Appellant was accused of forcible sodomy, but was convicted of consensual sodomy.  That means Lawrence and Marcum had to be discussed.  Read this case for the following:

• A discussion and reiteration of a “private” location is . . .  The discussion may be fruitful beyond an Article 125 case.
• A discussion of and that “the military judge’s ruling that the general disruption to the unit [of the investigation of the charges] implicated the third Marcum prong is untenable (emphasis added).
•   When a TC proffers something to the court, double-tap that for accuracy, and vice-versa.
• Broad talismanic incantations are as unhelpful in analyzing Marcum factors as they are in Mil. R. Evid. 404(b), situations.
• The court avoided the issue of whether Marcum “effectively incorporated new elements into the Article 125, UCMJ, charge and that these new elements should have been properly plead and submitted to the trier of fact. Essentially, the appellant argues that the Marcum factors are questions of fact to be answered by the trier of fact.”  Slip op. at  5, 6 n.1.
• The court avoided the issue:

  I.   POST-LAWRENCE, SODOMY IS NOT A CRIME UNLESS THERE ARE ADDITIONAL CRIMINAL ELEMENTS THAT FURTHER A LEGITIMATE STATE INTEREST.  OVER DEFENSE OBJECTION, THE MILITARY JUDGE INSTRUCTED THE MEMBERS THAT SODOMY WAS A LESSER INCLDUED OFFENSE OF THE CHARGED CRIME OF FORCIBLE SODOMY.  THE MEMBERS THEN RETURNED A VERDICT OF NOT GUILTY TO FORCIBLE SODOMY, BUT GUILTY TO SODOMY.  THE THEORY OF PROSECUTION FOR SODOMY WAS BASED ON ADDITIONAL FACTS ALLEGED BY THE GOVERNMENT AFTER THE TRIAL BEGAN.  THESE FACTS WERE: (1) NOT ELEMENTS DEFINED BY CONGRESS UNDER ARTICLE 125, UCMJ, (2) NOT ALLEGED ON THE CHARGE SHEET; AND (3) NOT SUBMITTED TO THE MEMBERS AND PROVED BEYOND A REASONABLE DOUBT.  IS APPELLANT’S CONVICTION FOR CONSENSUAL SODOMY UNCONSTITUTIONAL IN LIGHT OF THESE DUE PROCESS VIOLATIONS?

In addition to reporting the official test result for any positive sample in Block G, Block H certifies “that the laboratory results . . . were correctly determined by proper laboratory procedures, and that they are correctly annotated.” In the instant case, Block G reflected that the appellant’s sample tested positive for “cocaine,” and Block H was signed by two Final Certifying Laboratory Officials (FCLOs), LT L.A. Estralla, who was in training, and R. Flowers.
Slip op. at 3.

In the instant case, Blocks G and H of the specimen custody document, present a formalized, conclusory affirmation that is identical to the certification in Sweeney. Consequently, we find these two portions of the specimen custody document to be testimonial hearsay and their admission, over defense objection, to be in error: the FCLOs who signed the attestation were not subject to cross-examination, and the testimony of Mr. Sroka as a substitute or surrogate witness did not satisfy the Confrontation Clause. Moreover, the testimony of Mr. Sroka concerning the certification was also admitted in error, as an expert may not act as a conduit for repeating the inadmissible testimonial hearsay of another.
Slip op. at 5.

The exclusion of Block G is significant, as it appears to be a summary of the underlying findings. At this rate, the excluded portions of a urinalysis report may soon exceed the admissible.

However, counsel practicing before the N-MCCA remain on the cutting edge (Fosler was a Marine Corps case, after all), boldly seeking the next radical theory to challenge the conventional wisdom. Alas, in a recent opinion, the N-MCCA stands firm. The court finds that where an accused pleaded guilty to attempts to commit violations of Article 134, in violation of Article 80, it was unnecessary to allege terminal elements in the specification because, in part, “there is no legal requirement to overtly plead, or otherwise include by necessary implication, the particularized elements of the target offense, for attempts.” United States v. Sokolis, No. 201100415, slip op. at 2-3 (N-M Ct. Crim. App., December 27, 2011).

