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In United States v. Joseph, No. 201300460 (N-M. Ct. Crim. App. Feb. 19, 2015) (link to slip op.), a three-judge panel of the NMCCA concludes that the finding of guilty of making a false official statement is defective, and must be reversed, because the members:

excepted the following words from the Specification: “made to Naval Criminal Investigative Service agents . . . an official statement to wit.” In place of the excepted language the members substituted the words, “provided an affirmative response to NCIS that she had been raped by [Sgt MP].”

Slip op. at 4. The false statement was an accusation of rape made by the appellant (a female corporal) after she engaged in sexual intercourse with MP (a male, also a corporal at the time). Shortly after that encounter, the appellant discovered MP engaging in sexual intercourse with her female roommate. Then:

After discovering PFC RC [the roommate -z] and Cpl WP [the male -z] together, the appellant left her room and spent the night in her friend, Cpl EM’s, room. Cpl EM testified that the appellant was clearly upset and confided that she caught Cpl WP having sex with her roommate right after she had sex with him. Cpl EM also testified that the appellant said she “was going to do anything to ruin [Cpl WP’s] life.”

Slip op. at 3. A special court-martial composed of officer members convicted the appellant, contrary to her pleas of not guilty, of violating a lawful general order (wrongfully engaging in sexual activity in the barracks) and making a false official statement, in violation of Articles 92 and 107. The members sentenced the appellant to the jurisdictional maximum punishments of confinement for 12 months, reduction to E-1, forfeiture of $1,010.00 pay per month for 12 months, and a bad-conduct discharge. The convening authority approved only 120 days of the adjudged confinement.

Writing for the panel, Senior Judge Fischer finds that the members’ action excepted the element of an official statement from the false official statement charge, resulting in a finding of not guilty of that offense. As a result, the CCA approves only the finding of guilty of the orders violation, and it reduces the sentence to confinement for 30 days, forfeiture of $1,010.00 pay for one month, and reduction in rate to pay grade E-3 (and no punitive discharge).

In United States v. Russell, No. 2014-11 (A.F. Ct. Crim. App. Mar. 3, 2015) (link to slip op.), a three-judge panel of the Air Force CCA denies a Government appeal of a military judge’s ruling that dismissed (what appears to be) a single specification of wrongful use of ecstasy, finding that the appellee was validly discharged when she received her DD-214 and final pay, and rejecting that Government’s argument that “even if delivered, the [discharge] certificate was invalid because it was contrary to [the appellee’s] squadron commander’s intent.” Slip op. at 3.

In Article 56, Congress delegated to the President of the United States the authority to prescribe maximum punishments for offenses under the UCMJ. These maximums are contained in Part IV of the Manual for Courts-Martial. But it’s possible for an accused to be convicted of an offense that does not have a maximum punishment listed in Part IV, and Rule for Courts-Martial 1003(c)(1)(B) provides instructions for how to calculate the maximum punishment for such an offense.

Unlisted offenses are most common under Articles 133 and 134 (where novel charges are possible). But after Congress amended Article 120 effective June 28, 2012, President Obama failed to prescribe maximum punishments for the new offenses until May 15, 2013 (notably, to this day, he has still failed to prescribe model specifications).

That failure caused early problems, including leading one military judge to rule that the maximum punishment for sexual assault in violation of Article 120(b) (2012) is the jurisdictional limit of a summary court-martial (that ruling was reversed after the Government sought extraordinary relief). Other problems persist, in cases such as the recently-decided (but unpublished) United States v. Busch, No. 38530 (A.F. Ct. Crim. App. Feb. 11, 2015) (link to slip op.).

The appellant in Busch pleaded guilty to sexual abuse of a child in violation of Article 120b(c) (2012), in connection with his online communications with a “15-year-old high school student from Florida he never met in person.” Slip op. at 2. Those communication occurred between “on or about 1 February 2013 and 20 May 2013,” slip op. at 1 n.1, raising the issue of the maximum authorized punishment for the offense.

