CAAFlog » Courts of Criminal Appeals » CCA Opinions

In United States v. Baratta, __ M.J. __, No. 201600320 (N.M. Ct. Crim. App. Mar. 15, 2018) (link to slip op.), a three-judge panel of the Navy-Marine Corps CCA concludes that Article 66 does not confer jurisdiction to modify offense-reporting codes included on the Department of Defense Report of Result of Trial (DD Form 2707-1).

Captain (O-6) Baratta pleaded guilty to two specifications of indecent acts committed prior to 28 June 2012, in violation of Article 120, and to four specifications of indecent viewing, visual recording, or broadcasting committed after 28 June 2012, in violation of Article 120c. A panel of officer members sentenced him to confinement for three years and a dismissal. A pretrial agreement limited the confinement to 24 months.

The offenses involved Baratta surreptitiously video-recording men in a locker room shower and in a guest bedroom and bathroom in his home. “When the police searched the appellant’s home computer, they found nearly four years’ worth of video recordings saved and categorized.” Slip op. at 2.

After Baratta’s trial, the Report of Result of Trial form was completed. That form includes a section (block 3.c) for the DIBRS Code for each offense. DIBRS is the Defense Incident-Based Reporting System, and is the DoD equivalent of the FBI’s National Incident-Based Reporting System (NIBRS). DoD Manual 7730.47-M, Volume 2 (link), provides tables of DIBRS codes for offenses under the UCMJ.

The issue in Baratta, however, isn’t really the DIBRS code applied by the DoD.

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I’ve written a number of times that charging in the disjunctive (using or) rather than charging in the conjunctive (using and) is wrong. See, for example, this post. Charge in the conjunctive, prove in the disjunctive.

In United States v. Shermot, __ M.J. __, No. 1447 (C.G. Ct. Crim. App. Apr. 11, 2018) (link to slip op.), a three-judge panel of the Coast Guard CCA affirms a conviction of a specification of sexual assault that alleged that the appellant:

committed a sexual act upon AD when she was incapable of consenting due to impairment by an intoxicant, “and that condition was known, or reasonably should have been known,” by Appellant.

Slip op. at 3-4 (quoting charge sheet) (emphasis in original). Writing for the panel, Judge Brubaker explains that in this trial by a military judge alone:

For the first time on appeal, Appellant asserts this use of the disjunctive requires his conviction to be overturned for two reasons.

First, in his assignment of error, Appellant asserts, “Article 120(b)(3)(A) is unconstitutional as applied because it allowed the government to require [Appellant] to defend against two separate and distinct mens rea: actual knowledge (knows) and negligence (reasonably should have known), a violation of due process.” (Appellant’s Brief at 17.) His brief clarifies that the purported unconstitutionality stems from a lack of notice as to which theory of liability he was defending against and a lack of protection from double jeopardy. This is more appropriately addressed as a question of the sufficiency of the specification to provide constitutional notice and protection against double jeopardy than the constitutionality of the statute itself as applied.

. . .

Second, in his reply brief, Appellant, citing United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003), posits his verdict is ambiguous because we, in conducting our factual sufficiency review under Article 66(c), UCMJ, cannot ascertain under which mens rea the military judge convicted Appellant.

Slip op. at 4-5.

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In United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page), CAAF held that charged offenses may not be used for propensity purposes under Mil. R. Evid. 413.

In Lewis v. United States, 76 M.J. 829, No. 2017-05 (A.F. Ct. Crim. App. Sep. 20, 2017) (link to slip op.) (discussed here), a three-judge panel of the Air Force CCA denied a petition for extraordinary relief in the nature of a writ of coram nobis that sought retroactive application of Hills to cases where the appeals are over and the conviction is final.

Now, rejecting a pair of petitions for extraordinary relief, a three-judge panel of the Navy-Marine Corps CCA follows suit and concludes that CAAF’s decision in Hills does not apply retroactively.

