CAAFlog » Courts of Criminal Appeals » CCA Opinions

The Air Force CCA has issued a published en banc decision in the interlocutory case of United States v. Wright, __ M.J. __, No. 2014-10 (A.F. Ct. Crim. App. Jan. 13, 2015) (link to slip op.).

The opinion appears to be jointly authored by Senior Judge Hecker and Judge Weber.

We’ve covered the Wright case sporadically (I summarized our past coverage in this post). It is a sexual assault case that was dismissed last year by Air Force Lieutenant General Craig Franklin. After General Franklin dismissed the charges, authority over the case was transferred to Air Force District of Washington in Maryland, new charges were preferred, a second Article 32 pretrial investigation was conducted, and the charges were referred to trial. Litigation of defense claims of unlawful command influence followed, and the trial judge eventually abated the proceedings after the Government asserted an attorney-client privilege over documents sought by the defense in connection with those claims.

The CCA’s opinion provides additional facts that I haven’t seen in print anywhere else:

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As I noted in my write-up on the number four story in our top ten list for 2014, the NMCCA recently set aside another sentence in a case from Parris Island, based on the military judge’s PME to law student interns. The accused in United States v. Arnold, No. 201200382 (N-M.C.C.A. Dec. 23 2014) was convicted, pursuant to his pleas, of larceny, providing false information to a police officer, driving with a suspended license, stealing a license plate, counterfeiting currency, and altering a base decal, all in violation of Articles 121 and 134, UCMJ.

The appellant was sentenced to 12 months confinement, forfeiture of $950.00 pay per month for 12 months, reduction to E-1 and a bad conduct discharge. The convening authority approved the sentence as adjudged, but suspended all confinement in excess of 30 days pursuant to a pretrial agreement. This sentencing occurred approximately four weeks prior to the military judge’s PME to Marine law students at Parris Island. In his original assignment of error, the appellant alleged the military judge was disqualified because he showed an inflexible attitude about sentencing and allowed his perceptions about the expectations of the Commandant of the Marine Corps and Congress to enter his deliberations. The NMCCA affirmed the findings and sentence as approved; however, the case was remanded by CAAF following its decision in United States v. Kish.

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The completeness of a member’s response to questions during voir dire is the central issue in United States v. Robinson, No. 20120993 (A. Ct. Crim. App. Dec. 23, 2014) (link to slip op.).

The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of one specification of aggravated sexual assault and two specifications of adultery, in violation of Articles 120 and 134. The sexual assault conviction involved an allegation that the appellant used force to engage in sexual activity with another soldier.

Chief Warrant Officer 4 (CW4) DD was a member of the panel for the appellant’s trial. During voir dire, CW4 DD denied that anyone in his family had been the victim of an offense similar to the allegations against the appellant, and he denied knowledge of “anything that might raise a substantial question concerning whether [he] should participate as a court-martial member.” Slip op. at 3. Neither side challenged the inclusion of CW4 DD as a member of the panel.

After the appellant’s trial, CW4 DD served as a member in another court-martial also involving a sexual assault allegation. In that case, “CW4 DD revealed that his daughter had been sexually assaulted when she was a young child.” Slip op. at 3. A post-trial hearing was held in the appellant’s case to consider whether CW4 DD should have been disqualified, during which CW4 DD explained that “he did not reveal this information when asked questions during voir dire in appellant’s case because at that time he thought the questions were tied to the charges in appellant’s case and he did not believe they were similar to what happened to his daughter.” Slip op. at 3. The military judge denied the appellant’s post-trial challenge of CW4 DD, finding that “CW4 DD testified convincingly on this matter that the incident involving his young daughter did not cross his mind when he was asked those questions because he knew he owed it to both parties to be fair and was sure that he could be.” Slip op. at 3.

The Army CCA affirms. Senior Judge Tozzi writes for a majority of a three-judge panel of the court, while Judge Celtnieks dissents.

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Writing for the majority of a three-judge panel in United States v. McCormick, __ M.J. __, No. 20120029 (A. Ct. Crim. App. Dec. 19, 2014) (link to slip op.), Chief Judge Pede finds that “appellant’s intent and the timing of that intent,” slip op. at 7, permit the court to affirm convictions for both being an accessory after the fact to attempted unpremeditated murder and for being a principle (by aiding and abetting) to aggravated assault related to the same attempted murder.