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In United States v. Dundon, No. 38436 (A.F. Ct. Crim. App. Feb. 27, 2015) (link to slip op.), a three-judge panel of the AFCCA considers and rejects the appellant’s post-trial assertion of unlawful command influence related to “a sexual assault prevention all-call briefing that occurred the week prior to trial.” Slip op. at 2. But the panel considers the asserted error despite the fact that the appellant tried to waive the issue at trial:

In a discussion with the military judge, the appellant agreed with his counsel’s assessment that the facts brought out in his case so far did not raise the issue of unlawful command influence. After the military judge explained the potential relief the appellant could receive if such improper influence was found, the appellant agreed he wanted to “affirmatively waive any adjudicatory UCI [unlawful command influence] that may have been brought up by the facts in this case,” in order to retain the benefit of his pretrial agreement. He also signed a document which stated that the pretrial agreement precludes the military judge or any appellate court “from having the opportunity to determine if [he is] entitled to any relief” on his unlawful command influence issue and that he was agreeing to this provision in order to get the benefit of the pretrial agreement.

Slip op. at 4. The CCA notes that CAAF “has not applied waiver to issues of unlawful command influence arising during the adjudicative process, as it has for those arising during the accusatorial process.” Slip op. at 5.

Writing for the panel, Senior Judge Hecker adds this footnote:

Although our resolution of this case ultimately favors the Government, consideration of the case for certification by the Judge Advocate General under Article 67(a)(2) would appear to be particularly appropriate in view of (1) the potential inconsistency between the Court of Appeals’ precedents on waiver, adjudicative unlawful command influence, and member challenges; and (2) the importance of clear guidance to military courts and the service members who appear before them.

Slip op. at 2 n.1 (citations omitted).

In United States v. Villanueva, No. 201400212 (N-M. Ct. Crim. App. Jan. 29, 2015) (link to slip op.), a three-judge panel of the Navy-Marine Corps CCA reverses the appellant’s conviction for male-on-male forcible sodomy after finding that the military judge erred by denying the defense the opportunity to question the alleged victim about the “things he had done while drunk, including placing his penis in another man’s hand during a penis measuring contest.” Slip op. at 2.

At trial, the alleged victim was allowed to testify that he was a heterosexual. The Government then used the alleged victim’s sexual orientation as proof of the charged offense:

In its opening statement, the Government described HN P as someone who “was all about meeting whoever knew the good looking girls,” and was “not into [homosexual activity].” HN P testified during the trial that he “was straight.” This could only have left the members with the impression that, since HN P was not gay, he would not have consented to the sodomy.

Slip op. at 5 (modification in original) (citations to record omitted). But despite this testimony and argument, the appellant was not allowed to cross-examine the alleged victim about his sexuality or his conduct while intoxicated (notably, the alleged victim was intoxicated at the time of the alleged forcible sodomy). Writing for the panel, Judge Holifield explains that this was error because:

These statements go directly to the appellant’s ability to challenge the Government’s proof that the appellant did not hold a reasonable and honest belief that HN P was consenting to the sexual activity. . . . By excluding them, the military judge denied the appellant his right to mount a defense, and allowed the Government to meet its burden based on an incomplete description of events.

Slip op. at 5. The CCA reverses the conviction and authorizes a rehearing.

In addition to the 412 issue, the prohibition of M.R.E. 404(a)(1) immediately comes to mind:

Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

I’m aware of precedent that holds that heterosexuality is a pertinent character trait of the accused that may be presented by the defense under M.R.E. 401(a)(2). See United States v. Gagan, 43 M.J. 200 (C.A.A.F. 1995). But I’m not aware of any caselaw that supports the Government’s implication in this case that the alleged victim was heterosexual and therefore did not consent to the sodomy with the appellant. That seems to be a clear invocation of improper propensity evidence.

We don’t know everything about United States v. Sauk, the case in which the Air Force Court of Criminal Appeals (AFCCA) held an en banc oral argument last week to determine if the Government counsel should be held in contempt for failing to respond to a post-trial discovery order issued by the AFCCA. But I think we know enough to conclude that the Government’s position is untenable.

Note: I use the pronoun “we” because this post is based on the CCA’s initial opinion, its oral argument order, the oral argument audio, and other matters of public record. I have no other knowledge of the Sauk case and I have not discussed it with any of the counsel involved.