First, in Burleson v. United States, __ M.J. __, No. 200700143 (N.M. Ct. Crim. App. Feb. 26, 2018) (link to slip op.), the panel concludes that Hills is non-retroactive and that the petition seeks to reevaluate issues raised (but rejected) during the ordinary appeal. Next, in Pierre v. United, No. 201300257 (N.M. Ct. Crim. App. Mar. 8, 2018) (link to slip op.), the panel applies Burleson while noting that the petitioner was confined (and so should have filed a petition for a writ of habeas corpus).

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Early last year the Army CCA applied CAAF’s blockbuster decision in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page), to reverse convictions involving the sexual abuse of five children and a sentence that included confinement for life, in United States v. Adams, No. 20130693 (A. Ct. Crim. App. Jan. 6, 2017) (link to slip op.). The CCA authorized a rehearing.

A rehearing is a “continuation[] of the original proceedings.” Reid v. Covert, 351 U.S. 487, 491 (1956). Rehearings may occur in full, on only the sentence, or as a combination of a rehearing (in full or sentence-only) with a trial on new charges. See Article 63; R.C.M. 810(a).

When convictions are reversed and a rehearing is authorized – as occurred in Adams – and the convening authority wants to conduct a rehearing, the right thing to do is to refer the original charges to a new court-martial. This is so for practical reasons (the charges still exist and were not dismissed) and because the original charges tolled the statute of limitations (and new charges might be time barred). But the right thing didn’t happen in Adams. Instead, after the CCA reversed the convictions, military prosecutors preferred new charges (in 2017) that were substantially identical to the original charges (preferred in 2012).

Duplicating the original charges was sloppy (at best), but then a staff judge advocate made a complete mess of things:

On the advice of the acting staff judge advocate, the convening authority dismissed “without prejudice” the 2012 charges and referred the 2017 charges to a general court-martial.

At trial, petitioner moved to dismiss the 2017 charges for lack of jurisdiction. Appellant asserted that the convening authority had exceeded the mandate of this court’s remand. The military judge denied the motion and this writ-petition followed.

Adams v. Cook, Military Judge, No. 20170581 (A. Ct. Crim. App. Jan. 23, 2018) (link to slip op.), writ-appeal filed, __ M.J. __, No. 18-0171/AR (C.A.A.F. Mar. 19, 2018).

A three-judge panel of the Army CCA denied Adams’ petition for writs of mandamus and habeas corpus, concluding that Adams failed to meet the burden to justify a writ. Adams has since sought review by CAAF. Yet while the acting staff judge advocate’s bad advice to dismiss the original charges and refer only the new charges made a mess of the case, I think it’s highly unlikely that Adams will be successful in stopping a second trial.

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With a published decision in United States v. Contreras-Ramos, __ M.J. __, No. 20160182 (A. Ct. Crim. App. Jan. 30, 2018) (link to slip op.), a three-judge panel of the Army CCA affirms that morphed images – created by combining elements from multiple sources – can constitute contraband child pornography.

The images at issue were created by the appellant when he “took existing pictures of his daughters, ages eight and thirteen, and made them appear sexual.” Slip op. at 4. He also manipulated images to make them appear to show him committing sexual acts with his daughters. Slip op. at 5.

For these acts he was charged with a novel specification under Article 134 that alleged:

In that Staff Sergeant Fredyshernan Contreras-Ramos, U.S. Army, did, at an unknown location, between on or about 2 July 2012 and on or about 10 June 2014, knowingly and wrongfully create visual depictions of his minor daughters, A.C. and M.C., and other children engaging in indecent conduct, such conduct being of a nature to bring discredit upon the armed forces.

Slip op. at 2. His defense counsel moved to dismiss, asserting that the specification failed to state an offense, but the military judge denied the motion. Contreras-Ramos then pleaded guilty to that offense, to a separate specification of possessing child pornography (other images), and to unauthorized absence. The approved sentence included confinement for four years, reduction to E-1, and a bad-conduct discharge.