The facts are:

[A]ppellant was the driver (but not the shooter) in a drive-by-shooting targeting another occupied vehicle. As the driver, appellant aided and abetted the shooter, precipitating appellant’s convictions for aggravated assault. The shooter himself, however, ultimately fired thirteen rounds into the targeted vehicle, evidencing the shooter’s intent to commit murder. Appellant then drove away from the scene and helped cover up the shooting, arguably making appellant an accessory after the fact to the shooter’s attempted murder of the targeted vehicle’s occupants.

Slip op. at 5. For these actions the appellant was charged with attempted premeditated murder and with aggravated assault, both as a principle actor to the shooting by aiding and abetting the actual shooter, and also with accessory after the fact to attempted premeditated murder for helping to cover up the shooting. A general court-martial composed of a military judge alone acquitted the appellant of the attempted premeditated murder charge, but convicted him of the aggravated assault and accessory after the fact charges.

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In United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012) (CAAFlog case page), CAAF reversed a conviction for an adultery specification that failed to state a terminal element, even though the accused did not challenge that deficiency at trial, on the basis that “there was nothing during its case-in-chief that reasonably placed Appellee on notice of the Government’s theory as to which clause(s) of the terminal element of Article 134, UCMJ, he had violated.” 71 M.J. at 217.

While the terminal element issue made Humphries a famous (or infamous) case, there was a second issue that the majority did not resolve: Whether the Air Force CCA had the authority to practically force the convening authority to suspend an adjudged punitive discharge by concluding that a sentence that includes an unsuspended punitive discharge is inappropriately severe.

Chief Judge Baker and Judge Stucky, who both dissented from the majority’s decision on the terminal element issue, would have resolved this other issue against the CCA. Both were blunt. Chief Judge Baker wrote, “If the Court of Criminal Appeals was seeking to accomplish an appropriateness end to which it did not itself have the authority to reach— suspension of a bad-conduct discharge— then it was acting beyond its legal authority.” 71 M.J. at 219. Judge Stucky wrote, “In this case, the CCA thought the bad-conduct discharge that the convening authority approved should be suspended. Apparently recognizing that they did not have the power to suspend the bad-conduct discharge, they remanded the case to the convening authority for a new action, basically giving him two options— either approve a sentence that did not include an unsuspended bad-conduct discharge or the CCA would set aside the bad-conduct discharge. The CCA was without authority to take such action.” 71 M.J. at 223-224.

Recently, while reading decisions from the Navy-Marine Corps CCA, I was reminded of this issue. In particular, two cases decided by per curiam decisions from a three-judge panel of that court (the same panel in both cases), purport to suspend portions of adjudged confinement. The CCA’s action in each case resolves the failure of each convening authority to abide by the terms of pretrial agreements that required suspension of confinement in excess of a certain number of months.

The cases are United States v. Fairley, No. 201400268 (N-M. Ct. Crim. App. Dec. 23, 2014) (link to slip op.), and United States v. Moss, No. 201400286 (N-M. Ct. Crim. App. Dec. 23, 2014) (link to slip op.). The CCA’s action in Moss also purports to waive automatic forfeitures for the benefit of the appellant’s dependent.

Notably, the opinions indicate that neither appellant suffered additional confinement because of the each convening authority’s breach of the pretrial agreements, and that in Moss the appellant’s dependent actually received the automatically forfeited monies.

These cases present an interesting potpourri of issues. The CCA’s action is certainly practical – since neither appellant is suffering actual prejudice, one can understand not sending the case back to each convening authority for correction. But even if a CCA can force a suspension as a matter of sentence appropriateness (the issue in Humphries), a CCA can’t actually suspend a sentence, or waive automatic forfeitures, itself. Moreover, since the convening authority in each case (both of which are general court-martial convening authorities) approved and ordered executed in full the confinement, and the convening authority in Moss did not waive the automatic forfeitures, what of obedience to those orders?

Ironically, the appellant in Moss pleaded guilty to offenses that included four specifications of violating a general order or regulation.

Article 10 was our #10 military justice story of 2013. “CAAF blotted the ink from Article 10’s obituary [in 2013],” I wrote, and “the possibility that Article 10 will rise from the dead [in 2014] is slim.”

