A captain signed the SJAR for a 2d MLG GCM?  Is that normal?

As usual, I’d be interested in Judge Mathews the Greatest’s take on this.  As for me, I’m with NMCCA on Foisy.

PFC Foisy wrote a statement for NCIS.  Two months later, he signed off on a second statement to NCIS about the same incident.  That second statement refers to the first one.  How is the second statement, with its reference to the first statement, to be understood and placed in its proper context unless the first statement is also introduced?  It’s not, rules NMCCA.

PFC Foisy was charged with an orders violation and aggravated sexual assault.  NMCCA’s decision concerns that second charge.  PFC Foisy’s first statement, handwritten less than two days after the alleged sexual assault, described a consensual sexual encounter between him and the alleged victim.  The second statement was executed about two months later when NCIS reinterrogated him.

At trial, the military judge admitted the second statement into evidence at the prosecution’s request.  During its case-in-chief, the defense attempted to introduce the first statement.  The prosecution objected.  The trial defense counsel argued that it should be admitted under the rule of completeness.  The military judge sustained the prosecution’s objection.

NMCCA provides this helpful synopsis of the source of the rule of completeness:  “There are two distinct rules of completeness: Mil. R. Evid. 106 and 304(h)(2).  Both rules require an initial determination that a party has introduced an incomplete item.  Id. at 342.  If the item is incomplete, then the opposing party may invoke Mil. R. Evid. 106. The accused may also invoke Mil. R. Evid. 304(h)(2) when the document at issue involves an admission or confession.  Id.”  Foisy, slip op. at 4.

NMCCA analyzed CAAF’s decision in United States v. Rodriguez, 56 M.J. 336, 339 (C.A.A.F. 2002), and identified six factors that affect a rule of completeness analysis:

(1) Has the prosecution attempted to “pick out the incriminating words in the statement or discussion and put them in evidence while at the same time excluding the remainder of the statement or conversation, in which the appellant sought to explain the incriminating passages”?  (2) Is the appellant’s subsequent statement separate and unrelated from the subject matter of the original confession, or is it part of or the product of the same transaction or course of action?  (3) What is the elapsed time between the two statements, and were they made at different places and to a different set of persons?  (4) Was the second statement made at the specific request of the appellant or the Government?  (5) Was the defense invoking the rule of completeness as a matter of fairness, or merely attempting to present evidence of a defense without subjecting the appellant to cross-examination?  (6) Did the appellant engage in a “pattern of deception with a variety of persons, and then argue that belated candor in a different setting justifies the introduction of otherwise inadmissible hearsay”? 

Foisy, slip op. at 5-6.

NMCCA observed that while the first statement provided information that suggested a consensual sexual encounter, “[t]he admitted statement literally drops the reader into the middle of the interaction at the point of alleged criminality, taking the appellant’s admissions so out of context as to be completely misleading.”  Id., slip op. at 7.

NMCCA reasoned:  “It is ‘manifestly unfair’ to require the appellant to face his inculpatory admissions while simultaneously barring him from introducing the very statement his inculpatory remarks specifically supplemented by reference, especially when, as in this case, the appellant’s story did not change.”  Id., slip op. at 8.

The court held that “where the Government links two statements by constructing them as a statement and a ’supplement’ to that statement, the Government may not deconstruct those statements for purposes of trial where admission of the second statement standing alone would create a misimpression on the part of the fact finder as to an accused’s actual admissions.  The rule of completeness is neither a sword with which an accused might introduce evidence to avoid the crucible of cross-examination, nor a shield behind which the true nature of an accused’s admissions may be hidden.”  Id., slip op. at 9.

NMCCA concluded that the error was prejudicial and set aside the finding of guilty to aggravated sexual assault and the sentence, while authorizing a retrial.

NMCCA yesterday released this published opinion concerning application of the rule of completeness to two related statements obtained by NCIS.  United States v. Foisy, __ M.J. __, No. NMCCA 201000026 (N-M. Ct. Crim. App. July 20, 2010).  Chief Judge Reismier wrote for the court.  Senior Judge Maksym joined the opinion.  Judge Beal agreed with the majority’s analysis, but dissented because of his view of Article 120’s constitutionality, which affected his view of the appropriate remedy.