Here are the facts as we know them.

The appellant was convicted in 2013, by a general court-martial composed of members with enlisted representation, of involuntary manslaughter, aggravated assault, assault, and negligent homicide, all in connection with the death of the appellant’s infant son. The appellant was sentenced to confinement for five years, reduction to E-1, and a bad-conduct discharge.

In an opinion dated January 20, 2015 (available here), a three-judge panel of the AFCCA rejected numerous assignments of error (including assertions of factual and legal insufficiency) but it dismissed the aggravated assault, assault, and negligent homicide charges on the basis that they were charged in the alternative, citing United States v. Elespuru, 73 M.J. 326 (C.A.A.F. 2014) (CAAFlog case page). The panel then approved the adjudged sentence.

Two days later, the appellant moved to compel post-trial discovery on the basis that a report released by the Department of Defense Inspector General (available here) found significant deficiencies in military criminal investigations of child death cases. The appellant’s motion sought production of documents related to the organizations that investigated the death of his son.

The Government opposed the appellant’s motion for post-trial discovery. The Government also sought reconsideration of the AFCCA’s dismissal of the aggravated assault, assault, and negligent homicide charges.

On February 2, 2015, the AFCCA granted the appellant’s motion for post-trial discovery in part, ordering the Government to disclose whether the appellant was referenced in investigations returned to Air Force investigators. The Government was to comply no later than February 17, 2015. The AFCCA did not act – and still has not acted – on the Government’s request for reconsideration of the dismissal of the offenses charged in the alternative.

The Government sought reconsideration and en banc consideration of the AFCCA’s discovery order. The AFCCA denied that request, notifying the parties of that denial on February 13, 2015. It then extended the deadline for the Government to comply with the order to February 20, 2015.

On February 20, 2015, the Government did not comply with the AFCCA’s order. Rather, it informed the AFCCA that it was considering asking the Judge Advocate General of the Air Force to certify the case to CAAF pursuant to the authority granted by Article 67(a)(2). The appellant responded by asking the AFCCA to set aside the conviction based on the Government’s refusal to comply with the AFCCA’s order. The AFCCA then ordered the Government to show cause by March 3, 2015, why the appellant’s request to set aside the conviction should not be granted.

The Government responded to the show cause order by again asserting that the Judge Advocate General of the Air Force could certify the case, and it claimed that it was allowed 60 days to pursue that certification (a claim that is apparently based on the 60-day deadline in CAAF’s Rule 19(b)(3)). The Government also renewed its previously-denied request for reconsideration of the post-trial discovery order.

Then, on March 6, 2015, the AFCCA issued an order (available here) scheduling oral argument to determine whether the case should be dismissed or whether the Government counsel should be held in contempt. The order provided the above-detailed procedural history of the case.

The argument was held on March 10, 2015. The argument was exclusively a presentation by Government counsel, as the appellant’s counsel elected to make no argument.

But the Government’s presentation was astonishing.

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There’s a lot to say about the recently published decision in United States v. D.W.B., __ M.J. __, No. 201400359 (N-M. Ct. Crim. App. Feb. 26, 2015) (link to slip op.), in which a three-judge panel of the court concludes “that memory recovered by means of a formal psychological process is the product of a scientific process and therefore subject to a baseline reliability determination as a precondition to admissibility,” and it adopts the totality of the circumstances test to determine such reliability. Slip op. at 20-21.

For starters, the case is a Government interlocutory appeal of a military judge’s ruling that suppressed the testimony of an alleged child sexual assault victim. The suppression occurred after the military judge determined that the testimony “was the product of a tainted and highly suggestive psychological process, and therefore inadmissible.” Slip op. at 2. The psychological process at issue is “a psychotherapeutic approach known as Eye Movement Desensitization and Reprocessing (EMDR),” slip op. at 2. Before issuing this ruling, the military judge conducted a hearing to assess the reliability of the child’s testimony based on the totality of the circumstances, and the CCA affirms that process and its result in this case.