But in the final days of 2014 the Coast Guard CCA issued an opinion in United States v. Cooley, No. 1389 (C. G. Ct. Crim. App. Dec. 24, 2014) (link to slip op.) dismissing numerous charges for violation of the appellant’s right to a speedy trial under Article 10. Chief Judge McClelland wrote for a three-judge panel of the court.

Pursuant to a pretrial agreement the appellant conditionally pleaded guilty, at a general court-martial composed of a military judge alone, of one specification of attempting a lewd act with a child of more than 12 years but less than 16 years, two specifications of attempting to wrongfully commit indecent conduct, one specification of failing to obey an order, and one specification of wrongfully and knowingly possessing apparent child pornography, in violation of Articles 80, 92, and 134. He was sentenced to confinement for seven years, total forfeitures, reduction to E-1, and a bad-conduct discharge. In accordance with the pretrial agreement the convening authority suspended all confinement in excess of 50 months.

In July 2012 the appellant confessed to soliciting sexually explicit photographs from minor children. He was then subjected to a series of pretrial restraints, until he was eventually ordered into pretrial confinement (for the second time) on December 20, 2012, where he remained until his guilty plea on October 4, 2013. Many things happened in those 289 days: charges were dismissed without prejudice for violation of the regulatory speedy trial RCM 707, new charges were added, and two Article 32 pretrial investigations were conducted.

This creates a complicated case history from which I draw the following important dates:

  • December 20, 2012: The appellant was placed into pretrial confinement;
  • February 29, 2013: Charges preferred;
  • May 23, 2013: Charges dismissed without prejudice, for violation of the 120-day time limit of RCM 707;
  • May 23, 2013: Original charges re-preferred;
  • Unknown date: Charges dismissed;
  • June 14, 2013: Original charges preferred for third time, along with two new specifications;
  • September 10, 2013: The appellant was arraigned, military judge denied motion to dismiss on speedy trial grounds;
  • October 4, 2013: The appellant entered conditional pleas of guilty.

The CCA’s decision dismisses the original charges with prejudice (for violation of Article 10), and the two additional specifications without prejudice (for violation of RCM 707). And so it seems that Article 10 has risen from the dead! But I’m not so sure…

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The current version of Article 120 includes the following definition

(2) Sexual contact.—The term “sexual contact” means—

(A) touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, or degrade any person; or

(B) any touching, or causing another person to touch, either directly or through the clothing, any body part of any person, if done with an intent to arouse or gratify the sexual desire of any person.

Touching may be accomplished by any part of the body.

UCMJ art. 120(g)(2), 10 U.S.C. § 920(g)(2) (2012). If an accused touches an alleged victim with a stethoscope (while pretending to conduct a medical examination, perhaps), can that touching constitute sexual contact?

Yes it can, finds Judge Haight, writing for a three-judge panel of the Army CCA and granting a Government interlocutory appeal in United States v. Schloff, No. 20140708 (A. Ct. Crim. App. Dec. 16, 2014) (link to slip op.).

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Last year, in this post, I noted the Army CCA’s decision in United States v. Long, 73 M.J. 541 (A. Ct. Crim. App. Jan 30, 2014), where a panel of the court considered instructions about the definition of a competent person for the purpose of consenting to sexual activity with another. The victim in Long was very intoxicated, but the CCA concluded that “the evidence in this case establishes that SB was competent; that she did not consent; and that she both verbally and physically resisted appellant’s sexual conduct.” 73 M.J. at 546.

Then, in this post, I analyzed a decision by a panel of the Army court in United States v. Gardner, No. 20120193 (A. Ct. Crim. App. Aug. 28, 2014), pet. for rev. filed, 73 M.J. 480 (C.A.A.F. Sep. 18, 2014). There the CCA noted:

It is important to repeat that one need not be totally incapacitated to be the victim of an aggravated sexual assault under Article 120, UCMJ. In addition, one need not be substantially incapacitated by alcohol or any singular thing or condition to be a victim of an aggravated sexual assault. One might be substantially incapacitated by any number of things or combination of things including alcohol, sleep, fear, panic, and any number of mental or physical infirmities by whatever cause.

Gardner, slip op. at 5. Notably, Judge Krauss wrote for the CCA in both Long and Gardner.