I may not have time this evening, but I’ll try to post something further if none of my CAAFlog colleagues beat me to it.  It’s an interesting and well-executed decision.

The Coast Guard Court’s newest published opinion, United States v. Daly, __ M.J. __, No. 001-62-10 (C.G. Ct. Crim. App. June 14, 2010), arises from an Article 62 appeal. 

Boatswain’s Mate First Class Daly was charged under Article 134 with wrongfully engaging in romantic relationships with subordinate E-2s and E-3s to the prejudice of good order and discipline.  The Coast Guard Court’s opinion focuses on the Coast Guard Personnel Manual, and considers whether it precludes treating Petty Officer First Class Daly’s conduct as criminal.  Yes, holds the Coast Guard Court, the Coast Guard Personnel Manual “negates criminality” in this context.  Id., slip op. at 8.   Chief Judge McClelland wrote for a unanimous panel.  (The Coast Guard Court helpfully posted relevant parts of the Personnel Manual here.)

The Coast Guard Court explains that paragraph 8.H of the Personnel Manual, “entitled ‘Interpersonal Relationships within the Coast Guard,’ offers wide-ranging guidance on various kinds of relationships among personnel and their various effects, good and bad, on work environment, professional development, good order and discipline, and other matters. Relevant to this case, it creates three categories: acceptable relationships, unacceptable relationships and conduct, and prohibited relationships and conduct.”  Id., slip op. at 3.

The court continues:

PERSMAN paragraph 8.H.2.g sets forth three types of relationships or conduct and explicitly prohibits them, and goes on, “This provision is a punitive general regulation, applicable to all personnel subject to the Uniform Code of Military Justice without further implementation. A violation of this provision is punishable in accordance with the UCMJ.”

PERSMAN paragraph 8.H.2.f describes several circumstances of “romantic” relationshipsand calls them unacceptable, including where the parties “have a supervisor and subordinate relationship (including periodic supervision of duty section or watchstanding personnel)” and where they “are assigned to the same small shore unit (less than 60 members)”. Paragraph 8.H.2.d.3.c says that resolution of an unacceptable relationship is “normally administrative.” PERSMAN section 8.H.6, “Resolving Unacceptable Relationships,” discusses many administrative approaches to addressing unacceptable relationships, including “a direct order to terminate a relationship,” paragraph 8.H.6.c, and “direct[ion] to end a relationship,” paragraph 8.H.6.d. It concludes with paragraph 8.H.6.g, “Disciplinary Action”: “Non-judicial punishment or courts-martial may address fraternization or other unlawful or prohibited relationships or conduct.”

Id. (footnote omitted).  The court notes that “[a]lthough ‘romantic’ is not defined, it surely includes sexual activity.”  Id., slip op. at 3 n.5.

At trial, the defense ackowledged that Petty Officer First Class Daly’s ”conduct was ‘unacceptable’ in that he and each of his sexual partners were assigned to the same small shore unit having less than sixty members.”  Id., slip op. at 3-4. But the defense argued, and the military judge agreed, “that PERSMAN 8.H. made it clear that this conduct was not prohibited, only unacceptable, and that he could not be prosecuted for the conduct, but could only suffer administrative consequences for it.” Id., slip op. at 4.

Upon the prosecution’s appeal, the Coast Guard Court affirms the military judge’s ruling dismissing the charge and its specifications.

The Coast Guard Court emphasizes the requirement that an accused be on fair notice that his conduct is unlawful and finds that the Personnel Manual precluded Petty Officer First Class Daly from being on notice that his conduct was criminal.  The court explains:

In this case, resort to custom is futile because custom has been supplanted by PERSMAN 8.H. 8.H. specifies “prohibited” relationships and conduct, which incur criminal liability. Other specified relationships and conduct, called “unacceptable,” are likely to lead to administrative sanctions. By negative inference, unacceptable relationships and conduct apparently do not incur criminal liability in themselves.  . . .  [I]n effect, 8.H. appears to give servicemembers notice of the noncriminality of unacceptable relationships for the purpose of Article 134.

