CAAFlog » Courts of Criminal Appeals » CCA Opinions

In a published opinion in United States v. Katso, __ M.J. __, No. 38005 (A.F.Ct.Crim.App. Apr. 11, 2014) (link to slip op.), the AFCCA reverses convictions of aggravated sexual assault, burglary, and unlawful entry, for which the appellant was sentenced to confinement for ten years, total forfeitures, and a dishonorable discharge. A three-judge panel of the court lead by Chief Judge Roan finds that a DNA expert who testified for the Prosecution improperly repeated testimonial hearsay, depriving the appellant of his constitutional right to confrontation, and the panel split 2-1 to find that error prejudicial.

The fact of the case are that:

While celebrating her 21st birthday with several friends, Senior Airman (SrA) CA became intoxicated after consuming between 15 and 20 drinks over the course of the evening. At an off-base bar and unable to return to the base on her own, she was assisted back to her room and fell asleep on her bed. SrA CA testified that she woke up when she felt “someone having sex with [her].” She said she was attacked by someone wearing denim pants, glasses, a beanie cap, and a coat. After SrA CA struggled against him, her assailant left, and SrA CA ran into another room and told a friend she had been raped. SrA CA subsequently identified the appellant as her attacker.

Slip op. at 2. DNA samples were collected from both SrA CA and the appellant. The samples were sent to the United States Army Criminal Investigations Laboratory (USACIL) for analysis, where a forensic examiner named Mr. Fisher conducted an examination and produced a report that showed a match between the appellant’s DNA profile and semen found in the samples taken from CA. In accordance with USACIL procedure, Mr. Fisher’s report was reviewed by a second examiner, named Mr. Davenport.

The Prosecution intended to call Mr. Fisher to testify at trial, but he was unavailable due to a family emergency. So the Prosecution offered the expert testimony of Mr. Davenport instead. Mr. Davenport testified over the objection of the Defense, with the Defense “arguing [that] the appellant’s right to confront Mr. Fisher, the witness who had performed key steps in the DNA analysis that was to be used against him at trial, would be violated.” Slip op. at 2. During a pretrial hearing, Mr. Davenport explained that:

during his technical review of Mr. Fisher’s report, he examined the case file and reviewed the documents submitted by AFOSI to ensure the tag numbers were properly reflected on the report confirming that evidence in fact came into the laboratory and was properly documented. He also examined the report to ensure all steps of the testing process were conducted and recorded, the positive and negative controls were tested, and the lot numbers were written down. As part of the technical review, Mr. Davenport testified that although he did not reconstruct the DNA profiles previously developed by Mr. Fisher (as described in steps 1 through 7 above), he did examine the raw data that was created during the generation of the DNA profile by running the information through a computer program to produce a statistical frequency determination. He personally interpreted the data to determine whether the DNA profiles matched and then compared his findings with those of the original analyst to verify the results. This same process was repeated for all known samples and submitted items of evidence. Following this, Mr. Davenport concluded the semen found on the swabs taken from the victim in this case contained the appellant’s DNA profile.

Slip op. at 5. The military judge denied the Defense motion, concluding that “Mr. Davenport could testify concerning his independent findings without violating the Confrontation Clause. This included providing his independent opinion about the reliability of the testing procedures used, the findings and results, and the frequency statistics related to those findings and results.” Slip op. at 5. Mr. Davenport then testified along these lines at trial. Mr. Fisher’s report was not admitted into evidence.

The three-judge panel of the CCA unanimously concludes that Mr. Davenport improperly repeated testimonial hearsay from Mr. Fisher during his trial testimony, and that this violated the appellant’s right to confrontation. Slip op. at 6; slip op. at 18 (Orr, S.J. concurring in part and dissenting in part).

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CAAF is considering the impact of a variance in the Army case of United States v. Treat, No. 14-0280/AR (CAAFlog case page). A variance is when the offense proven at trial does not conform with the offense alleged in the charge. It is an issue when findings are made by exceptions and substitutions (exceptions are when words are deleted from the language of the specification; substitutions are when words are added).

A variance is material when, “for instance, [it] substantially changes the nature of the offense, increases the seriousness of the offense, or increases the punishment of the offense.” United States v. Marshall, 67 M.J. 418, 420 (C.A.A.F. 2009) (marks and citations ommited). A material variance is fatal (prejudicial) when it “(1) [puts an accused] at risk of another prosecution for the same conduct, (2) mislead[s] him to the extent that he has been unable adequately to prepare for trial, or (3) den[ies] him the opportunity to defend against the charge.” Id. (marks and citation omitted).

In Treat, the Army CCA found no material variance, but it also concluded that even if the variance was material then it was not fatal because it did not prejudice the appellant (due to the nature of the defense he presented at trial). I discussed the CCA’s published opinion in this post, where I disagreed with its finding of no material variance, but I agreed with its conclusion on the issue of prejudice. CAAF’s review will determine which (if either) interpretation is correct.

Now the Air Force CCA joins the variance debate with a published opinion in United States v. Mandy, __ M.J. __, No. 38227 (A.F.Ct.Crim.App. Apr. 10. 2014) (link to slip op.). The appellant – a captain – was convicted of numerous offenses including malingering in that he:

[D]id, at or near Franklin, Tennessee, on or about 21 March 2012, for the purpose of avoiding his duty at Eglin Air Force Base, intentionally injure himself by lacerating his left knee.