Of course, the N-MCCA also affirmed the findings in Fosler.

The Air Force CCA finds that specifications alleging indecent acts with a child under Article 134, that do not allege a terminal element, provide sufficient notice of criminality, and affirms. The court notes that the appellant did not object to the specifications, did not object to the trial military judge’s instructions regarding the terminal elements, and concedes that specifications challenged for the first time on appeal will be liberally construed in favor of validity. United States v. Wilson, No. 37486 (A. F. Ct. Crim. App., December 15, 2011).

The Army CCA, while evaluating the factual sufficiency of a conviction for violation of a lawful general regulation that prohibited relationships between permanent party personnel and those undergoing initial entry training (IET), the court noted that the accused was a MOS trainee – neither permanent party nor undergoing IET. So, perhaps in the spirit of the season, it rules: “Equating MOS trainees to permanent party – grandmothers to toads?” United States v. Jones, No. 20090401 (A. Ct. Crim. App., December 14, 2011).

The Coast Guard CCA makes quick work of “anomalies” in the record and affirms, despite “ambiguous” findings on one charge, “no announcement” of findings to the specification in another, “irregular renditions of pleas,” a confusing promulgating order, and a charge sheet with a specification (to which the appellant pleaded guilty of a LIO) lined out by the trial counsel with the notation “withdrawn and dismissed without prejudice.” United States v. Barker, No. 1340 (C. G. Ct. Crim. App., November 17, 2011).

The Navy-Marine Corps CCA, summarily affirming findings and sentence, drew a concurring opinion that appears to be a clemency recommendation. Noting the operational history of the appellant (a 12-year Staff Sergeant convicted, pursuant to his pleas, of a series of relatively-small larcenies from the Marine Corps Exchange), including his receipt of a Purple Heart, Judge Harris wonders if faster action by the Exchange and the command wouldn’t have avoided the “truly sad” end of the appellant’s career. United States v. Booker, No. 201100432 (N-M Ct. Crim. App., December 13, 2011).

Brissette arose from an Article 134 indecent acts with a minor spec that didn’t allege any of Article 134′s three clauses. After arraignment — and after Fosler was argued at CAAF but before it was decided — the government moved to amend the spec to add that the conduct was of a nature to bring discredit on the armed forces.  The military judge granted the motion over defense objection.  The accused was convicted of the spec with certain exceptions.  CAAF announced its Fosler decision after trial but before the record had been authenticated.  The defense moved that the military judge reconsider his earlier ruling.  He did and concluded that in light of Fosler, the addition of the “of a nature to bring discredit on the armed forces” language was a major change made post-arraignment over the accused’s objection.  The military judge dismissed the spec without prejudice.  The government appealed.

Today, AFCCA affirmed the military judge’s ruling.  First, the court held that the spec was to be scrutinized strictly because the defense had challenged it at trial:  “trial defense counsel challenged the specification when he objected to the Government’s motion to add the terminal element.  In arguing that the amendment would constitute a major change requiring that ‘the Article 32 be reopened,’ trial defense counsel substantively complained of the same defect as that in Fosler — the charge and specification, as drafted, did not implicate the terminal element, and thus did not provide him with adequate notice as to what he must defend against.”  Brissette, Misc. Dkt. No. 2011-07, slip op. at 4.

The key question in the case, the majority observed, was “whether the terminal element was implied” by the original specification.  The majority rejected the argument that the language “engaging in indecent acts with a minor” necessarily implies Article 134′s “of a nature to bring discredit upon the armed forces” clause.  The majority reasoned:

Alleging that the conduct was “indecent” and committed with a person not yet 16 years old does not expressly “set forth” that the Government would try to prove at trial that the acts alleged resulted in some discredit to the Air Force or the armed services at large.  Surely, one may intuit that the public would generally disapprove of the acts alleged here, and extend some of that disapproval to the Air Force, insofar as the appellee was affiliated with it.  Intuition, however, does not deliver notification, by necessary implication or otherwise, of what element(s) the appellee must defend against.