Id., slip op. at 6 (footnote omitted).

The court finds that its interpretation is corroborated by paragraph 8.H.5.b of the Personnel Manual, which provides:

Personnel finding themselves involved in or contemplating unacceptable relationships should report the situation and seek early resolution from their supervisor, commanding officer, officer in charge, command enlisted advisor, or Coast Guard chaplain. Any potential conflict with Coast Guard policy should be addressed promptly. Commands are expected to assist members in understanding Coast Guard policy requirements and resolving conflicts. Bringing an unacceptable relationship to early Command attention will increase the opportunity for early, positive resolution.

The court explains:

The phrase “Personnel finding themselves involved in or contemplating unacceptable relationships” acknowledges the common human phenomenon of “falling in love,” which can happen regardless of a person’s professional intentions and often cannot be controlled at inception. The later material in section 8.H.6 offers various alternative resolutions of unacceptable relationships. The overall policy appears clearly to avoid criminalization in favor of practical solutions as far as possible. This is understandable, as criminalization, or even uncertainty, would create an enormous incentive to hide such relationships, allowing their many detriments to good order and discipline to blossom, as well as possibly incurring loss of productivity of the parties, who would have to divert some attention to keeping their secret. It would also risk the downfall of otherwise valuable servicemembers whose value to the service might have continued if a solution had been found. It seems eminently reasonable that 8.H. should create a noncriminal “safe harbor,” readily understandable to servicemembers, for persons “finding themselves involved in or contemplating unacceptable relationships.”

Id., slip op. at 6-7. 

The court concludes:  ”we interpret PERSMAN 8.H. as giving servicemembers notice of the noncriminality of unacceptable relationships for the purpose of Article 134. If we did otherwise, we would destroy the ’safe harbor.’”  Id., slip op. at 7.

The court adds that an inappropriate relationship under the Personnel Manual can become the subject of an Article 92 prosecution if an order is given to cease the relationship and that order is disobeyed.

Fireman Garcia’s trial defense counsel should be as angry as Armando Galarraga must be this morning.

Mr. Galarraga, you will recall, was deprived of being immortalized for pitching a perfect game by a blown call at first on the 27th (and should have been final) batter he faced. LT Nathaniel R. Gross, JAGC, USN, and his client Fireman Garcia were deprived of a recording of the witnesses’ testimony at Fireman Garcia’s Article 32 investigation due to a blown call on a petition for extraordinary relief.

Let’s look at what LT Gross did. First he submitted a request to the CA that either the government record the 32 or that he be allowed to do so. Denied. The next day, he submitted a reconsideration request. Denied unless the defense clears ridiculous hurdles. Yeah, you can record the Article 32, the defense was told, just as soon as you finish mucking out the Augean stables. The Garcia defense team then sought extraordinary relief from the Coast Guard Court. Denied. They then filed a writ appeal with CAAF. Denied. At trial, LT Gross moved to reopen the 32. Denied.

When the case went up on appeal, CGCCA played the role of Bud Selig. CGCCA says the ruling was probably wrong, but it’s too late to do anything about it. Do you know when it wasn’t too late to do anything about it? When Garcia’s defense team asked the Coast Guard Court for extraordinary relief which the Coast Guard Court denied. Nor was that the first time the Coast Guard Court declined to review limitations on defense counsel recording of Article 32 hearings. You may recall the denial of extraordinary relief and a writ appeal three years ago in the similar case of United States v. Morton, 65 M.J. 91 (C.A.A.F. 2007).

Extraordinary relief should be rare. And in military practice, it certainly is. But this situation is precisely when a military appellate court should issue a writ. A Coast Guard CA adopts a position regarding taping Article 32s that the Coast Guard Court recognizes would probably be held erroneous if the court were to reach the issue. By the time the case reaches the direct appeal stage, it’ll be too late to do anything about that error. And that abuse of discretion leads to identifiable harm to the accused due to its adverse effect on his confrontation rights.

Instead of following the MLB model, here the Coast Guard should have followed the NHL model, where certainly controversial calls are immediately referred to the NHL offices in Toronto for a definitive resolution.