Slip op. at 3. But the members made findings that excepted the words “intentionally injured himself by lacerating his left knee,” and substituted the words “feign disability by exaggerating the extent of the injury to his left knee.” The Defense did not object to this change (though it did object to a change the members made to a different charge), and the AFCCA considered this change under the plain error test. The court finds that it is both material and fatal (prejudicial), and dismisses the finding.

The CCA notes that “the statutory language of Article 115, UCMJ, provides for two distinct forms of malingering: feigning illness or injury, or intentionally inflicting self-injury.” Slip op. at 6. Because only the intentionally-inflicting theory was before the members, “the appellant’s conviction of malingering by feigning disability was a conviction of a crime different from the specification that he was expected to defend himself against before the members.” Slip op. at 6. Somewhat ironically, the Prosecution actually withdrew language that alleged the feigning-disability theory before trial. Because of this withdrawal, the CCA concludes that “the appellant was no longer charged with this different theory and was no longer on notice that he needed to defend against it until the military judge’s instructions.” Slip op. at 8.

The CCA then reasses the sentence but provides no relief (the appellant was also convicted of unauthorized absence, two specifications of willfully disobeying a superior commissioned officer, and one specification of dereliction of duty, and he was sentenced to a dismissal and confinement for two years; the convening authority then reduced the confinement to one year).

The recent unpublished opinion in the Army case of United States v. Lovell, No. 2011006 (A.Ct.Crim.App. Mar. 31, 2014) (link to slip op.) is a fascinating read.

Specialist Lovell pleaded guilty at a special court-martial (without the benefit of a pretrial agreement) to desertion with intent to shirk important service, unauthorized absence, and missing movement by design, in violation of Articles 85, 86, and 87. He then elected to be sentenced by a panel of officer members, and was adjudged a punishment of confinement for 6 months, reduction to E-1 and a bad-conduct discharge. The convening authority approved the sentence as adjudged.

The facts were that:

Appellant deployed with his unit to Iraq from March 2004 through March 2005. When he returned, appellant found his wife had developed an illness which caused seizures and resulted in her inability to drive a car. Appellant asserted that if he deployed again, he feared his wife would be unable to care for their two children, a five-year-old and an eighteen-month-old. Unable to obtain a hardship discharge before his next scheduled deployment, appellant chose to absent himself without leave from his unit on 18 September 2006, thereby missing movement on 1 October 2006, and then remained in desertion until 13 July 2011.

Slip op. at 2. It’s reasonable to feel at least a little sympathy for the situation the appellant faced in 2006. However, the appellant squandered that sympathy when he deserted for the following five years. For the Government, this case was as easy as it gets.

But during voir dire of the panel that determined the sentence, one member (a colonel) said, “I filled out my questionnaire and there’s a matter on there that the court may want to consider and I think it may be grounds for challenge.” Slip op. at 2. The matter was that the Colonel obtained conscientious objector status in 1992. The member was not asked any further questions.

Rather than simply ignore the Colonel’s conscientious objector status (and focus instead on the appellant’s half-decade of desertion) the Government counsel challenged the Colonel for cause, stating:

[H]e’s a conscientious objector. I believe that will apparently skew his — his view of an absence-type offense, especially here where the absence involves what is a to-shirk-hazardous — or shirk important service in Iraq and missing movement and that movement we will explain was to Iraq, that he will unfairly mitigate that — that offense based on his belief he brought into the courtroom today.

Slip op. at 3. The Defense objected but the military judge granted the challenge. That is, “the military judge, without explanation, granted the government’s challenge.” Slip op. at 4 (emphasis added).

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Earlier this term, CAAF decided the Air Force case of United States v. Wicks, 73 M.J. 93 (C.A.A.F. 2014) (CAAFlog case page), reversing the Air Force CCA’s decision on an interlocutory appeal of a military judge’s pretrial ruling that suppressed the results of a search of Appellant’s mobile telephone.

The issue in Wicks was whether the Government met its burden to show that a law enforcement search subsequent to a private search did not exceed the scope of the private search. But now the AFCCA considers another trial-stage suppression issue involving a similar question, in United States v. Buford, No. 2013-26 (A.F.Cr.Crim.App. Apr. 4, 2014) (link to order).

In Buford, the accused’s wife “found a ‘fake’ Facebook account that was associated with [his] e-mail address. [She] identified the page as a ‘fake’ account because the name and photo associated with the account were not of the [accused], but the e-mail address belonged to him. She became curious and logged onto [his] e-mail account.” Order at 2. Eventually, she shared the information with Airman First Class  (A1C) “RM,” a male friend of hers who was also an active duty Security Forces member. A1C RM then searched the Facebook account and an email account, preserving screenshots of sexually explicit matters. A1C RM then encouraged the accused’s wife to make a report to law enforcement, and during subsequent searches “A1C RM acted as a ‘conduit’ between [the wife] and the AFOSI agents because ‘he was a cop and he could relate to them.’” Order at 3. Eventually, various electronic media was searched and seized, and the accused was charged with wrongfully committing indecent conduct and wrongfully receiving and possessing child pornography in violation of Articles 120 and 134, UCMJ.

The Defense moved to suppress a broad range of evidence and derivative evidence, and the military judge granted the motion after concluding that A1C RM was acting in an official capacity when he conducted the initial search of the Facebook and email accounts. The CCA affirms this ruling in part.