A different panel of the Army court revisited the definition of a competent person in United States v. Brown, No. 20130177 (A. Ct. Crim. App. Nov. 21, 2014) (link to slip op.). The victim in Brown was intoxicated (like the victims in Long and Gardner). However the victim in Brown did not resist (victim in Long resisted, the victim in Gardner did not). Rather, the victim in Brown testified that “she was unable to resist, and that ‘she could see what was happening but couldn’t do anything.'” Slip op. at 2.

Brown was charged with and convicted of aggravated sexual assault of a person who was substantially incapacitated, in violation of Article 120(c) (2006). But the definition of the term “substantially incapacitated” was an issue at trial. The term was not defined in the 2006 statute, and the Defense asked the military judge to modify the standard Benchbook definition as follows:

“Substantially incapacitated” and “substantially incapable” mean that level of mental impairment due to consumption of alcohol, drugs, or similar substance; while asleep or unconscious; or for other reasons; which rendered the alleged victim an individual unable to appraise the nature of the sexual conduct at issue, unable to physically communicate unwillingness to engage in the sexual conduct at issue, or otherwise unable to make or communicate competent decisions or to decline participation in the sexual act.

Slip op. at 2-3 (formatting in original). The military judge refused to give the modified instruction requested by the Defense.

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In a recently published opinion, United States v. Hoffman, No. 201400067 (11 Dec 2014), the NMCCA held that allegations of child enticement offenses coupled with a law enforcement officer’s training and experience could establish probable cause for a search authorization of a suspect’s computer for child pornography.

The appellant was convicted, contrary to his pleas, of one specification each of attempted sodomy with a child, indecent liberties with a child, child enticement, and possession of child pornography, in violation of Articles 80, 120, and 134, UCMJ. The appellant is alleged to have attempted to solicit boys between the ages of 10 and 13 for oral sex on three separate occasions. On two occasions, the appellant was alleged to have repeatedly driven by two different underage boys, made hand motions indicating oral sex at them, and asked them if they wanted to go for a ride. However, at trial the appellant was acquitted of the specifications related to these two incidents. He was convicted of the specifications for a third incident, where he drove by yet another boy several times and asked him multiple times if he wanted a “quickie.”

Following one of the alleged incidents of which the appellant was acquitted, the appellant was apprehended by CID at Camp Lejeune and he consented to a search of his barracks room. However, once the investigating agent began searching the appellant’s desk, the appellant revoked his consent. Nevertheless, the agent still seized several items from the room that had already been discovered, including the appellant’s laptop. Nothing was done with this computer until over four months later, when NCIS sought and received a search authorization to examine the computer for evidence of child pornography. This search led to the discovery of eighteen images and two videos of child pornography, which were the basis for the appellant’s child pornography convictions.

On appeal, the appellant challenged, among other things, the validity of the search authorization for child pornography. The Court also, sua sponte, raised the issue of the validity of the seizure of the laptop after the appellant revoked his consent to search. However, in its opinion, the Court does not address the issue of whether the laptop was seized prior to the appellant’s revocation of consent, but finds that the laptop would have been inevitably seized. The Court arrives at this conclusion by relying on the testimony of the CID agent, who conducted the search. At the suppression hearing, that agent testified that, had the appellant refused to give consent for the search, the agent would have sought a search authorization. Slip Op. at 5. The Court then finds that had the CID agent sought a search authorization, there would have been probable cause for him to get one. Slip op. at 7. The Court bases this finding on the fact that:

[the Agent’s] training and experience led him to what we believe is a conclusion supported by “common-sense,” namely that those who attempt to locate and then engage in sexual activity with children frequently first conduct some type of computer-based research. Under these facts, where the appellant was accused of multiple brazen attempts to engage in sexual activity with several different boys in several different locations, it is entirely reasonable to conclude that the appellant’s laptop would contain evidence of the alleged crimes, such as evidence of internet searches regarding the location of schools, school release times, or base housing maps. Therefore, under these circumstances, we conclude that probable cause to seize the appellant’s laptop existed and that Agent Rivera would have obtained a command authorization to search and seize the laptop.