Id., slip op. at 5-6.  The majority continued:

We are further compelled to disagree that the specification’s allegations sufficiently narrowed down the realm of possible terminal elements the appellee could have been expected to defend against; even if the terminal element(s) could be implied, nothing in the specification indicated which one(s) did.  Arguably, the conduct described could be either conduct prejudicial or service discrediting, or both.  An inescapable point of Fosler is that the appellee had a right to know which.  Fosler, 70 M.J. at 230.

Id., slip op. at 6.

Judge Roan disagreed, concluding that the original specification necessarily implied clause (1) or clause (2) of Article 134:

Based on the explicit misconduct detailed in the specification, I have no difficulty concluding the appellee was given fair notice of both the express and implied elements that he had to defend against.  The specification identifies the purported victim, details the indecent acts he is said to have engaged in, states the extensive time frame the indecent acts were said to have occurred, alleges that the purported victim was under 16 years of age, and indicates the appellee’s military affiliation. Unlike an act of adultery, which standing alone does not constitute an offense under the UCMJ, few could seriously argue that a specification charging an adult male noncommissioned officer with touching a young girl for the purpose of gratifying his sexual desires fails to notify him that such conduct is prejudicial to good order and discipline or of a nature to bring discredit on the armed forces.

Id., slip op. at 7 (Roan, J., dissenting). Judge Roan continued:

Much as a military judge instructs a court-martial panel not to divest themselves from the use of their common sense and knowledge of the ways of the world when evaluating evidence, the same must be said when determining whether an accused alleged to have committed crimes akin to being called a pedophile would know that such acts were also service discrediting.  . . .  The very definition of indecency implicates the morals of society, clearly an indication that appellant’s conduct, as alleged, would call the Air Force into disrepute and thereby be service discrediting if he were convicted.  Hewing closely to the offense specifically charged, the specification fairly informs the appellant of the charge against him, enables him to prepare a defense, and protects him against the possibility of double jeopardy.

Id., slip op. at 8 (Roan, J. dissenting).  He added in a footnote:  “This is not to say that Clause 2 is per se included in an allegation of indecent acts with a minor.  The Government, of course, must always prove beyond a reasonable doubt that the appellee’s conduct was of a nature to discredit the armed forces.  Rather, the issue is simply whether that element is necessarily implied in the charged offense.”  Id., slip op. at 8 n.6 (Roan, J., dissenting).

This week the N-MCCA released an unpublished opinion in United States v. Wilkins, No. 201000289 (N-M Ct. Crim. App., 29 Nov 2011) (hereinafter Wilkins II). This case was considered on remand from CAAF for reconsideration in light of McMurrin, Girouard, Bonner, and Alson, after the N-MCCA affirmed in United States v. Wilkins, No. 201000289 (N-M Ct. Crim. App., 24 March 2011) (hereinafter Wilkins I). In Wilkins I, the N-MCCA found (1) no prejudicial error in the burden-shifting scheme for an affirmative defense under Article 120 because the military judge did not instruct the members of any burden on the defense, and (2) no prejudicial error in instructing the members that abusive sexual contact under Article 120(h) is a LIO of aggravated sexual assault under Article 120(c). The second issue is the subject of the remand.

The facts are best described in Wilkins II:

In June 2009, the appellant, Master-at-Arms Third Class (MA3) L, and several other Sailors from their command took leave to visit a nearby resort area. Their first night at the resort, MA3 L consumed a significant amount of alcohol and had to be escorted to bed. This was at approximately 0500. Soon thereafter, he woke up to a “pressure” around his groin and anus. He looked down and saw the appellant fondling him. MA3 L made it known that the appellant’s actions were unwelcome and the appellant stopped. MA3 L reported the incident the next day.

The appellant was charged under Articles 120 and 125. One specification of the Article 120 charge alleged aggravated sexual assault (10 U.S.C. § 920(c)), that the appellant digitally penetrated MA3 L’s anus while MA3 L was substantially incapable of declining participation or communicating his unwillingness to engage in the sexual act. The other specification of the Article 120 charge alleged abusive sexual contact (10 U.S.C. § 920(h)), that the appellant touched MA3 L’s penis while MA3 L was substantially incapable of declining participating or communicating his unwillingness to engage in the sexual contact. The Article 125 charge consisted of a single specification alleging that the appellant committed anal sodomy by force and without MA3 L’s consent.

