of Air Force Instruction 33-360, Communications and Information, for issuance of publications enforceable as punitive under Article 92, the appellant (who pleaded guilty to violations of AETCI 36-2909 for his improper relationships with military trainees) “lacks standing to enforce” the dictates of AFI 33-360. Slip op. at 10.

Judge Teller writes for the court. Senior Judge Mitchell, joined by Judge Contoveros, dissents in part, finding that the Air Force “is bound by those requirements [of AFI 33-360] and cannot prosecute an individual under Article 92(1), UCMJ, 10 U.S.C. § 892(1) for violating a regulation that does not comply with those requirements.” Slip op. at 14.

AETCI 36-2909 prohibits, among other things, sexual relationships between Air Force instructors and trainees. The appellant was an instructor who had multiple such relationships, eventually pleading guilty to violating two paragraphs of the AETCI (in addition to other misconduct). However, on appeal the appellant asserted that his pleas should be reversed because the two paragraphs of the AETCI do not include specific language that the failure to obey them is a violation of Article 92, as so they are unenforceable as punitive under the UCMJ. The appellant’s assertion is based on the requirement of AFI 33-360 that each punitive paragraph in a publication contain such specific language:

2.17.1.4. Punitive Language. Most of the recommended language used in publications does not readily put the reader on notice that the publication is punitive in nature. Use language that expresses the mandatory nature of the provisions, such as “will,” “will not,” “shall,” “shall not,” “must,” “must not,” etc. Paragraphs containing mandatory provisions or prohibitions must state that a failure to obey is a violation of Article 92 of the UCMJ. This statement should accompany each mandatory provision or prohibition, or may, if clear, refer to a series of mandatory provisions or prohibitions listed within a specific paragraph.

Slip op. at 6 (quoting AFI 33-360) (emphasis added). Of note, the AFI was updated after Appellant’s court-martial, however it still includes the requirement that the punitive language “must also be included in the specific punitive paragraph(s) (or sections) of the publication.” ¶ 1.7.1.2, AFI 33-360 (Sep. 25, 2013) (available here).

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