Writing for the three-judge panel, Judge Salusollia explains that such morphed images are punishable as contraband child pornography. This specific conviction is reversed, however, because child pornography offenses are enumerated under Article 134 in the MCM (and have been since 2011) and the MCM prohibits using a novel specification to charge conduct covered by an enumerated offense. See United States v. Reese, 76 M.J. 297 (C.A.A.F. Jun. 14, 2017) (CAAFlog case page).

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Three years ago, in United States v. Schloff, 74 M.J. 312 (C.A.A.F. 2015) (CAAFlog case page), a divided CAAF held that sexual contact – as defined by Article 120(g)(2) (2012) – includes both body-to-body contact and object-to-body contact.

The alleged object-to-body touching was stethoscope-to-breast contact during examinations performed by First Lieutenant (O-2) Schloff, a physicians assistant. The procedural posture of the case was unusual; Schloff was convicted of one such touching and sentenced to a dismissal, and then the military judge dismissed the specification as failing to state an offense. The Army CCA reversed and CAAF affirmed the CCA, remanding for further proceedings (ordinary Article 66 review).

On remand Schloff alleged that the findings were tainted by unlawful influence because during deliberations two of the members argued that  the Army needed to appear strong on sexual assault issues.

In an unpublished opinion issued in February, a three judge panel of the Army CCA agreed, and it reversed the conviction and authorized a rehearing, concluding:

Although we have an independent duty to determine the question of UCI de novo, we concur with the DuBay military judge that actual and apparent UCI occurred and the government failed to establish “beyond a reasonable doubt that UCI . . . was not improperly brought to bear on any member during the findings phase of [appellant’s] court-martial.” As correctly noted by the DuBay military judge “[COL
JW] injected policy and career concerns into the deliberations [and h]e did so despite the military judge’s clear guidance that the case be decided solely on the evidence presented in court and the instructions on the law given by the military
judge.” The UCI was a “palpable cloud throughout the deliberations” left to permeate in each panel member’s decision-making process.

Allowing this UCI to hover would prejudicially impact the fairness of appellant’s court-marital.

United States v. Schloff, No. 20150724, slip op. at 4 (A Ct. Crim. App. Feb. 5, 2018) (link to slip op.).

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In United States v. Zegarrundo, __ M.J. __, No. S32430 (A.F. Ct. Crim. App. Jan. 31, 2018) (link to slip op.) (CAAFlog link), a three-judge panel of the Air Force CCA finds that an error in the clemency submission from the appellant’s defense counsel requires remand for a new convening authority’s action.

The error was that defense counsel wrongly believed that the convening authority had no power to reduce the adjudged sentence to confinement, when in reality the convening authority had such power because the adjudged sentence to confinement was not more than six months.

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A three-judge panel of the Navy-Marine Corps CCA issued a published opinion in United States v. Shields, __ M.J. __, No. 201600133 (N.M. Ct. Crim. App. Jan. 31, 2018) (link to slip op.), holding that a Secretary of the Navy Instruction (SECNAVINST) in effect at the time of the appellant’s misconduct (but since changed), that purported to automatically cancel any directive older than seven years, did not apply to regulations already older than seven years, including the Navy’s sexual harassment instruction of which the appellant was convicted of violating.

It’s the CCA’s second opinion in the case; the court previously reversed two of the appellant’s convictions with an unpublished opinion (available here), findings that a Hills error was not harmless. This new, published opinion restates the Hills analysis from the prior, unpublished opinion, and reaches the same result.

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The #2 Military Justice Story of 2015 was Government Bloopers, because a handful of cases that year portrayed military prosecutors and Government appellate attorneys as most-competent at sabotaging themselves.