The appellant argued at trial that the two specifications under Article 120 were unreasonable multiplications of the same act. The military judge agreed and dismissed the specification alleging abusive sexual contact (alleging the touching of MA3 L’s penis), but kept in place the specification of aggravated sexual assault (alleging the penetration of MA3 L’s anus). Later in the proceedings, however, the military judge noticed that the remaining aggravated sexual assault specification was facially improper. The Government had alleged that the appellant “did engage in a sexual act, to wit: placing his fingers or another object in MA3 L’s anus.” Until that point, no one had noticed that the legislature’s definition of a “sexual act” (“the penetration, however slight, of the genital
opening of another by a hand or finger or by any object,”  Article 120(t)(1)) precluded its application to a crime that does not involve a genital opening. The military judge entered a sua sponte finding of not guilty to aggravated sexual assault, but instructed the jury members that they may find the appellant guilty of the LIO of abusive sexual contact. Trial defense counsel did not object to the judge’s instruction.

The members found the appellant guilty of that specification, as well as to the sole specification under Article 125.

In Wilkins I the N-MCCA reasoned that it was “doubtless [that] the specification could have been drafted better, and a better pretrial screening effort . . . could have detected and corrected the error before arraignment, but we cannot conclude that this specification was so defective as to mislead the appellant.” The court also observed that there was no objection from the defense.

In Wilkins II, the N-MCCA applied a plain-error standard and reviews the elements of  120(c) and 120(h) to conclude that 120(h) is a LIO of 120(c), finding no error in the instructions given to the members, noting:

When we lay the elements of aggravated sexual assault alongside the elements of abusive sexual contact, we see only one elemental difference between the two crimes: aggravated sexual assault concerns itself with sexual acts whereas abusive sexual contact concerns itself with sexual contact. When we compare the definition of a sexual act with the definition of sexual contact, we see two differences: a sexual act necessarily involves genitalia, whereas sexual contact does not; and a sexual act requires penetration, whereas sexual contact requires mere touching.

The court concludes that “[b]y penetrating MA3 L’s anus, he must at least have touched MA3 L’s anus. The appellant therefore met the statutory definition of ‘sexual contact.’”

CAAF granted and summarily remanded on the following issue: “whether the appellant’s right to due process of law was violated when he was convicted for abusive sexual contact as a lesser included offense of aggravated sexual assault.” 70 M.J. 274. The CCA adopts that issue, and phrases its analysis in a due process light that focuses on the acts alleged in the specification and the notice provided to the appellant at trial. However, it omits any discussion of how a specification that alleges an act as a “sexual act,” that does not actually constitute  a “sexual act,” can amount to an allegation of “sexual contact” when the alleged act is not one of the few acts of “sexual contact” subsumed within a “sexual act.”

Put differently, a “sexual act” requires penetration of the vulva or genital opening of another person. Article 120(t)(1). “Sexual contact” encompasses touching of the genitalia, anus, groin, etc., of another person. Article 120(t)(2). Some sexual contact is subsumed within a sexual act; an accusation of penetration of a genital opening (act) necessarily includes touching the genitalia (contact). However, in this case, the specification alleged “did engage in a sexual act, to wit: placing his fingers or another object in MA3 L’s anus.” This is sexual contact alleged as a sexual act where there is no overlap. Perhaps the language of the specification that stated “did engage in a sexual act” was surplussage, but the court does not address it specifically.

The court also finds that “the defense team knew all along that it was defending against digital or object penetration of the victim’s anus, not against penetration of a genital opening.” There’s also the matter of the absence of objection.

However, considering this is the new Article 120, anything’s possible. After all, the N-MCCA once wrote that:

Specification 1 [120(h)] requires proof of facts not required by Specification 2 [120(c)], and vice versa.
United States v. Fairley, No. 200900574, slip op. at 3 (N-M Ct. Crim. App, 30 June 2010) (Rev’d on other grounds).

Footnote: Some research turned up United States v. Clifton, 69 M.J. 719 (C. G. Ct. Crim. App., 2011) (review denied) in which the “Appellant was found guilty of a specification of abusive sexual contact under Article 120(h) by reference to Article (120)(c)(2).” From this alone, I can’t determine if the CGCCA reached the same LIO determination as the N-MCCA.