Through its two Garcia opinions, the Coast Guard Court appears to be attempting to nudge CAs to allow defense counsel to record Article 32s without precondition. If that nudging doesn’t work, the next time a CA denies a defense request to record an Article 32 or grants such a request only if the defense satisfies certain conditions, the defense should once again file a petition for extraordinary relief arguing that CGCCA’s own case law establishes that the issue can’t be addressed adequately during the normal course of appellate review, thus necessitating a writ. CGCCA should then use that petition for extraordinary relief as a vehicle for finally reaching the merits of the question. And if it once again declines to do so, CAAF step in and decide the issue via a writ appeal.

Mr. Galarraga should have a perfect game. And LT Lee should have an audiotape of the witnesses’ testimony at Fireman Garcia’s Article 32 hearing.

I have this strange feeling of déjà vu.

You may recall that in November, the Coast Guard Court issued a published opinion in a case called Garcia expressing “considerable doubt” over the convening authority’s refusal to the allow the defense to record the audio of Article 32 testimony unless:  (a) the defense agreed to “produce a professional, verbatim transcript of the entire hearing from the records at Defense expense”; (b) the defense agreed to “provide a copy of this transcript to the Investigating Officer at Defense expense”; and (c) the defense agreed “that the time required to produce the transcript from the tapes will be considered excludable delay in accordance with R.C.M. 707(c).”  United States v. Garcia, 68 M.J. 561 (C.G. Ct. Crim. App. 2009), petition denied, __ M.J. __, No. 10-0199/CG (C.A.A.F. Apr. 9, 2010).  But despite these doubts, the Coast Guard Court upheld the findings and sentence.  Chief Judge McClelland wrote for a unanimous panel.

Yesterday, the Coast Guard Court issued a published opinion in a case called Garcia expressing doubt over the refusal to allow the defense to record the audio of Article 32 testimony unless:  (a)  the defense counsel agreed “to produce a professional, verbatim transcript of the entire hearing from recordings made by a certified civilian court reporter or trained and qualified U.S. Navy court reporter” at the defense’s expense;  (b) the defense agreed “to submit the name and proof of qualifications of the court reporter to the Article 32 Convening Authority at least five days before the Article 32 investigation”: (c) the defense agreed “to provide a copy of the verbatim transcript to the Article 32 Investigating Officer, at Defense expense, within three weeks of the conclusion of the Article 32 investigation”; and (d) the defense agreed “that the time required to produce and deliver the verbatim transcript will be considered excludable delay in accordance with R.C.M. 707(c).   United States v. Garcia, __ M.J. ___, No. 1317 (C.G. Ct. Crim. App. June 3, 2010).  But despite these doubts, the Coast Guard Court upheld the findings and sentence.  Chief Judge McClelland wrote for a unanimous panel.

In November’s Garcia opinion, the Coast Guard Court held that the anti-recording policy wasn’t unconstitutional, that the military judge didn’t abuse his discretion by denying a defense motion for a new Article 32 due to the anti-recording policy, and that the issue was waived by the accused’s guilty pleas.  But the court added in a footnote, “We find the Government’s arguments attempting to justify the denial unconvincing.  We have considerable doubt that it can be justified, provided the recording process is not disruptive.”  Garcia, 68 M.J. at 564 n.2.

Yesterday’s Garcia opinion revisited the anti-recording policy issue and said a bit more, but still didn’t reach a definitive conclusion.  The Coast Guard Court reiterated the November Garcia opinion’s holding that the anti-recording policy didn’t violate the Constitution.  The Coast Guard Court noted that the military judge discussed the reasonableness of the conditions imposed on the defense in order to record the Article 32 testimony.  The court opined, “It is here, if anywhere, that an abuse of discretion, by the government or by the military judge, might be found.”  Id., slip op. at 9.  The court mused:

The government required that a qualified court reporter be employed, and that proof of qualification be provided. If a transcript was contemplated, this was surely a reasonable condition.