Among those cases was CAAF’s summary rejection of the prosecution appeal in United States v. Bowser, 74 M.J. 326 (C.A.A.F. Mar. 25, 2015) (CAAFlog case page). Bowser involved sexual assault charges that were dismissed with prejudice because the prosecution refused to permit an in camera review of their witness interview notes. In 2015, upon receiving the prosecution appeal and accompanying brief, CAAF rejected the brief because it failed to address possible controlling or adverse authority, and the court ordered the Government to “file an amended brief addressing the deficiency noted.” It then rejected the certified issue and affirmed the dismissal of the charges in a summary disposition.

At least one Air Force prosecutor – and an ideological fellow-traveler in the Air Force Special Victims’ Counsel program – didn’t like that. And so they conspired to remove the military judge who dismissed the charges in Bowser from his judicial assignment. We know this because they ultimately succeeded in removing the judge, defense counsel figured it out, it was litigated, and now as a result the Air Force CCA reverses the findings of a general court-martial involving four separate alleged victims of sexual assault, and the sentence that included a whopping 29 years of confinement.

The case is United States v. Vargas, No. 38991 (A.F. Ct. Crim. App. Mar. 15, 2018) (link to slip op.) (CAAFlog link to slip op.). Judge Mink writes for a three-judge panel.

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Waiver mania was the #3 Military Justice Story of 2017, primarily because of a series of cases from the Army CCA holding that the mere failure failure to object to improper argument at trial waives (meaning extinguishes) any error. The decisions contravene longstanding precedent that treats such failure as forfeiture (meaning that the appellant is entitled to relief if the improper argument rises to the level of plain error), and the pending amendments to the MCM (now overdue) are expected to change the text of the applicable rules to conform with the precedent interpreting their meaning.

Nevertheless, the first such decision was United States v. Marcum, No. 20150500 (A. Ct. Crim. App. May 5, 2017) (link to slip op.). CAAF granted review in Marcum in October (discussed here). But the biggest such decision was in United States v. Kelly, 76 M.J. 793, No. 20150725 (A. Ct. Crim. App. Jul. 5, 2017) (en banc) (link to slip op.), in which the en banc CCA unanimously applied waiver. CAAF granted review of a different issue in Kelly (noted here), but then expanded that review to also make Kelly a Marcum trailer (noted here). The granted waiver issue in Marcum and Kelly states:


The CCA also applied waiver in United States v. Burris, No. 20150047 (A. Ct. Crim. App. May 8, 2017) (mem. op.), aff’d on recon., No. 20150047 (A. Ct. Crim. App. July 28, 2017) (unpub. sum. disp. on recon.). CAAF granted review of the waiver issue in that case too (noted here), with a bluntly-worded issue:


Disclosure: I represent the appellants in both Kelly and Burris.

Somewhat concurrently, the Navy-Marine Corps CCA adopted – but then reconsidered and rejected – the CCA’s finding that the mere failure to object to improper argument constitutes waiver. See United States v. Motsenbocker, No. 201600285 (N.M. Ct. Crim. App. Aug 10, 2017) (discussed here), recon. granted, No. 201600285 (N.M. Ct. Crim. App. Oct 17, 2017) (discussed here).

With the Army CCA’s finding of waiver squarely before CAAF in two merits cases and one trailer, and with the Navy-Marine Corps CCA rejecting waiver, doubt is starting to appear at the Army court. Specifically, in a recent opinion in United States v. Koch, No. 20160107 (A. Ct. Crim. App. Jan. 29, 2018) (link to slip op.), a three-judge panel of the CCA applies forfeiture to the failure of the appellant’s counsel to object to improper argument, acknowledging that:

Regardless of how persuasive our sister court’s [the NMCCA’s] discussion of Ahern as applied to unpreserved error may be (see concurring and dissenting opinions below) we are obligated to follow the precedent of this Court.

Our superior court has granted a petition to decide this issue. United States v. Kelly, No. 17-0559/AR (C.A.A.F. 20 Dec 2017) (order). As we find any error in this case does not amount to plain error, for purpose of judicial economy we apply waiver but will also test for plain error.