Id. Although it is not clear why from the opinion, the Appellant’s laptop was not searched for approximately four months. At that time, the case had been taken over by NCIS and the investigating agent sought a search authorization to search the computer, not for evidence of the alleged crimes described above, but for child pornography. As an aside, it seems like it would cut against the Court’s inevitable discovery holding that apparently no one ever searched the laptop for the evidence that would have given probable cause to seize the laptop. The reason for the request to search for child pornography, as stated in the NCIS agent’s affidavit for the search authorization, was that:

[the agent knew] from training and experience that there is an intuitive relationship between acts such as enticement or child molestation and the possession of child pornography. Child pornography is in many cases simply an electronic record of child molestation. For individuals seeking to obtain sexual gratification by abusing children, possession of child pornography may be a logical precursor to physical interaction with a child and an individual who is sexually interested in children is likely to be predisposed to searching for and receiving child pornography. Additionally, individuals sexually interested in children frequently use child pornography to reduce the inhibitions of those children. Computers have revolutionized the way in which those sources and users interact. Computers and Internet connections are readily available and are tools of the trade for individuals wishing to exploit children and have greatly changed and added to the way in which child pornography is disseminated, collected, and viewed. The relative ease with which child pornography may be obtained on the Internet might make it a simpler and less detectable way of satisfying pedophilic desires.

Slip op. at 9. The affidavit also included detailed information about the NCIS agent’s training and qualification, which showed that she had numerous relevant investigative credentials, an educational background in psychology and forensic psychology, and extensive experience investigating child exploitation cases. Id. The agent also had a lengthy conversation with the commanding officer who issued the search authorization, during which he testified the agent:

helped him “draw a direct line” between “someone who has solicited children . . . to child pornography. She built a nexus for me that it’s a precursor, it’s an enabler. . . . [t]hat it desensitizes the target. . . . She provided me background on predators that indicated that child pornography is a precursor to solicitation.”

Slip op. at 10. At trial and on appeal, the appellant attacked the ensuing search authorization on the basis that:

…probable cause was lacking since the “intuitive relationship” between child enticement and possession of child pornography is nothing more than bare suspicion.


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In a published opinion issued last month in United States v. Hanks, __ M.J. __, No. 20120597 (A. Ct. Crim. App. Nov. 25, 2014) (link to slip op.), a three judge panel of the Army CCA holds that convictions for maiming, in violation of Article 124, and aggravated assault in which grievous bodily harm is intentionally inflicted, in violation of Article 128, that are based on the same underlying act, are neither multiplicious nor an unreasonable multiplication of charges. Judge Campanella writes for the panel.

The decision creates a split between the Army CCA and the Navy-Marine Corps CCA, which has found that “assault intentionally inflicting grievous bodily harm is a lesser-included offense of the more serious crime of maiming.” United States v. Allen, 59 M.J. 515, 531 (N-M. Ct. Crim. App. 2003).

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There are two rules of completeness in the Military Rules of Evidence (M.R.E.). The first is M.R.E. 106 that, like its federal counterpart, states:

Remainder of or Related Writings or Recorded Statements. If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part – or any other writing or recorded statement – that in fairness ought to be considered at the same time.

But the second is a military-specific rule that does not have a counterpart in the Federal Rules of Evidence:

Completeness. If only part of an alleged admission or confession is introduced against the accused, the defense, by cross-examination or otherwise, may introduce the remaining portions of the statement.

M.R.E. 304(h) (2013) (formerly M.R.E. 304(h)(2)). In United States v. Rodriguez, CAAF explained:

When the President promulgated the Military Rules of Evidence in 1980, the rules not only adopted the general rule of completeness in Fed.R.Evid. 106 , but also included Rule 304(h)(2), thereby continuing the special treatment of confessions in the military justice system. The Drafters’ Analysis noted that Rule 304(h)(2) was “taken without significant change” from paragraph 140a(6) of the 1969 Manual. Manual, supra (2000 ed.) at A22-13. The Analysis also observed that in contrast to Rule 106 ‘s focus on written statements by an adverse party, Rule 304(h)(2) “allows the defense to complete an incomplete statement regardless of whether the statement is oral or in writing.” Id.

56 M.J. 336, 341 (C.A.A.F. 2002).

The Army CCA recently applied this military-specific rule to reverse an appellant’s conviction of one specification of possession of child pornography in violation of Article 134, on which he was tried by a military judge alone and sentenced to confinement for eight months and a bad-conduct discharge. The case is United States v. Yancey, No. 20120393 (A. Ct. Crim. App. Dec. 8, 2014) (link to slip op.). Judge Campanella wrote for a three-judge panel of the CCA.