Notably, the judge and the CCA make a critical distinction between the electronic devices themselves and the online accounts accessed by the devices:

We concur with the military judge’s determination on the issue of consent. AB [the wife] gave consent to the search of the Dell laptop and had both actual and apparent authority over that laptop. Nevertheless, we also agree that consent to search the Dell laptop did not extend to the Facebook and email accounts of the appellee. Consent to search an electronic device does not automatically extend to consent to search all electronic “papers” not contained on the device but accessed through the device. Here, A1C RM had clear indications the “fake” Facebook account and the e-mail account belonged to the appellee. The e-mail account was password protected. The evidence is that A1C RM should have known the e-mail account was not under the authority of AB. Although AB had knowledge of the password, this does not automatically result in a conclusion that she had actual or apparent authority over an otherwise private separate account maintained by her husband. In an Article 62, UCMJ, appeal for a motion to suppress, we review the evidence in the light most favorable to the prevailing party at trial. A third-party’s control over property or effects is a question of fact. We concur with the military judge’s ruling that the Government failed to meet its burden of establishing that the consent exception applied to the search of the Facebook and e-mail accounts.

Order at 6 (citations omitted) (emphasis added).

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In United States v. Jackson, No. 38244 (A.F.Ct.Crim.App. Mar. 19, 2014) (link to unpub. op.), the Air Force CCA affirms the admission of propensity evidence of the appellant’s commission of a prior sexual offense under Military Rule of Evidence 413. The case involved allegations that the appellant sexually assaulted two sleeping women (each of whom awoke to the assault). MRE 413 permits the admission of evidence of other sexual assaults in such a case, and the following evidence about an encounter with a third woman (for which the appellant was not charged) was admitted:

Ms. SG testified that she and her husband, who was active duty at the time, were married in March 2011. In June 2011, she and her husband were experiencing marital difficulties, so her husband moved in with the appellant. Ms. SG’s husband worked with the appellant in Security Forces, and she also worked for the squadron as a civilian armed security officer.

According to Ms. SG, on 15 June 2011, at approximately 0030, she received a call from the appellant who described to her a dream he had the night before. He said that in the dream he came over to her house, snuck in through her window, and climbed into bed with her. He then said, “You can imagine what happened after that,” implying that they engaged in sexual activity. Ms. SG did not take the appellant seriously and replied, “Yeah, whatever,” and quickly ended the conversation.

Later that night, after Ms. SG went to bed, she was awoken by what she thought was her husband crawling into bed with her. She thought it was her husband because he had contacted her earlier, indicating he was going to sleep at her house that night. While Ms. SG was lying on her stomach, the person wrapped his arms around her entire body as if trying to become intimate with her. When she rolled over, she realized it was not her husband, but in the darkness she did not know who it was. She grabbed the person’s throat and started choking him. She yelled, “What the hell are you doing in my house? Get the hell out of my house!” The person replied, “But you feel so good,” and “Just pretend that I’m your husband.” After hearing his voice, Ms. SG realized it was the appellant. She then more firmly told him to leave. The appellant left the bedroom and started to walk down the hallway. However, he returned to the room, leaned over the bed, and whispered to her that he had forgotten his shoes. He then finally left her house.

Ms. SG testified that during this event she was not certain if the appellant touched her breasts or genitals. As she was lying on her stomach, he did not touch anything on her front side; he only touched her back side. Ms. SG claimed she and the appellant had never engaged in any sexual relations, she was not interested in him romantically, and she had not invited the appellant to her home on 15 June 2011.

In addition to Ms. SG’s testimony, the Government submitted Facebook conversations between Ms. SG and the appellant where he discussed his desire to have sex with her.

Slip op. at 7-8. Appellant

The issue before the CCA was whether the military judge erred in admitting this evidence. The appellant asserted that “the alleged touching of Ms. SG does not constitute a sexual act or contact, as defined in Mil. R. Evid. 413. Further, the appellant claims there was insufficient evidence of an attempted sexual contact or act without Ms. SG’s consent.” Slip op. at 9.

But what makes this case really interesting is the two ways the military judge found the evidence admissible.

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A rather unique feature of a court-martial is that both the judge and the members can ask questions of the witnesses. Typically, when a member asks a question, the question is first written down and counsel for both sides have an opportunity to object in advance. Not so when the judge asks questions. The judge just asks away.

This creates the dangerous possibility that a party will object to a question from the judge after it is asked (and maybe even after it is answered). And this possibility is dangerous indeed, as “the influence of the trial judge on the jury is necessarily and properly of great weight and jurors are ever watchful of the words that fall from him. Particularly in a criminal trial, the judge’s last word is apt to be the decisive word.” United States v. McIlwain, 66 M.J. 312, 314 (C.A.A.F. 2008) (marks and citations omitted).

In the case of United States v. Loiacono, No. 201200451 (N-M.Ct.Crim.App. Mar. 25, 2014) (link to unpub. op.), the Navy-Marine Corps Court of Criminal Appeals considered the propriety of questions asked by the military judge during the trial, along with numerous other issues. The appellant was convicted of making a false official statement and engaging in indecent liberties with a child in violation of Articles 107 and 120. But he was acquitted of an additional charge of communicating indecent language.

For the indecent language charge, the appellant was alleged to have made anonymous phone calls to a hotel guest, “AN”:

On 18 August 2011, one of the hotel guests, AN, a German national, received anonymous phone calls soliciting sexual acts. . . . When AN registered his complaint, hotel management investigated and determined that the phone calls had come from within the hotel. . . .