Slip op. at 8. Judge Wolfe writes for the panel and also writes a separate concurring opinion explaining:

I would also revisit our holding in Kelly that the failure to object to errors in argument waives, rather than forfeits, the error. *FN

*FN 13* I was the author of this Court’s opinion in Kelly. Nonetheless, I am persuaded by our sister court’s treatment of the issue in Motsenbocker that we (or at least I) overstepped. While I recognize that the issue is now squarely before the CAAF, I would not wait to revisit the issue.

Slip op. at 17.

Senior Judge Mulligan and Judge Febbo, however, while concurring in the application of plain error review, would not revisit the CCA’s decision in Kelly. Judge Febbo writes:

Additionally, I see no reason to revisit United States v. Kelly, 76 M.J. 793 (Army Ct. Crim. App. 2017), as Judge Wolfe suggests. I would apply the plain language of R.C.M. 919(c). As CAAF stated in United States v. Reese, courts “apply the ordinary rules of statutory construction in interpreting the R.C.M.” 76 M.J. 297, 301 (C.A.A.F. 2017) (analyzing the plain language of R.C.M. 603(d)). R.C.M. 919(c) clearly states that an appellant who fails to object to an improper argument thereby waives objection.

Slip op. at 20. Footnote 14 adds: “The use of the term ‘waiver’ was intentional and the R.C.M. is consistent with applying waiver for failure to objections made during arguments in both findings and sentencing. See R.C.M. 919(c) and l001(g).”

I recently filed the Appellant’s brief in Burris with CAAF (available here). The brief makes numerous arguments against applying waiver, including that even though R.C.M. 905(e) and 919(c) use the word waiver, the structure of the rules, their history, and CAAF’s precedent all show that the word waiver in those rules actually means forfeiture.

With a published decision in United States v. Buford, __ M.J. __, No. 39087 (A.F. Ct. Crim. App. Dec. 19, 2017) (link to slip op.), the Air Force CCA holds:

The members sentenced Appellant to a bad-conduct discharge and reduction to E-1. The convening authority approved the adjudged sentence and ordered that “[u]nless competent authority otherwise directs, [Appellant] will be required, under Article 76a, UCMJ, 10 U.S.C. § 876a, to take leave pending the completion of appellate review.” At the time Appellant began the required period of what is referred to as appellate leave, he had 73 days of accrued leave. When presented with an option to receive a lump sum payment for the accrued leave or to “use” the leave, Appellant elected the latter, or to “[r]eceive pay and allowances during the period of accrued leave, then continue on unpaid required excess leave.” As of the date Appellant filed his appellate brief, he had not been paid for the period of accrued leave.

Appellant asserts he has been improperly denied his pay and this court has jurisdiction under Article 66(c), UCMJ, 10 U.S.C. § 866(c), to provide a remedy. Appellant specifically requests two forms of tailored relief. First, Appellant asks that we prohibit the convening authority from taking final action until Appellant is paid for the period of accrued leave. Secondly, Appellant argues that we should disapprove the approved reduction in grade to E-1 so that his accrued leave is paid at the E-4 rate, which would compensate him for the consequential damages (financial hardships) he attributes to the improper withholding of pay. We hold that Article 66(c), UCMJ, does not grant this court jurisdiction over a pay dispute absent a nexus to the approved sentence. As Appellant’s dispute with military officials does not concern the approved sentence, it is beyond our statutory authority. We find no error that materially prejudiced a substantial right of Appellant and affirm the findings and sentence.

Slip op. at 2 (marks in original) (emphasis added).

