CAAFlog » Courts of Criminal Appeals » CCA Opinions

In a pair of cases decided in 2012, the Supreme Court held that the Sixth Amendment guarantees criminal defendants a right to effective assistance of counsel during plea negotiations. In Missouri v. Frye, the Court held that “as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.” 132 S. Ct. 1399, 1408 (2012). In Lafler v. Cooper, the Court held that when a defendant rejects a plea deal on the advice of counsel, that rejection will not be prejudicial unless there is a showing of “a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed.” 132 S. Ct. 1376, 1385 (2012).

In a recent published opinion in United States v. Valmont, __ M.J. __, No. 20110644 (A. Ct. Crim. App. Oct. 22, 2014) (link to slip op.), the Army CCA considers a claim of ineffective assistance of counsel (IAC) in the plea negotiation process. The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of premeditated murder in violation of Article 118(a). He was sentenced to confinement for life without the possibility of parole, reduction to E-1, total forfeitures, and a dishonorable discharge. The convening authority approved the sentence as adjudged.

The IAC claim is primarily an assertion that the appellant’s five defense counsel (two military, three civilians) failed to communicate to him plea offers from the Government that would have limited his confinement to a term of years. The court’s recitation of facts is four pages of dense he-said / they-said claims, but it’s clear that the appellant rejected an initial offer that would have limited his confinement to 50 years, that he wanted (but never formally proposed) a deal that limited his confinement to no more than 30 or 40 years, and that there were ongoing informal discussions by email between the appellant’s civilian defense counsel and the trial counsel.

The CCA rejects the IAC claim. This rejection is mostly based on the informality of the discussions between the trial counsel and the defense, noting that Frye only requires communication of formal plea deals.

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The current version of Article 120 involves four separate statutes: Article 120 (adult sexual offenses), Article 120a (stalking), Article 120b (child sexual offenses), and Article 120c (other sexual misconduct). All except for Article 120a are relatively new; they were enacted as part of the National Defense Authorization Act for Fiscal Year 2012 (discussed here) (see also our Article 120 (2012) category) and they took effect on June 28, 2012.

Among other things, Article 120c prohibits “indecent viewing, visual recording, or broadcasting.” These three offenses involve knowingly and wrongfully viewing, recording, or broadcasting “the private area of another person, without that other person’s consent and under circumstances in which that other person has a reasonable expectation of privacy.” Article 120c(a).

But the reach of Article 120c(a)(1) is now significantly limited by a published decision from a three-judge panel of the Navy-Marine Corps CCA in United States v. Quick, __ M.J. __, No. 201300341 (N-M. Ct. Crim. App. Oct. 31, 2014) (link to slip op.). Senior Judge Fischer writes for the panel, finding that the offense of indecent viewing requires that an accused actually view the real-life private area of a person. The CCA reverses the appellant’s conviction for merely viewing a recording (made surreptitiously) of another person’s private area, finding that the specification fails to state an offense.

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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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