In the certified Air Force case of United States v. Morita, No. 14-5007/AF (CAAFlog case page), CAAF is considering the Air Force CCA’s fascinating opinion that held that subject matter jurisdiction did not exist for the appellee’s submission of fraudulent or otherwise unauthorized travel claims for reserve duty when those claims were submitted while the appellee was in an inactive status. CAAF heard oral argument in the case on October 20, 2014.

The Air Force CCA recently decided another case presenting the same issue:

One issue was identified on appeal: whether the court-martial had jurisdiction over the appellant for a fraudulent travel voucher submitted on 3 June 2010 when his orders expired on 22 May 2010.

We find that the Government failed to prove jurisdiction by a preponderance of the evidence for one specification of fraud and for a part of the charged time frame with one of the larceny specifications. We modify the findings accordingly and reassess the sentence.

United States v. Jewell, No. 38474 (A.F. Ct. Crim. App. Dec. 9, 2014) (link to slip op.). The facts of Jewell are different from the facts of Morita, in that the appellant in Jewell created and submitted fake rental receipts in order to receive undeserved reimbursements (“He submitted 10 vouchers between 1 August 2009 and 30 April 2010 when he was on active duty orders. He submitted the eleventh voucher on 3 June 2010.” Slip op. at 2.). Other differences include that Morita was a contested case while the appellant in Jewell pleaded guilty pursuant to a pretrial agreement, and that Morita also involves the issue of whether the Government should be allowed to present additional evidence on appeal to prove jurisdiction after the issue was litigated at the trial stage.

However, the CCA’s ultimate conclusion is the same as that reached in Morita, and I anticipate the Air Force will certify Jewell just as it certified Morita.

In an unpublished per curiam decision in United States v. Conway, No. 20120708 (A. Ct. Crim. App. Nov. 21, 2014) (link to slip op.), a three judge panel of the Army CCA affirms the appellant’s pleas of guilty to larceny from a bank premised on his unauthorized use of another soldier’s debit card. In doing so, the CCA rejects the appellant’s argument “that the larcenies at issue were obtaining-type larcenies of retail goods of a merchant by false pretenses,” rather than larcenies of property from the bank. Slip op. at 3.

Notably absent is an assertion that the victim was the soldier whose debit card the appellant wrongfully used. This is notable because in October the Army CCA issued a published decision in which it found that the account holder is a proper victim because “one who purchases goods with a debit card obtains those goods in exchange for money which results in an immediate deduction from the cardholder’s account.” United States v. Endsley, 73 M.J. 909, 911 (A. Ct. Crim. App. Oct. 17, 2014). I labelled that decision as erroneous in a post titled: The Army CCA applies Cimball Sharpton to (erroneously) affirm larceny from a debit card holder. And I revisited the issue a few weeks ago while reviewing a recent article published by the Army Lawyer in a post titled: Military justice scholarship about larceny involving credit & debit cards.

In Conway, the CCA’s conclusion that the bank was the victim is based on the appellant’s admissions during the plea inquiry:

Appellant explicitly acknowledged TCF Bank had possession of the U.S. currency and that the U.S. currency also belonged to TCF Bank. Appellant further acknowledged that the U.S. currency came from TCF Bank when he made his unauthorized transactions. These factual admissions create a sufficient factual predicate to appellant’s guilty plea. Put more simply, the clear inference from appellant’s admissions is that TCF Bank suffered a financial loss, and thus was a proper victim in this case. Cf. United States v. Cimball Sharpton, 73 M.J. 299, 301 (C.A.A.F. 2014) (“We view this as a case where such an alternative charging theory should apply, given that it was neither the merchants nor U.S. Bank but the Air Force who suffered the financial loss resulting from [a]ppellant’s larceny.”); United States v. Endsley, __ M.J. ___, 2014 CCA LEXIS 786 (Army Ct. Crim. App. 17 Oct. 2014).