The opinion distinguishes the circumstances of this case from those of United States v. Gay, 75 M.J. 264 (C.A.A.F. 2016) (CAAFlog case page), in which CAAF affirmed the CCA’s power to grant sentence appropriateness relief without first finding the existence of cruel and unusual punishment in violation of Article 55 or the Eighth Amendment:

In Gay, the legal deficiency resulted in improper solitary confinement and “conditions of confinement that were more severe than what [appellant] should have experienced.” [75 M.J.] at 269. We note that the authority validated in Gay was rooted and limited to a legal deficiency that directly impacted a component of the sentence. It is clear that Gay may be cited for the proposition that a CCA is not limited to violations of the Eighth Amendment to the United States Constitution, Article 55, UCMJ, 10 U.S.C. § 855, or other defined rights and protections as a basis for granting relief. However, CAAF in Gay did not recognize unlimited authority under Article 66(c), UCMJ, for a CCA to grant sentencing relief, including for errors collateral to the court-martial process. We are neither persuaded that we have such unlimited authority nor convinced that we should exercise any of our limited authority to grant relief for an administrative matter unrelated to any legal deficiency and unconnected to the legality or appropriateness of a court-martial sentence.

Slip op. at 6 (emphasis in original).

The underlying issue seems to be a recurring problem. The CCA made a similar finding of no-jurisdiction in United States v. Whiting, No. S32420 (A.F. Ct. Crim. App. Jan. 4, 2018) (link to slip op.).

In a scathing opinion in United States v. Christopher, No. 201600249 (N.M. Ct. Crim. A.. Dec. 28, 2017) (en banc) (link to slip op.), the NMCCA concludes that:

the appellant’s trial defense team was ineffective because they erroneously concluded that the statute of limitations was inapplicable to his case.

Slip op. at 3. Judge Jones writes for a unanimous court. The counsel are not identified.

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Article 6b states that a crime victim has a “right to be reasonably heard at . . . [a] sentencing hearing relating to the offense.” Article 6b(a)(4)(B). It does not, however, say precisely how the victim may be heard.

Article 42(b) states that “each witness before a court-martial shall be examined on oath.”

R.C.M. 1001A states that a victim may make a sworn or unsworn statement during the sentencing phase of the court-martial “independent of whether the victim testified during findings or is called to testify [in sentencing].” R.C.M. 1001A(a).

In United States v. Hamilton, 77 M.J. 579, No. 39085 (A.F. Ct. Crim. App. Dec. 20, 2017) (en banc) (link to slip op.), the Air Force CCA reconciles the Article 42(b) requirement for testimony under oath with the Article 6b(a)(4)(B) right to be heard in sentencing and concludes:

unsworn victim impact statements offered pursuant to R.C.M. 1001A are not evidence. See also United States v. Provost, 32 M.J. 98, 99 (C.M.A. 1991) (if an accused elects to make an unsworn statement, he is not offering evidence). Both R.C.M. 1001(c)(2)(C) and R.C.M. 1001A(e) allow facts in an unsworn statement to be contradicted or rebutted. This does not change the character of the right to speak.

Slip op. at 5 (emphasis added). Furthermore, because a victim’s unsworn statement is not evidence, the Military Rules of Evidence (including the balancing test in Mil. R. Evid. 403) “do not apply to victim unsworn statements.” Slip op. at 9.

The majority specifically “does not address the application of the Mil. R. Evid. to sworn victim impact statements.” Slip op. at 5 n.3.

The conclusion that an unsworn statement from a victim is not evidence is consistent with precedent explaining that an accused’s unsworn statement “is not evidence.” United States v. Marsh, 70 M.J. 101, 104 (C.A.A.F. 2011) (quoting United States v. Breese, 11 M.J. 17, 23 (C.M.A. 1981)) (last discussed here). But it is not unanimous. Three judges dissent, with Senior Judge Harding writing:

As R.C.M. 1001A victim statements, sworn or unsworn, are presented to the court-martial for use and consideration on the determination of sentence, in addition to empowering a victim to speak, I would treat them as sentencing “evidence” by any other name and follow the Military Rules of Evidence, absent an exception otherwise provided.

Slip op. at 15 (Harding, S.J. dissenting).