This begs the question: was it reasonable to require that a transcript be produced? The military judge commented that “requiring a transcript be produced rather than waiting for the defense counsel to determine that one is required serves the interest of efficiency. The need for the transcript may not become apparent until trial testimony reveals an inconsistency. Halting the court-martial to produce a transcript at that point would be extremely inefficient and disruptive.” (Appellate Ex. XVIII at 5, fn 4.) The government makes the same argument before us. We find the rationale flawed. The existence of a recording does not, of itself, require a transcript or justify delay while a transcript is produced.[fn 4]

[fn 4]  When the government denied the defense’s initial request to be allowed to tape-record the proceedings, its rationale for the denial was that “a non-professional recording poses the threat of an incomplete and/or inaudible tape of the proceedings. A ‘private’ tape recording is not reliable and is likely to create more issues than it resolves. … Equally important, there should be only one official record of the investigation – the investigating officer’s report. An ‘unofficial’ recording should not be made by someone who will not be able to dedicate themselves to making a verbatim record.” (Appellate Ex. XV encl. 4.) This rationale is equally flawed. The existence of a recording does not mandate that it be given any recognition by a court or a convening authority.

The use of a witness’s Article 32 testimony to impeach the witness at trial would typically involve asking the witness, during cross-examination, about testimony given by the witness at the Article 32 investigation that was inconsistent with the witness’s direct testimony at trial. Counsel would also be able to introduce the prior inconsistent testimony under Military Rule of Evidence (M.R.E.) 801(d)(1), Manual for Courts-Martial, United States (2008 ed.). This could be done by testimony of a person who attended the Article 32 investigation. As we noted in Garcia, “The lack of a [transcript] for either the cross-examination or for the introduction of the prior testimony may be less than ideal, but Appellant does not have a right to the ideal.” Id. at 563 (citing Delaware v. Fensterer, 474 U.S. 15, 20 (1985)).

Accordingly, to the extent that the military judge’s denial of the motion depended on an assumption that a transcript must be produced if defense counsel saw a need for it, we are inclined to view the denial as an abuse of discretion.

Id., slip op. at 10.

But once again the court declined to rule definitively on the issue, concluding that any error in failing to reopen the Article 32 was harmless:  “if the military judge had granted the motion to re-open the Article 32 investigation, we are certain that Appellant would not have gained anything more useful than what he already had. Thus, if the military judge abused his discretion in his denial of the motion, that error was harmless beyond a reasonable doubt.”  Id., slip op. at 11.

The court also rejected a challenge to the new Article 120, relying on CAAF’s decision in United States v. Neal, 68 M.J. 289 (C.A.A.F. 2010).  And the court held that a local police investigation of Fireman Garcia’s offenses hadn’t merged with CGIS’s investigation so the local police weren’t required to comply with Article 31.

AFCCA today issued a published opinion in United States v. Thompson, __ M.J. ___, No. ACM 37380 (A.F. Ct. Crim. App. June 3, 2010).  The opinion discusses what dispositions will and won’t be considered as part of a sentence disparity analysis.  Where a co-actor’s case is resolved by NJP, the Air Force Court holds, it will be considered as part of a sentence disparity analysis.  But where no disciplinary action has been taken against a co-actor, that case won’t be considered for sentence disparity purposes.  Senior Judge Jackson wrote for a unanimous panel.

A1C Thompson pleaded guilty to using ecstasy and marijuana on divers occasions.  At a GCM, he was hammered with confinement for a year, a BCD, total forfeitures, and reduction to E-1.  The CA reduced the confinement by three months in an act of clemency.

AFCCA first rejects some highly case-specific IAC allegations.  The court then addresses the sentence disparity issue.

The court notes that “there is little doubt that A1C JC and A1C JG were the appellant’s co-actors.”  The court continues:

[A]ppellant was court-martialed for his drug use but A1C JG received only non-judicial punishment for his drug use.  Under such circumstances, a sentence comparison is warranted with A1C JG’s case.  Conversely, a sentence comparison is not warranted with A1C JC’s case because there is no evidence that a final disposition has been made in his case, and a sentence comparison of closely related cases is warranted only in cases with a final disposition.

Id., slip op. at 6 (internal citation omitted).