Slip op. at 3. The problem with this conclusion is that for a larceny in violation of Article 121, “there must be a taking, obtaining, or withholding of the property by the thief.” MCM, Pt. IV, ¶ 46.c.(1)(b). The appellant obtained products from the merchants where the debit card was used, he did not obtain money from the bank (and I wonder if the bank really suffered a loss; I think it more likely that the loss was suffered by the merchant or a payment processor). Moreover, the citation to Cimball Sharpton is inapt because Cimball Sharpton turned on the fact that the Air Force was obligated to pay for the unauthorized purchases (and CAAF noted that an Air Force instruction states that “The government must seek restitution from the employee for any losses as a result of their improper transaction.” 73 M.J. at 301, n. 2.). There’s no evidence of such an obligation for the bank to pay the merchants in Conway.

Just as I thought the CCA got it wrong in Endsley, I think the court again gets it wrong in Conway.

Read together, the Army CCA’s opinions in Conway and Endsley imply that there’s a wide range of possible victims in a larceny prosecution involving misuse of a debit card. I think CAAF explicitly rejected this possibility in its summary disposition in United States v. Gaskill, 73 M.J. 207 (C.A.A.F. Jan. 27, 2014):

On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, and in light of United States v. Lubasky, 68 M.J. 260 (C.A.A.F. 2010), we note that the proper victim in Specifications 2, 3, and 4 of Charge V was the merchant who provided the goods and services upon false pretenses, not the debit cardholder/Soldier.  However, the charge sheet, stipulation of fact, and providence inquiry focused on the three Soldiers as victims, and there was no discussion on the record of whether the merchants were victimized. See Lubasky, 68 M.J. at 263.  Accordingly, it is ordered that said petition is granted on the following issue:


The decision of the United States Army Court of Criminal Appeals is reversed as to Specifications 2, 3, and 4 of Charge V, and the findings of guilty as to those specifications are set aside.

Gaskill was also an Army case. The Army CCA’s opinion is available here.

As I wrote in my post analyzing Endsley, a debit card is a credential (that is, a form of identification). When the appellants in Endsley and Conway wrongfully presented another person’s debit card to merchants, they committed obtaining type larcenies from those merchants by false pretenses. The banks were, at most, the victims of a theft of debit services by false pretenses (chargeable as a violation of Article 134. See MCM, Pt. IV, ¶ 78). The account holders were victims only for sentencing purposes. See also Article 6b, UCMJ.

At least, that’s my view. I’ll be watching to see if CAAF agrees.

After a contested trial before a general court-martial composed of officer members, the appellant in United States v. Mitchell, No. 20130033 (A. Ct. Crim. App. Oct. 31, 2014) (link to slip op.), was convicted of a number of offenses. Among those convictions was one for wrongful receipt of stolen property of a value of over $500, in violation of Article 134. The specification alleged that the appellant wrongfully received a long list of items stolen from numerous identified individuals.

But Judge Penland, writing for a three-judge panel of the Army CCA, notes that:

The officer panel in this case returned a verdict of guilty to this specification, without exception. However, there was no direct or circumstantial evidence of the following at trial: that appellant received any stolen property belonging to SPC SS, Mrs. KR, or Mrs. JL; that appellant received a stolen Nintendo 3DS and more than two stolen necklaces belonging to Mrs. ET; or that appellant received a Nintendo DS and more than three stolen Nintendo DS video games belonging to LTC PF. The findings of guilty to these portions of Specification 1 of Charge II are wholly unsupported by the evidence and thus legally insufficient. We are left to wonder how the guilty verdict of this specification in its entirety withstood the scrutiny of the military judge, staff judge advocate, and convening authority during post-trial processing.

Slip op. at 2.

Cases involving Military Rule of Evidence 807 – the residual exception to the hearsay rule – are relatively rare. CAAF last considered the issue in United States v. Czachorowski, 66 M.J. 432 (C.A.A.F. 2008) (discussed here), and it’s been almost four years since the last time we noted a CCA case involving the rule (see this post discussing United States v. Sparks, No. 201000275 (N-M. Ct. Crim. App. Feb. 15, 2011), rev. denied, __ M.J. __ (C.A.A.F. Jul. 27, 2011)).

However, last month the Air Force CCA considered the residual exception in an unpublished opinion in United States v. Betts, 38476 (A.F. Ct. Crim. App. Nov. 20, 2014) (link to slip op.). The court found that a military judge erroneously applied the exception to admit statements during the sentencing phase of a court-martial. However, the court found that this error was harmless because the case involved pleas of guilty and sentencing by a military judge alone, and the judge considered the hearsay for a limited purpose that was cumulative with other evidence.

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