AN checked out of the hotel on 19 August, but returned on 23 August and checked into Room 521. At 23:57 on 24 August 2011, AN received another anonymous phone call and recognized the voice as the same person who had called him on 18 August 2011. After he hung up, AN called AS, a traveling companion who was staying in Room 229. AN had previously told AS about the anonymous phone calls and both agreed that if the phone calls started again, AS would assist AN in discovering the identity of the caller in an effort to make the calls stop.

Slip op. at 3. AN received another such call, arranged to meet the caller in a room, went to the room with AS, turned on the lights, and discovered Appellant in bed. “The appellant then asked ‘what are you doing in my room.’ Both AN and AS left the room.” Slip op. at 3.

But multiple guests complained to the hotel management about anonymous phone calls soliciting sexual acts, and so the hotel began to track room-to-room calls. The Prosecution attempted to admit a log of these calls into evidence:

When AN first complained to hotel management about receiving anonymous and indecent phone calls, he was not the only one who had complained. Prior to trial, the Government provided notice to the defense pursuant to MIL. R. EVID 404(b) that it would seek to admit evidence of other hotel guests who had received anonymous and indecent phone calls. The appellant filed a motion to exclude this evidence primarily citing MIL. R. EVID. 403. The military judge granted the motion and ruled that the room-to-room telephone logs be redacted to show only telephone logs associated with calls to specified rooms.

Slip op. at 27 (citations to record omitted). So, with the other calls excluded, AN testified for the Prosecution at trial. After direct examination, cross examination, and re-direct examination, the military judge questioned AN:

MJ: You said that you and [AS] had talked about the possibility of this person calling you again before you went back to the Marriott, is that correct?

AN: No, sir, we – I arrived at the 27th [sic].

MJ: Okay.

AN: And there I met [AS], and he was the co-pilot of the next day. And we talked about the phone calls and–

CDC: Your Honor, I’m just going to object for hearsay purposes. I know, Your Honor is asking the questions, so, respectfully I objected under hearsay.

MJ: Okay. I’ll actually sustain your objection against me.

MJ: What made you think you needed a plan, in case you got more phone calls? Why did you think you would get more phone calls of a harassing nature?

AN: Because I haven’t been the only one.

CDC: Your Honor, I’m going to ask for a 39(a) [session], Your Honor.

Slip op. at 30. There are a number of obvious issues with this line of questioning. The judge began by asking the witness about an out-of-court conversation with a third party, inviting the hearsay response. Then, after he sustained an objection to his own question, the judge continued to probe out-of-court acts with a compound and argumentative question that not only invited another hearsay response, but also invited reference to the other calls (that were themselves inadmissible).

Because of this exchange, the appellant asserted on appeal that “the military judge abandoned his impartial role when he asked AN a question and AN’s response touched on an evidentiary matter that the military judge had previously ruled inadmissible.” Slip op. at 29.

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One of the most basic skills for a trial lawyer is giving verbal descriptions of in-court actions as they occur, and having a witness mark exhibits when pointing at them, because the microphones that are recording the proceedings for the record can’t see what’s happening in the room.

But over the past few months we’ve seen a rash of appellate opinions that address trial-stage failures at the most basic level. Adding to the list is a recent opinion of the Army CCA in United States v. Wada, No 20120457 (A.Ct.Crim.App. Feb. 28, 2014) (link to slip op.).

Private Wada was tried by a general court-martial composed of members with enlisted representation. He pleaded guilty to numerous offenses, including willfully disobeying a superior commissioned officer, willfully disobeying a non-commissioned officer, resisting apprehension, assault consummated by a battery, and wrongfully communicating a threat. However, he pleaded not guilty to a charge of aggravated assault with a means likely to cause death or grievous bodily harm, and the Government elected to proceed to trial on that charge.

The charge alleged that the appellant dragged and struck the victim with an SUV.

The government case regarding this charge consisted of one witness, SGT JW, who testified using Prosecution Exhibit 1, an aerial photograph of the scene. During his testimony, SGT JW repeatedly referred to Prosecution Exhibit 1, but no markings were placed on the exhibit to memorialize his testimony nor does the exhibit contain a legend identifying the places described.

Slip op. at 2. The Defense called two witnesses who contradicted SGT JW’s testimony. One was a Specialist who was standing nearby and watched the incident. “From his vantage point, it did not look like the vehicle struck the [victim].” Slip op. at 3. The other witness was the victim. She testified that “she was not struck by the SUV; she was not injured in any way by the SUV; she was wearing slippers at the time; and her feet never dragged across the ground.” Slip op. at 3. But on cross-examination the Government impeached the victim’s credibility with the fact that she was the appellant’s dependent and he provided her with financial support. The panel convicted the appellant of the offense.

The CCA reverses for factual insufficiency:

We have weighed the evidence, making allowances for not personally observing the witnesses. Because Prosecution Exhibit 1 contains no legends or markings, we cannot identify most of the areas described by SGT JW or SPC KC, and that is important to our determination regarding whether we can find beyond a reasonable doubt that the SUV actually struck TW. Sergeant JW’s testimony, standing alone, contradicted by the testimony of TW and SPC KC in the absence of any evidence of injury to TW, is not sufficient to prove to us beyond a reasonable doubt that TW was struck by the SUV. Therefore, after a thorough review of the record, we find the evidence factually insufficient to support appellant’s conviction of aggravated assault.