On 1 November, the Coast Guard Court dismissed a petition for writ of mandamus brought by a CONVENING AUTHORITY, VADM Brown, USCG.  Brown v. Tousley, Misc. Dkt. No. 001-12 (C.G. Ct. Crim. App. Nov. 1, 2011).  It seems that Admiral Brown directed that two courts-martial were to be tried at Alameda, California.  The military judge determined that Seattle would be a better venue and ordered that the trials proceed there.  The military judge cited R.C.M. 801(a) as support for his position.  The discussion to R.C.M. 801(a)(1) states:  “Subject to R.C.M. 504(d)(1), the military judge may also determine the place of trial.  See also R.C.M. 906(b)(11).”  R.C.M. 504(d)(1) says the CA “may designate where the court-martial will meet.”  R.C.M. 906(b)(11) states, “The place of trial may be changed when necessary to prevent prejudice to the rights of the accused or for the convenience of the Government if the rights of the accused are not prejudiced thereby.”  The discussion to that Rule states, “When it is necessary to change the place of trial, the choice of place to which the court-martial will be transferred will be left to the convening authority, as long as the choice is not inconsistent with the ruling of the military judge.”

Because motions to reconsider the military judge’s rulings remained pending, the Coast Guard Court dismissed Admiral Brown’s petition for extraordinary relief.  Does anyone know whether, and if so how, Judge Tousley ruled on the motions to reconsider?

Where all think alike, no one thinks very much.

Although journalist and author Walter Lippmann would have appreciated a splintered NMCCA’s unpublished opinion in United States v. Caldwell, I’m not surprised to see that the court quickly decided on its own motion to reconsider the case en banc.

Private Lazzaric Caldwell, a Marine stationed in Japan and troubled by a host of personal and discipline difficulties, attempted suicide by cutting his wrists.  He had just learned that his commanding officer had ordered him into pretrial confinement.

At court-martial, Caldwell pleaded guilty to order violations, larceny, and self injury.  He pleaded not guilty but was convicted of another specification of an order violation alleging that he used spice.  On appeal, Caldwell raised five assignments of error, among them an assertion that the military judge should have ordered a R.C.M. 706 examination, that the guilty plea to larceny was improvident, and that public policy ought to prohibit conviction for self injury in the case of suicide attempts.  If you’re keeping score at home, that’s three charges, six specifications (it would appear), and five assignments of error.  Now go sharpen your pencil and we’ll add the panel of three CCA judges.

For our purposes, it’s easiest to deal with Senior Judge Maksym’s dissenting opinion first.  Senior Judge Maksym concluded that the trial judge should have ordered a 706 board.  Having reached that conclusion, he was unable to affirm any findings or sentence.

That leaves Senior Judge Booker and Judge Beal to deal with the remaining assignments of error, and when one of them found merit in one, that vote, combined with Senior Judge Maksym’s 706 vote, tipped the balance on the charge.

As Judge Beal would have affirmed all the findings and sentence, the swing vote proved to be Senior Judge Booker’s.  He agreed with the appellant that his role in the larceny of a belt from a retail store–which seemed to essentially amout to a wink and a nod to his girlfriend as she stole the belt–didn’t amount to larceny.  Regarding the self injury charged under Article 134, Senior Judge Booker was unconvinced that the act of self injury in question was sufficently prejudicial to good order and discipline or that it had a tendency to discredit the service. 

Because Senior Judge Booker was confident that the military judge would have at least imposed a bad-conduct discharge for the remaining offenses (Caldwell had a prior summary court-martial in his record) the court affirmed the discharge.  The court set aside a 180-day sentence to confinement.  The day after the date of the opinion NMCCA on its own motion ordered reconsideration en banc.   

The case was decided by the alliterative panel of Chief Judge McClelland, Judge McGuire, and Judge McTague.  Judge McGuire wrote for a unanimous panel.