But an added twist to the case is that the CCA identifies the accused by only his initials, explaining:

The name of the appellee has been withheld from this opinion to protect the privacy interests of the alleged victim, whose identity would otherwise be apparent.

Slip op. at 1 n.1.

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Exactly three years ago today, in my opinion analysis of United States v. Stewart, 71 M.J. 38 (C.A.A.F. 2012) (CAAFlog case page), I explained that:

The rule of “charge in the conjunctive, prove in the disjunctive” is old and well-settled.

Subsequent reminders that charging in the disjunctive is a bad idea came in United States v. Miles, 71 M.J. 671 (N-M. Ct. Crim. App. Oct. 17, 2012) (discussed here), and United States v. Dietz, No. 38117 (A.F. Ct. Crim. App. Jul. 17, 2014) (discussed here).

Yet a recent unpublished decision from the Navy-Marine Corps CCA reveals that some folks just can’t seem to accept that alternative theories of guilt must be alleged conjuctively, not disjunctively. In United States v. Lesley, No. 201400271 (N-M. Ct. Crim. App. Feb. 26, 2015) (link to slip op.), the CCA reviewes a contested general court-martial involving a single specification of possession of child pornography in violation of Article 134. The specification charged the appellant:

with knowingly and wrongfully possessing child pornography, to wit: digital videos of a minor, or what appears to be a minor, engaging in sexually explicit conduct

Slip op. at 2 (marks omitted) (emphasis added). Appellant was convicted and sentenced to confinement for 18 months and a bad-conduct discharge.

Yet because the Government charged in the disjunctive (rather than charging in the conjunctive – possession of videos of a minor and what appears to be a minor – and letting the court-martial make findings by exceptions if necessary), the CCA concludes that the charge bound the Government to the maximum authorized punishment for what only appears to be a minor engaging in sexually explicit conduct: confinement for four months and forfeiture of two-thirds pay per month for four months (and no punitive discharge). The court then affirms only that much of the sentence. This means that the appellant will be restored to duty and will receive back pay and allowances (though he will remain automatically reduced to E-1, pursuant to ¶ 0152c(1)(b) of JAGINST 5800.7F (JAGMAN)).

The opinion identifies facts that imply that the appellant’s trial defense counsel recognized the problem with the charge in advance (as the defense asserted that the lower maximum punishment applied at sentencing), and it describes the military judge’s unusual efforts to try to fix the problem after the members returned their findings. Yet the prosecution was seemingly oblivious to the problem (not even asking for findings by exceptions).

That the Government would be caught so flat-footed is stunning, particularly since this was a general court-martial (likely with an Article 32 pretrial investigation, and definitely with Article 34 pretrial advice from a staff judge advocate), it involved a relatively senior enlisted member (a Navy E-6), and the materials were offensive enough that the defense both stipulated at trial that they “are actual child pornography within the meaning of Article 134, UCMJ” and then conceded in argument that they involved “real children.” Slip op. at 3.

After he was acquitted of fraud charges by a New York jury in 1987, the New York Times quoted former Labor Secretary Ray Donovan as asking: “Which office do I go to to get my reputation back? Who will reimburse my company for the economic jail it has been in for two and a half years?”

Recently the NMCCA addressed an appellant’s contention (raised in his personal capacity, pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1992)), that the CCA’s online publication of that court’s interlocutory opinion in his case “breached his expectation of privacy, damaged his reputation, impeded his presumption of innocence, and constituted unlawful pretrial punishment.” United States v. Schaleger, No. 201300247 (N-M. Ct. Crim. App. Feb. 19, 2015) (link to slip op.).

I discussed the CCA’s interlocutory opinion in this post. The CCA granted a Government petition for extraordinary relief in the form of a writ of mandamus, finding that the military judge erred in ruling that the maximum punishment for sexual assault in violation of Article 120(b) (2012) was the jurisdictional limit of a summary court-martial. In a lengthy published opinion, the CCA concluded that “at the time the offenses were allegedly committed, the authorized punishment included a dishonorable discharge and confinement for at least 30 years.” United States v. Booker, 72 M.J. 787, 807 (N-M. Ct. Crim. App. 2013).