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In United States v. Windham, __ M.J. __, No. 20160340 (A. Ct. Crim. App. Nov. 17, 2017) (link to slip op.), a three-judge panel of the Army CCA rejected an equal protection challenge to a prosecution for larceny based on a sham marriage (also known as a contract marriage).

Specialist (E-4) Windham pleaded guilty to larceny (of a housing allowance) and conspiracy to commit larceny (of the allowance), telling the military judge that:

“his marriage to Ms. TG [w]as a ‘fake marriage,’ a “contract marriage,” and stated “we did not get married with the intent of being in a relationship.” The military judge accepted appellant’s plea to conspiracy to commit larceny of BAH and larceny of BAH.

Slip op. at 2. On appeal, Windham asserted that the Supreme Court’s decision in United States v. Windsor, 133 S. Ct. 2675 (2013) (the same-sex marriage case), requires the federal government to recognize his marriage.

The CCA rejected the challenge:

While Windsor nullified DOMA and its extensive applicability to several federal laws and regulations, the Supreme Court continued to recognize the “constitutionality of limited federal laws that regulate the meaning of marriage in order to further federal policy.” For example, even if a marriage was valid under state law, the federal government was not required to recognize, for immigration purposes, a marriage entered into for the sole purpose of procuring a noncitizen’s admission into the United States.

Slip op. at 3 (citations omitted). It concluded:

the issue at bar is not whether appellant’s Texas marriage certificate is or is not valid and should be recognized by the federal government, but rather whether appellant’s sole purpose in entering the marriage was to obtain governmental funds to which he was not otherwise entitled. . . .

A review of appellant’s discussion with the military judge makes it abundantly clear his “sole purpose” in marrying Ms. TG was to obtain a BAH entitlement at the with-dependent rate.

Slip op. at 4.

The important point here is that Windham pleaded guilty, and “admitted to the military judge he married Ms. TG ‘for the sole purpose of obtaining money from the United States.'” Slip op. at 2. That’s a crucial fact. See also United States v. Hall, 74 M.J. 525, 530 (A.F. Ct. Crim. App. 2014) (“What we hold today is simply this: It is not the absence of a perfect or ideal ‘love, honor, and cherish’ motivation of the parties that renders the consequences flowing from the appellant’s actions in the case before us criminal; rather, it is the affirmative presence of a singularly focused illicit one—an intent to fraudulently acquire a government payment stream—that does so.”)

The appellant in United States v. Langhorne, ___ M.J. __, No. 39047 (A.F. Ct. Crim. App. Dec. 5, 2017) (link to slip op.), was accused of attempting murder-for-hire. The evidence admitted against him included messages from his Facebook account. Military investigators:

accessed the account by using the user name and password that Appellant provided to a third person over a monitored telephone line from Appellant’s pretrial confinement facility.

Slip op. at 5-6.

No problem, finds the Air Force court.

The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const. amend. IV. Under the Fourth Amendment, a “search” occurs when “the government violates a subjective expectation of privacy that society recognizes as reasonable.” Kyllo v. United States, 533 U.S. 27, 33 (2001). Under the third-party doctrine, “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties . . . even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.” Smith v. Maryland, 442 U.S. 735, 743–44 (1979) (citing United States v. Miller, 425 U.S. 435, 442–44 (1976)). See also United States v. Larson, 66 M.J. 212, 215 (C.A.A.F. 2008); United States v. Caira, 833 F.3d 803, 806 (7th Cir. 2016). When Appellant voluntarily revealed his Facebook username and password to TSgt PF, he no longer had a reasonable expectation of privacy in his Facebook account. The fact that Appellant was aware that his telephone conversation was being recorded and subject to monitoring further cements the conclusion that when AFOSI used the recorded information to access and copy his Facebook messages, the investigator’s actions did not constitute a “search” under the Fourth Amendment, since they did not violate a reasonable expectation of privacy. Accordingly, the military judge did not abuse his discretion when he overruled the Defense objection and admitted Appellant’s Facebook messages.

Slip op. at 8 (marks in original) (emphasis added).