While I disagree with parts of the court’s Melendez-Diaz analysis — suprise, surprise — what struck me the most forcefully about the opinion was the following line: ”In his sentencing argument, Trial Defense Counsel requested a bad-conduct discharge to ensure appellate review of the case.”  The military has an irrational appellate review system.  It lavishes attention on the propriety of many convictions that were the result of a guilty pleas while providing no judicial review for many contested convictions that may have enormous consequences to the accused — including being the basis for administrative separation from the military or a lifetime of sex offender registration.  The statement above, which was not further remarked upon, highlights the system’s irrationality.  Any justice system in which the defense counsel is arguing for a harsh punishment in order to be allowed to challenge the trial judge’s rulings before a higher court is a bad system.

SrA Barnett was a recruiter who found himself in legal trouble.  When he was implicated in misconduct, he was pulled from recruiting duty and then spent 16 months on Luke Air Force Base’s “Thunder Pride” team.  The Air Force Court’s opinion explains that the team “performs a variety of base details,” no doubt menial in nature.  The defense submitted a motion at trial arguing that SrA Barnett had been subjected to illegal pretrial punishment.  The military judge disagreed, but expressed concern about the length of SrA Barnett’s service on the Thunder Pride team.  According to a base instruction, with certain exceptions, Thunder Pride duty was supposed to be limited to 60 days.   The military judge was also concerned that required legal coordination hadn’t occurred after SrA Barnett was continued on the team past 60 days.  And he found that the command hadn’t sufficiently sought alternative duty for SrA Barnett.  As a result, the military judge awarded 100 days of administrative confinement credit. 

During its presentencing case, the defense presented evidence concerning SrA Barnett’s extended time on the Thunder Pride team.  When he instructed the members concerning sentencing, the military judge informed the members that he had awarded confinement credit:

In determining an appropriate sentence in this case, you should consider that the accused has been granted 100 days of confinement credit.  If you adjudge confinement as part of your sentence, these days will be credited against any sentence to confinement you may adjudge.  This credit will be given by the authorities at the correctional facility where the accused is sent to serve his confinement and will be given on a day-for-day basis.

During sentencing deliberations, the members returned and asked the military judge questions about the 100 days of confinement credit. After some dialogue between the members and military judge, one of the members asked:  “[J]ust for the example, if we consider 300 days as appropriate confinement but we know the hundred days credit is there but we think that the 300 days confinement should be actual confinement so we bump it up to 400 days because we know we’re going to subtract a hundred days; is that legal for us to do?”  The military judge responded:

What I can instruct you in this regard is that you should determine a sentence that you believe is appropriate for this accused for the offenses that he’s been found guilty of, considering all of the evidence that you’ve been presented in the case.  You’ve been provided the fact or circumstance that, if you adjudge confinement, then he will have 100 days of credit toward any period of confinement that is adjudged by the court.

During a follow-on Article 39(a) session, the defense asked the military judge to instruct the members that they are not allowed to determine an appropriate length of confinement and then add 100 days.  The military judge declined to do so, instead reiterating to the members that their “duty is to adjudge an appropriate sentence for this accused that yhou regard as fair and just when it is imposed and not one whose fairness depends upon actions that others may or may not take in this case.”  The members ultimately adjudged a sentence that included 8 months of confinement, a BCD, and reduction to E-1.

 The Air Force Court upheld the military judge’s approach.  The court held that when the defense presented evidence about SrA Bennett’s time in Thunder Pride team purgatory to the members as a matter in mitigation, a consequence is that the military judge should instruct the members that he had received confinement credit as a result.  The Air Force Court said that the defense serves as the “gatekeeper” for evidence concerning the cause of confinement credit.  If the defense chooses to open the gate, a consequence is that the military judge will instruct concerning the confinement credit.  On the other hand, the defense can leave the gate shut, not discuss the cause of the credit, and not have the members instructed concerning the credit.  The court analogized the situation to instances where the defense reveals to the members that the accused was subjected to nonjudicial punishment for an offense for which the accused is being punished at court-martial.  In such a case, the military judge must instruct the members concerning the credit the accused will receive as a result of the nonjudicial punishment.