After the interlocutory issue was resolved, the appellant pleaded guilty to one specification of sexual assault in violation of Article 120. The same military judge whose ruling was reversed by the CCA sentenced the appellant to confinement for three years, reduction to E-1, and a bad-conduct discharge. Pursuant to a pretrial agreement, all confinement in excess of 13 months was suspended by the convening authority.

The appellant’s guilty plea makes his case very different from Ray Donovan’s acquittal. But the CCA analyzes his claim of injury in two parts: Whether its interlocutory opinion affected the presumption of innocence, and whether it constituted unlawful pretrial punishment.

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I anticipate that CAAF will soon issue its decision in the Air Force case of United States v. Piolunek, No.s 14-5006/AF & 14-0283/AF (CAAFlog case page). That case presents a granted issue and a certified issue, both of which challenge the Air Force CCA’s application of CAAF’s decision in United States v. Barberi, 71 M.J. 127 (C.A.A.F. 2012) (CAAFlog case page), where CAAF held that “where a general verdict of guilt is based in part on conduct that is constitutionally protected, the Due Process Clause requires that the conviction be set aside.” 71 M.J. at 129. In Piolunek, the Air Force court held that such an error may be found harmless and the conviction affirmed.

Last week the Army CCA adopted its sister court’s reasoning that in a contested child pornography prosecution, the introduction of images that are not child pornography need not necessarily result in reversal of any resulting conviction.

The Army case is United States v. Doshier, No. 20120691 (A. Ct. Crim. App. Feb. 24, 2015) (link to slip op.).

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In a recent published opinion in United States v. Dean, __ M.J. __, No. 20140058 (A. Ct. Crim. App. Feb. 10, 2015) (link to slip op.), a three-judge panel of the Army CCA finds that the convening authority erred in summarily denying the appellant’s request for deferment of automatic forfeitures and adjudged reduction in grade, but that the appellant failed to show an entitlement to relief.

Judge Lind writes for the panel.

The appellant pleaded guilty, at a general court-martial composed of a military judge alone, to two specifications of possession of child pornography in violation of Article 134. He was sentenced to confinement for seven months, reduction to E-1, and a bad-conduct discharge. After sentencing, the appellant submitted a request for deferment of the imposition of automatic forfeitures of pay and adjudged reduction in rank (both of which occur automatically, 14 days after adjudged). The convening authority (CA) did not explicitly act on the appellant’s request for deferment, but the convening authority did approve the entire sentence as adjudged.

Judge Lind finds that the circumstances of the convening authority’s action on the sentence “sufficiently reflects [that] the CA reviewed, considered, and acted on appellant’s [deferment request].” Slip op. at 4. However, by not separately acting on the deferment request, “the CA summarily denied appellant’s request for deferment of automatic forfeitures and adjudged reduction in grade. This was error.” Slip op. at 5.

Yet the appellant gets no relief because the CCA finds that the appellant must present “credible evidence that the CA’s denial was for unlawful or improper reasons” and further that the appellant “must make a colorable showing of possible prejudice that the CA would have granted the deferment absent consideration of the unlawful or improper reason.” Slip op. at 5 (marks omitted) (citing United States v. Zimmer, 56 M.J. 869 (A. Ct. Crim. App. 2002); United States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998)).

This is an awfully high burden. When, as in Dean, there are no identifiable factors that the convening authority considered before improperly denying a deferment request without stating the reasons why, it’s hard to imagine how any appellant could ever show that the denial was for an unlawful or improper reason and that the convening authority would have granted the request absent that unlawful or improper reason.

But what’s more interesting about this opinion (and perhaps the reason it’s a published decision) is that this burden seems to be a novel interpretation that was made by the Army CCA in Zimmer (where the appellant was granted relief). Because of this, I think Dean deserves review by CAAF.