Slip op. at 4 (emphasis added). Now this wasn’t the strongest case for the Prosecution. After all, its single eyewitness was contradicted by a Defense eyewitness and by the victim. But the CCA’s decision explicitly acknowledges the impossibility of recreating the critical testimony of SGT JW, because the exhibit that SGT JW used while he testified was not annotated.

Coincidentally, the events at issue occurred in December 2011. That’s the same month that I criticized the way the military conducts legal training in a post titled: Where are the teachers?

Last month CAAF granted review in the Army case of United States v. Treat, No. 14-0280/AR (CAAFlog case page). Sergeant Treat was convicted of missing movement after pleading not guilty plea at a special court-martial composed of a military judge alone. Specifically, he was charged with missing the movement of “Flight TA4B702″ (that would have taken him from his duty station in Germany to a combat deployment in Afghanistan). But the judge didn’t convict him of missing that aircraft. Rather, the judge convicted him of missing movement “of the flight dedicated to transport Main Body 1 of the 54th Engineer Battalion.”

A three judge panel of the Army CCA issued a published opinion in the case last October, affirming the conviction on the basis that:

While the missing movement charge in this case was perhaps inartfully drafted, referring to a particular flight number, the charge was clearly aimed directly at appellant’s purposeful missing of his unit’s flight. The defense argues that the government prosecution theory changed when the military judge excepted the flight number and substituted a description of what the flight number represented, namely the flight of Main Body 1. The theory of the case, however, remained the same, namely, that the appellant missed his unit’s flight upon which he was required to move and that he did so through his own design.

United States v. Treat, No. 20110402, __ M.J. __, slip op. at 5 (A.Ct.Crim.App. Oct. 25, 2013) (link to slip op.). I disagreed with this conclusion in a post titled: The ACCA’s mistaken conclusion in a missing movement case. CAAF will review the case to determine if the change was a fatal variance that deprived the appellant of his due process right to notice.

But now a different three judge panel of the Army CCA considers the case of Private Wolf, who was also convicted of missing movement at a special court-martial composed of a military judge alone. However, unlike Treat, Wolf pleaded guilty.

Wolf was charged with missing the movement of his unit, Alpha Company. But during the plea inquiry, Wolf explained that he “missed the movement of Charlie Company, or at the very least, a ‘follow-on company’ different and distinct from Alpha Company.” United States v. Wolf, No. 20120385, slip op. at 2 (A.Ct.Crim.App. Feb. 25, 2014) (link to slip op.). The judge who took the plea “never resolved this inconsistency or obtained appellant’s agreement to such a change in the specification.” Slip op. at 2. So the CCA finds a substantial basis in law and fact to question the plea, and rejects it, vacating that conviction for missing movement (though the court affirms numerous other pleas of guilty, and the sentence).

Article 87 identifies three separate movements that may not be missed: those of “a ship,” “[an] aircraft,” or “[a] unit.” These three types comprise two different theories of prosecution: A unit theory and a ship/aircraft theory. The CCA’s mistake in Treat was its conclusion that the theory of the case didn’t change when the judge changed the offense from the ship/aircraft theory to the unit theory. But in Wolf there is no change; the charge and the plea are both clearly based on the unit theory of missing movement.

And yet in Wolf the guilty plea is set aside, while in Treat the contested conviction was confirmed (and now heads to CAAF).

Both the 2006 and the 2012 versions of Article 120, UCMJ, address conduct involving a sexual act and conduct involving sexual contact. Without getting too graphic, a sexual act can occur in two ways, one of which requires no specific intent. But the other way requires an intent to abuse, humiliate, harass, or degrade any person, or to arouse or gratify the sexual desire of any person. Similar intent is required for sexual contact in the 2006 version (while the 2012 version creates two types of sexual contact, with different intent elements).

In United States v. Martin, No. 20110345 (A.Ct.Crim.App. Feb. 28, 2014) (link to slip op.), the appellant was convicted, under the 2006 version, of one specification each of attempted rape, attempted aggravated sexual contact, completed rape, and completed aggravated sexual contact. The completed offenses involved the appellant touching and digitally penetrating the female victim. The attempted offenses involved the appellant’s efforts to initiate intercourse and to place the victim’s hand on his genitals. As such, all of the offenses required some measure of specific intent by the appellant.

The victim was drinking in the hours before the assaults, but the CCA doesn’t discuss her level of intoxication. However the appellant was intoxicated. Very, very intoxicated.

The appellant – a captain – had recently returned from post-deployment leave. He was likely prohibited from consuming alcohol during the deployment, so his tolerance was presumably reduced. He went out with another captain and two lieutenants. They started at a Halloween party hosted by other officers in their unit. There the appellant consumed “beverages containing hard alcohol.” Slip op. at 2. Sometime around 11:00 p.m., after leaving the party and on the way to a bar, the appellant “was noticeably intoxicated.” Id. By midnight, he “was highly intoxicated.” Id. He was vomiting out the window of a taxicab, and,

The cab driver testified that he had seen a lot of intoxicated people, and appellant was “one of the worst ones I have ever seen.”

Slip op. at 2-3. The appellant returned to the house of one of the lieutenants, where he was going to spend the night. The other lieutenant (2LT MF; the victim in this case) was already there, having decided to go to bed early. However, she did not live there, but was sleeping in the resident’s bed (the resident was 1LT MR, another female). The explicit details about what happened next are after the jump.