AFCCA then drops a footnote observing: 

Although Airman First Class (A1C) JC testified at the appellant’s court-martial that he had not been tried or held criminally accountable for his crimes and did not expect to be held criminally accountable, there is no evidence in the record that his superiors will not hold him criminally accountable.  We refuse to speculate why A1C JC had not been held criminally accountable for his crimes and reach the only finding supported by the record–there has not been a final disposition in his case.

Id., slip op. at 6 n.6.

AFCCA holds that  there’s a rational basis for the difference between A1C Thompson’s and A1C JG’s punishments and concludes that A1C Thompson’s sentence is appropriate.

AFCCA today issued a 4-page published per curiam opinion to hold that an Article 86 offense doesn’t require the identification of the particular authority who appointed a certain time and place of duty for the accused.  United States v. Fanning, __ M.J. ___, No. ACM S3160 (A.F. Ct. Crim. App. June 3, 2010) (per curiam).

A1C Fanning was charged with and pleaded guilty to, among other offenses, two Article 86 specs.  During the providence inquiry, he apparently stated that an unidentified individual has assigned him to perform duties at the Elmendorf Air Force Base Firehouse Number 3 on 26 July 2008.  He reported late and then left way early, giving rise to the 86 specs.

According to the MCM, both a failure to go and a going from spec includes an element that “a certain authority appointed a certain time and place of duty for the accused.”  Manual for Courts-Martial, United States, Pt. IV, ¶ 10.b.(1) , (2) (2008 ed.).  Here, the providence inquiry didn’t identify a “certain” authority who prescribed A1C Fanning’s place of duty.

It doesn’t matter, held AFCCA.  “As a matter of first impression, we find that the appointing authority’s identity is not an essential element for the aforementioned absence without leave offenses.  Since time immemorial, these offenses have required only that a certain authority appoint a certain time and place of duty for the accused, not a certain named authority.”  Id., slip op. at 3.  “The appellant acknowledged that someone with authority assigned him duties to perform at Elmendorf AFB Firehouse Number 3 on 26 July 2008, and that on that day he reported for duty late and shortly thereafter left his place of duty without authority.  It is immaterial whether or not the appellant knew the identity of the appointing authority–all that was required was the appellant’s knowledge that someone with authority appointed the time and duty location for the appellant.”  Id.

AFCCA issued two brief published opinions today.  I’ll post links and synopses shortly.  (They don’t appear to be on AFCCA’s web site yet, so I’ll upload them onto our site.)

On Wednesday, ACCA issued this unpublished opinion reaffirming the conviction and LWOP sentence of Staff Sergeant John M. Diamond.  United States v. Diamond, No. ARMY 20010761 (A. Ct. Crim. App. May 26, 2010).

After ACCA initially affirmed in a published decision, 65 M.J. 876, CAAF granted Staff Sergeant Diamond’s petition and summarily remanded the case for ACCA to consider this issue:  “WHETHER THE NAMED CO-CONSPIRATOR, MICHELLE THEER, PAID APPELLANT’S CIVILIAN DEFENSE COUNSEL RETAINER AND, IF SO, WHETHER THIS CONFLICT OF INTEREST WAS DISCLOSED TO THE COURT.”  United States v. Diamond, 67 M.J. 249 (C.A.A.F. 2009) (summary disposition).

ACCA ultimately remanded for a DuBay hearing on the questions.  In its new decision, ACCA concludes that Dr. Michelle Theer did provide $1,500 for the retainer fee for Diamond’s civilian counsel, who were defending him for killing Dr. Theer’s husband, Air Force Captain Frank M. Theer.  ACCA also concludes that the conflict wasn’t disclosed to the court-martial.  But, significantly, ACCA finds that the civilian counsel never knew that Dr. Theer was the source of the money for the retainer fee.  Thus the attorneys’ loyalty wasn’t divided between Diamond and Dr. Theer, who was convicted of first-degree murder by a North Carolina state court and is doing a life sentence.  ACCA also indicates that Diamond’s family paid the remaining attorneys’ fees of $11,500.  (Unfortunately, the two appendices refererenced by the decision aren’t available in the online version of ACCA’s opinion.)

Judge Baime wrote for a unanimous panel.