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In United States v. Smith, No. 201400400 (N-M. Ct. Crim. App. Feb. 10, 2015) (per curiam) (link to slip op.), the NMCCA grants a Government interlocutory appeal of a military judge’s ruling that dismissed some of the charges with prejudice as a remedy for the Government’s loss of an apparently exculpatory surveillance video recordings of the following alleged incidents:

The appellee was a military police patrol supervisor. Lance Corporal (LCpl) JK4 was one of his subordinates and stood watch in the lobby of a secure law enforcement facility known as MDIA. On 28 October 2013, the appellee stopped at the lobby while LCpl JK, Cpl Pelligrino, and Cpl Toner were on duty. While there, the appellee is alleged to have approached the front desk, picked up a bottle of hand sanitizer, pointed it at LCpl JK and squirted some of the contents onto her shoulder, stating “Oops, just splooged on you.” This allegation, in part, formed the basis for sexual harassment and maltreatment charges against the appellee.

On 11 November 2013, the appellee arrived to conduct his rounds at the MDIA lobby. In the presence of Cpl Toner and LCpl JK, the appellee is alleged to have been unable to properly open a door and to have fallen asleep on the desk. This conduct forms the basis of a dereliction of duty charge against the appellee.

Slip op. at 2-3. The facility in which the appellee worked was under video surveillance. The video was reviewed by personnel who stated that the video “is not showing that someone approaching the front desk squirted hand sanitizer on any of the officers” and that the reviewer “did not see the appellee have difficulty opening the door.” Slip op. at 3. However, the video recordings were not preserved, and were destroyed after 30 days.

Independently of the video evidence, the appellee was interrogated and “admitted that he had ‘accidentally squirted’ hand sanitizer on JK and said ‘oops, just splooged on you.'” Slip op. at 4.

The defense moved to dismiss because of the Government’s failure to preserve the video recordings. The military judge found that the lost video recordings were “relevant, necessary, and essential to a fair trial” both for factual and impeachment purposes. Slip op. at 4. Then, in a ruling reminiscent of the Air Force case of United States v. Seton, Misc. Dkt. No. 2013-27 (A.F. Ct. Crim. App. Feb. 24, 2014) (discussed here), aff’d, 73 M.J. 346 (C.A.A.F. May 12, 2014) (summary disposition) (discussed here), the military judge dismissed the affected charges with prejudice. The Government appealed.

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In an unpublished opinion in United States v. Hinojos, No. 201300305 (N-M. Ct. Crim. App. Jan. 27, 2015) (per curiam) (link to slip op.), a three-judge panel of the NMCCA reverses the appellant’s convictions for aggravated sexual assault of a child and abusive sexual contact of a child, both in violation of Article 120 (2006), after concluding that the Government’s DNA expert improperly testified that DNA contained on a buccal swab matched the DNA found in the victim’s underwear. The court concludes that this testimony was improper because:

The buccal swab itself was never offered as evidence and there was no evidence presented to establish that this buccal swab was actually obtained from the appellant.

Slip op. at 5. Further, the court finds:

In the appellant’s case, the Government failed to provide authenticity evidence for the buccal swab allegedly belonging to the appellant. The source and authenticity of the buccal swab was required before the expert could offer an opinion as to a DNA match involving that swab. Accordingly, we hold that the military judge, without such foundation evidence, abused his discretion in allowing the expert to testify that he tested the DNA found in HC’s underwear to the DNA from the buccal swab purportedly belonging to the appellant and that there was a match.

Slip op. at 6. The CCA then considers whether this error was prejudicial, concluding that it was prejudicial because appellant’s identity as the perpetrator was a hotly-contested issue in the case:

The record of trial depicts a case in which forensic evidence served as significant proof that a crime occurred and identified the appellant as the perpetrator. The Government has not met its burden of demonstrating that judicial error in admitting expert testimony without the underlying foundation did not have “a substantial influence on the findings.” McCollum, 58 M.J. at 342. Accordingly, the findings of guilty to the charge and two specifications are set aside.

Slip op. at 8. Notably, the appellant’s counsel objected to the expert’s testimony as lacking foundation. This objection preserved the issue and placed the burden on the Government to prove lack of prejudice. Had counsel failed to object, the appellant would have had the burden to prove prejudice under the plain error standard (as discussed here).

The CCA authorizes a rehearing.

It’s hard to decide whether to laugh or cry when reading United States v. Adams, __ M.J. __, No. 20140377 (A. Ct. Crim. App. Jan. 26, 2015) (link to slip op.). But the case is a novelty for sure.