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In an order issued last week in United States v. McDowell, Military Judge, and DeMario, Real Party in Interest, Misc. Dkt. No. 2013-28 (A.F.Ct.Crim.App. Mar. 13, 2014) (link to order), the Air Force Court of Criminal Appeals denies a Government effort to stop a deposition of an alleged victim of rape. The deposition was ordered by the military judge after the victim did not complete her testimony at the Article 32 pretrial investigation.

The accused is charged with forcible rape of the then 16-year-old girl (identified only as “BB”) in March 2012. BB was a family friend and the accused was going to drive her to a martial arts class they attended together. He went to her house and, allegedly:

[The accused] pinned her against a door or wall with his body weight, pulled down her loose-fitting pants and underwear, pulled down his own pants and inserted his penis into her vagina for about 30 to 60 seconds. She reported that she did not physically resist the accused’s actions because she “froze,” having assumed the appellant would never do something like this. Several months later, after reporting the incident to her boyfriend, her martial arts instructor, and her mother, BB filed a report with law enforcement authorities.

Order at 1-2. Charges were preferred in August 2013 and an Article 32 pretrial investigation was conducted in September 2013. The day before the investigation, the defense counsel (otherwise unidentified) interviewed BB. “After three hours of answering questions from trial defense counsel, BB and her mother ended the interview, noting the hour was late and BB had to meet with trial counsel and ready herself for the hearing the next day.” Order at 2.

During the Article 32 hearing the next day, the investigating officer allowed the defense counsel to ask BB “a number of probing questions on issues not immediately related to the charged act itself.” Order at 2. “Cross-examination took place for a total of more than two hours.” Order at 3. Eventually, informed that she was free to leave whenever she liked, BB simply stopped testifying and left the hearing.

The case was referred for trial by court-martial, and the Defense moved to order a deposition of BB and to either dismiss the charge or reopen the Article 32 pretrial investigation. Over the Government’s opposition:

The military judge granted both defense motions, at least in part. Although he noted that BB had indicated she would be available for trial, he ordered that BB be deposed because she “provided incomplete testimony” at the Article 32 hearing that “denied the accused of a substantial pretrial statutory right: a full opportunity to cross-examine an available witness at the Article 32 hearing.” He concluded that “[d]ue to the exceptional circumstances of this case, it is in the interest of justice that the testimony of [BB] be taken and preserved.” The military judge also ordered the convening authority to re-open the Article 32 hearing so the IO could consider BB’s deposition, and that new pretrial advice under Article 34, UCMJ, be accomplished thereafter.

Order at 4. These rulings were made on November 21, 2013.  The Government filed its petition 16 days later. The defense responded, and the alleged victim (presumably represented by Special Victims Counsel) filed two amicus briefs.

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Last month, in United States v. Easterly, No. 201300067 (N-M.Ct.Crim.App. Jan 31, 2014) (link to slip op.) (discussed in this post), the NMCCA considered the issue of whether the Heritage Brief – a blunt message from the Commandant of the Marine Corps about misconduct and its effect on the Marine Corps – constituted unlawful command influence (UCI) of courts-martial.

In Easterly, the NMCCA assumed without deciding that the brief was sufficient to raise the issue of UCI, and it assumed without deciding that the brief created the appearance of UCI. But the court was convinced beyond a reasonable doubt that UCI did not affect the findings or the sentence, in large part because of concessions the defense made during the trial and the nature of the misconduct encompassed by those concessions.

The NMCCA returns to the issue with United States v. Jiles, No. 201200062 (N-M.Ct.Crim.App. Mar. 6, 2014) (link to slip op.). The Jiles case is notable because at the trial stage, when the defense asserted that the Heritage Brief constituted UCI, the military judge took unprecedented action:

In order to discern the Commandant’s intent behind some statements he made during the Heritage Brief, the military judge ordered that interrogatories be prepared and served on the Commandant.

Jiles, slip op. at 3.

Update: You can read a complete copy of the interrogatories (provided in response to a FOIA request) here.

Because of this extraordinary record, Jiles presents a perfect vehicle for the appellate court to analyze the Heritage Brief, determine the propriety of its contents, consider its effects on the service, and give guidance to the field (including the many defense counsel who continue to litigate the Heritage Brief as an issue of UCI). Except for this fact:

On 9 October 2012, consistent with the terms of the pretrial agreement, the appellant entered guilty pleas to four specifications for failing to obey a lawful general order (sexual harassment) and five specifications of assault consummated by a battery. The remaining charges and specifications were withdrawn and dismissed by the Government in accordance with the pretrial agreement.

Slip op. at 5. As it was in Easterly, where the defense admitted the appellant’s guilt at trial, it’s awfully hard in Jiles to say that the convictions were the product of an unfair trial when the appellant pleaded guilty to the things he was convicted of doing.

The NMCCA’s recent decision in United States v. Brown, No. 201300340 (N-M.Ct.Crim.App. Feb. 28, 2014) (link to unpub. op.), finds no issue with a guilty plea to unauthorized absence where Appellant used a forged birth certificate to obtain authorized maternity leave. The court rejects Appellant’s argument that she was at most guilty of making a false official statement.

The court cites its own prior opinion in United States v. Hall, No. 201200219 (N.M.Ct.Crim.App. Jan. 31, 2013) (link to unpub. op.), where it adopted the reasoning of the Army CCA that “an absence from a unit, organization, or place of duty is without authority if it is preceded by the use of false statements, false documents, or false information provided by or on behalf of an accused.” Hall, slip op. at 4 (marks omitted) (quoting United States v. Duncan, 60 M.J. 973, 976 (Army Ct.Crim.App. 2005) (link to slip op.). The NMCCA’s decisions in both Hall and Brown reject a contrary decision of the Air Force CCA involving a forged Red Cross message. See United States v. Legaspi, 1995 CCA LEXIS 93 (A.F.Ct.Crim.App. 1995) (slip op. not available online).

Best I can tell, CAAF wasn’t petitioned in Duncan. CAAF denied review of last year’s decision in Hall, for what that’s worth. It will be interesting to see if CAAF is interested in Brown. The case seems like a good candidate for review to determine just what constitutes “false information” sufficient to vitiate the effect of actual authorization for an absence. Anyone who isn’t completely honest about their plans when completing a leave request (or perhaps any national capital region commuter who might disingenuously claim “traffic” as an excuse for tardiness) should take note.

In this post last September I discussed a decision of the Army CCA that set aside the findings of guilty in a sexual assault case after concluding that the trial judge improperly excluded evidence of other sexual activity of the two alleged victims under Military Rule of Evidence 412. The military judge in that case balanced the probative value of the evidence against the privacy interests of the victims, as required by M.R.E. 412(c)(3). But CAAF rejected that test in United States v. Ellerbrock, 70 M.J. 314 (C.A.A.F. 2011) (link to slip op.) and United States v. Gaddis, 70 M.J. 248(C.A.A.F. 2011) (link to slip op.), and when the ACCA conducted its own analysis under the proper tests, it found that it was error to exclude the evidence.

Notably, at last year’s Code Committee meeting the JSC announced that it had drafted a “legally-accurate” rewrite of the M.R.E. that was rejected by the National Security Council because it didn’t do enough to protect the privacy rights of an alleged victim. Perhaps this issue will be on the agenda at this year’s Code Committee meeting.

Now the Army CCA considers another 412 ruling that excluded evidence at trial, in United States v. Grimes, No. 20100720 (A.Ct.Crim.App. Jan. 31, 2014) (link to unpub. op.). In a divided opinion, a three-judge panel of the court affirms the military judge’s ruling that prevented the Defense from introducing some of the 412 evidence it sought to admit.

Appellant was convicted of a single specification of rape and sentenced to confinement for three years, total forfeitures, reduction to E-1, and a dishonorable discharge (only 33 months of confinement was approved). The circumstances of the offense involve Appellant awakening the alleged victim in her barracks room, rolling her onto her stomach, and having sexual intercourse with her while she protested. M.R.E. 412 was implicated by a pre-existing sexual relationship between Appellant and the victim (“SPC MT”), about which the victim testified:

SPC MT’s boyfriend did not care for appellant and did not want SPC MT to continue her friendship with appellant. Specialist MT used a false name in her cellular phone contact list for appellant in order to hide the fact that she was communicating with appellant from her boyfriend.

All but one of the [prior] consensual sexual encounters occurred before morning physical training (PT) formation in appellant’s barracks room. Due to time constraints, SPC MT characterized the sex as “pretty much rough and fast.” She further testified that she was up against the wall or face down, and appellant penetrated her vagina from behind. On at least one occasion, SPC MT told appellant “no,” prior to the intercourse, but stated that she did not mean it, and said it in a moaning, heat of the moment, type of way. During the course of their sexual relationship, appellant would send a text message to SPC MT in the early morning hours prior to PT formation, inviting her to his room to “talk. ” In this context, SPC MT stated that “talk” was a euphemism for sex.

During one of the earlier sexual encounters, appellant invited SPC MT over to his barracks room in the evening to watch movies. Specialist MT spent the evening in appellant’s room, and although they engaged in consensual sexual intercourse, SPC MT did not characterize this instance as rough or fast. Instead, as she started to fall asleep while watching a movie, appellant touched and caressed her, she awakened, and they had sex.

Slip op. at 2-3 (emphases added). Notably, MT’s boyfriend departed for training the day before the events leading to the rape conviction, and on the day of the events MT and Appellant exchanged over 50 text messages, and “that at least one of the text messages could have stated ‘we could talk,’ or words to that effect.” Slip op. at 3.

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In what looks like one hot mess of a case, the NMCCA finds that Article 62 authorizes a Government appeal of “the military judge’s decision to deny the Government’s request for an overnight recess and then sua sponte resting the Government’s case over its objection.” United States v. Vargas, No. 201300426 (N-M.Ct.Crim.App. Feb. 28, 2014) (link to unpub. op.).

The appellee is a Marine Staff Sergeant and the case is a special court-martial with members for a single specification of assault consummated by a battery. Trial began on October 22, 2013, and was docketed for three days. The Government planned to call seven witnesses; four on the first day and three on the second day. But “[o]n day one of the appellee’s trial, empanelment of the members was completed by noon and the testimony of the Government’s first four witnesses concluded at approximately 1400.” Slip op. at 2. The other three witnesses weren’t available yet, and so the Government requested a recess until the next morning. The Defense opposed the request, and the military judge denied the request. Then the follow exchange took place:

MJ: So your motion is denied. Do you have anything  else?

TC: Yes, ma’am. Given that ruling by the military judge, at this time, the government intends to offer – to exercise its right to an interlocutory appeal under Article 62 of the Uniform Code of Military Justice. The government intends to provide 72-hour written notice to the military judge upon recess from this court.