The appellant twice absented himself from his unit, one time for about 3 months and the other time for about 3 years. For these absences he was charged with desertion; an offense that requires intent to remain away permanently. But the appellant maintained that he always intended to return, and at a general court-martial composed of a military judge alone he pleaded not guilty to the charged desertions, but guilty to the lesser included offense of unauthorized absence.

The Government then proceeded to trial on the greater offense of desertion for both absences. Yet the trial counsel gave no opening statement, presented no evidence, and immediately rested. The Defense case consisted solely of the appellant testifying in his own defense, mainly by asserting that “he never entertained the intent to remain away permanently.” Slip op. at 3. The Defense then rested, and the Government presented no case in rebuttal.

The judge deliberated for 12 minutes before convicting the appellant of desertion for both absences. The adjudged sentence was confinement for 140 days, reduction to E-1, and a bad-conduct discharge.

The case was submitted to the Army CCA pro forma, or “on the merits,” meaning that the appellant submitted the case without any assignment of error and made no request for relief. Nevertheless, in a decision authored by Judge Krauss, the Army CCA reverses the desertion convictions.

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Other commitments force me to put further analysis of this case onto my to-do list, but I want to alert you to the Army CCA’s recent published opinion in United States v. Gifford, __ M.J. __, No. 20120545  (A. Ct. Crim. App. Jan. 22, 2015) (link to slip op.). The appellant was convicted of numerous offenses contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation. Among those offenses was failure to obey a general order in violation of Article 92 for providing alcohol to fellow soldiers who were under the age of 21. Such action was contrary to a 2d Infantry Division policy letter.

On appeal the appellant asserted that his convictions for violating the order must be reversed because “there was no evidence presented that appellant actually knew the distributees were not of legal drinking age.” Slip op. at 2. The CCA notes that the military judge instructed the members that “an element of the Article 92, UCMJ, offenses was that ‘the accused knew that the person named in the specification was under 21 years of age.'” Slip op. at 3. But the CCA rejects the existence of such a knowledge element.

In an opinion written by Judge Haight, the court concludes:

The general order at issue simply prohibits “giv[ing] alcohol to anyone under 21 years of age for the purpose of consumption.” While the purpose behind the distribution is specified, the act of “giving” is not otherwise limited, qualified, or conditioned in any way. Cf. Morissette v. United States, 342 U.S. 246, 270 (1952) (Appellant was indicted on a charge that he did “unlawfully, wilfully and knowingly” convert property.); United States v. Stapp, 60 M.J. 795, 799 (Army Ct. Crim. App. 2004) (In absence of the actual language of the general order alleged to have been disobeyed, this court assumed a knowledge of age requirement, based at least partially on the specification’s use of the word “wrongfully.”).

We readily acknowledge that not only does the law disfavor interpretations that dispense with a mens rea requirement but also that absence alone of such language does not necessarily indicate the proponent intended to eliminate a mens rea element. See Staples v. United States, 511 U.S. 600, 606 (1994). However, we determine that a provision in a military general order which regulates the distribution of alcohol to underage recipients is analogous to a “public welfare offense.” Id. at 607. As such, under these circumstances and given the specific language of this particular general order, we conclude the offense of which appellant was convicted did not include a knowledge of age requirement.

Slip op. at 4-5.

As an initial thought, Judge Haight’s finding that this orders violation is analogous to a public welfare offense makes me wonder if merely furnishing alcohol to a minor is really so very dangerous as to justify such strict regulations. It also reminds me of something that Chief Judge Baker wrote a few years ago:

Notably, Justice Stevens rightly observes that the term “strict liability” may be inaccurate, as in the case of public welfare offenses, because even those offenses require knowledge that one is dealing with an inherently dangerous substance or activity, although they may not require actual knowledge of all the facts. Staples v. United States, 511 U.S. 600, 628 n.9 (1994) (Stevens, J, dissenting).

United States v. Thomas, 65 M.J. 132, 137 (C.A.A.F. 2007) (Baker, J. dissenting).