MJ: You may do so. But, I am not obliged to continue the case while you do that, and I am declining to exercise that continuance so that you may do that. You may do it simultaneously with this case, but we are going to proceed.

Slip op. at 3. Notably, R.C.M. 908(b)(1) states: “After an order or ruling which may be subject to an appeal by the United States, the court-martial may not proceed, except as to matters unaffected by the ruling or order, if the trial counsel requests a delay to determine whether to file notice of appeal under this rule” (emphasis added). More on this in a moment.

The members were recalled and the military judge rested the Government’s case. The Defense immediately also rested, and then the Defense moved for a finding of not guilty under R.C.M. 917 based on the inadequacy of the case presented by the Government up to that point (though one would think four witnesses would be enough to prove a battery…). But the judge denied the Defense motion.

The judge then acknowledged the requirement of R.C.M. 908 and recessed the case for the Government appeal. But the Government didn’t appeal. Rather, it moved for reconsideration. The next morning (presumably with the three witnesses available and ready to testify) “the military judge made findings of fact and reaffirmed her earlier decision denying the Government’s request to recess the trial.” Slip op. at 5. That would be the recess that would have run from the afternoon before to that very morning (had it been granted, of course). Then the Government appealed. And now the CCA grants the Government appeal.

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In two recent decisions on Government interlocutory appeals under Article 62 the Air Force Court of Criminal Appeals splits the difference, granting one appeal and denying the second. Both cases involve sexual assault allegations, both cases involve evidence that was lost in part due to Government inaction, and both opinions are authored by Judge Weber.

The first case is United States v. Yarber, Misc. Dkt. No. 2013-25 (A.F.Ct.Crim.App. Feb. 20, 2014) (link to order). The appellee is charged with offenses that include two specifications of abusive sexual contact in violation of Article 120. The charges are related to the appellee’s sexual contact with the alleged victim while the two of them were at an on-base dining facility. The victim reported the contact and was interviewed by law enforcement. During the interview she reported that the appellee sent her inculpatory text messages. Law enforcement didn’t retain the phone or do a forensic search, and the phone was eventually lost. However, a Security Forces patrolman did handwrite copies of the messages.

Surprisingly, the military judge responded by prohibiting the alleged victim from testifying at all: “At a pretrial session, the military judge suppressed all testimony from [the alleged victim] after determining the Government violated Article 46, UCMJ; R.C.M. 703; and the Jencks Act when [her] cell phone was lost.” Order at 3. Reversing this ruling, the CCA rejects all three bases after noting that “the military judge orally ruled on the defense’s motion,” and “[h]e did not issue findings of fact – oral or written – and he merely referred to the evidence generally in explaining his ruling.” Order at 5. Key to the CCA’s conclusion is that:

[the patrolman's] transcription of the text messages provided comparable evidence to the lost cell phone that served as an adequate substitute. TSgt BB testified her transcription of the text messages was “98 percent accurate,” with only one alteration that did not change the substance of the messages. A substantially verbatim transcript of text messages is the very definition of “comparable evidence.” The military judge’s analysis completely ignores the fact TSgt BB copied down the text messages essentially verbatim.

Order at 6 (citations omitted). The court also notes the largely inculpatory nature of the messages: “it is difficult to see how the entirety of the text messages – which contained several admissions by the appellee – could have been ‘favorable to an accused’ and therefore exculpatory.” Order at 5. The CCA’s final conclusion is “the military judge abused his discretion in finding the Government violated Article 46, UCMJ; R.C.M. 703; and the Jencks Act. As no violation occurred, there are no grounds to suppress SrA EH’s testimony.” Order at 8.

But it’s a very different story in United States v. Seton, Misc. Dkt. No. 2013-27 (A.F.Ct.Crim.App. Feb. 24. 2014) (link to order) where the military judge dismissed the charge with prejudice as a remedy for the Government’s failure to preserve the video recording from a military dormitory’s surveillance system.

The appellee is charged with one specification of sexual assault in violation of Article 120, “alleging the appellee caused bodily harm to Airman First Class (A1C) BB through nonconsensual vaginal intercourse.” Order at 1. The facts of the “nonconsensual vaginal intercourse” are that:

In the weeks leading up to her birthday, A1C BB and the appellee engaged in some amorous activity short of intercourse on more than one occasion. The night of her birthday, A1C BB entered the appellee’s room and they talked for a short period. They progressed to kissing and then sexual intercourse, which A1C BB agreed was initially consensual. A few minutes after the intercourse began, however, she told the appellee “we shouldn’t be doing this,” because she had a boyfriend, and she wanted to stop, or words to that effect. She later reported that, in her mind, the intercourse (which she said lasted a total of five to ten minutes) was nonconsensual starting when she made these statements. According to A1C BB, the appellee continued for another 30 to 90 seconds past that point before intercourse concluded. Shortly after this incident, A1C BB reported it to her friend and then her boyfriend before making a formal report alleging the intercourse (or some portion thereof) constituted a sexual assault.

Order at 2 (emphasis added). This looks like the so-called “one thrust” theory (i.e., “just one thrust after she says ‘no,’ and it’s sexual assault”), and its weaknesses as a basis for a sexual assault prosecution are obvious. It’s also a terrifying distortion of the law. Of course consent can be withdrawn, and consensual encounters can become non-consensual when one party goes too far, but human sexual encounters just don’t turn on and off like a light switch. Especially mid-coitus.

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