The Air Force Court reasoned:  “In this case, where the appellant chose to introduce evidence of the 16 months he spent assigned to the ‘Thunder Pride’ team as evidence in mitigation, we find the military judge had a duty to instruct the members on the administrative credit awarded to they may consider that information during their deliberation on sentence.”  The court added that the military judge’s instruction “did not expressly or by inference invite the members to award extra confinement to compensate for the administrative confinement credit awarded by the military judge pursuant to the Article 13, UCMJ, motion.”  The court concluded, “We find no error in the sentencing instructions given.”

Judge Saragosa wrote for a unanimous panel.

The opinion seems to skirt what I see as the main issue in the case.  It’s fine that the military judge instructed the members concerning the confinement credit.  The idea is that the defense shouldn’t get two bites at the apple — convincing the military judge to reduce the sentence and then convincing members to reduce the sentence further on the same basis.  But that fairness concept should go both ways — the members canceling out the confinement credit is just as unfair as the defense seeking double credit.  Thus, the instruction that the defense requested — that the members be told they can’t determine an appropriate length of confinement and then tack on 100 days — seems correct.  But the military judge refused to give that instruction and nothing in the instructions as recounted by the Air Force Court conveyed to the members that they weren’t allowed to try to cancel out the confinement credit — or a portion of it — awarded by the military judge.  Perhaps CAAF will choose to speak to that issue.

In Blunk, the then-Court of Military Appeals recognized a recurring dilemma faced by defense counsel when a client’s foremost desire was to be separated from the service and, in furtherance of that desire, instructed his or her counsel to either: 1) actively seek a punitive discharge, or 2) withhold matters in mitigation or extenuation which might otherwise persuade the sentencing authority against imposing a punitive discharge. During the appellate review of cases following this pattern, appellants would oftentimes seek relief under a claim that their defense counsel was ineffective.

The Blunk court recognized the legitimate desire of trial defense counsel to protect themselves from spurious allegations of ineffective assistance. That court advised practitioners who represent such a client to procure from the client a letter which explains the attorney advised against pursuing a punitive discharge, but has nonetheless complied with the client’s express wishes which were contrary to that advice. The court advised counsel to retain this letter to rebut later claims of ineffectiveness. Over time, trial defense counsel adopted this prophylactic measure to also guard against claims of IAC during the post-trial review of a case wherein the client had similarly instructed his attorney not to submit matters in clemency. Today these types of letters, whether presented to a court-martial during a presentencing case or presented to review authorities during post-trial review, are often referred to in the sea services as “Blunk” letters.

Notwithstanding the legitimacy of the practice for obtaining these types of letters, we emphasize the importance for trial defense attorneys to safeguard the confidentiality of their clients’ privileged communications unless disclosure is authorized, e.g., the client specifically authorizes disclosure, or a client attacks the effectiveness of his or her attorney, thus waiving the privilege.

Unfortunately, since Blunk, improper disclosure of client communications has been a recurring subject of appellate litigation. We emphasize once again, as we did in Williams, “defense counsel should not place such information before the court-martial, the staff judge advocate, or the convening authority.”

United States v. Danley, __ M.J. __; No. 201000677 (N-M Ct. Crim. App., 2011) (slip op. at 4-5) (emphasis in original) (internal citations omitted).

The panel, by a 2-to-1 majority, finds that the appellant showed material prejudice “by simply alerting us to the fact that his defense counsel disobeyed his instructions to not submit any matters and improperly disclosed the appellant’s letter.” Danley (slip op. at 8). However, the only remedy they provide is to return the case for a new convening authority action from a different convening authority (who shall receive a sanitized copy of the record).

In a dissenting opinion, Judge Perlak concurs with the finding of error but disagrees with the finding of material prejudice, noting that the convening authority’s action includes only a generic listing of the matters normally considered by a CA, and there is nothing in the record that indicates that the convening authority considered the trial defense counsel’s unauthorized submission.

AFCCA’s knock-down, drag-out 2-1 IAC opinion in United States v. Datavs is available here.  United States v. Datavs, __ M.J. __, No. ACM 37537 (A.F. Ct. Crim. App. Nov. 9, 2011). 

NMCCA’s 2-1 opinion dealing with a DC’s improper revelation of attorney-client privileged information is available here.  United States v. Danley, __ M.J. __, No. NMCCA 201000677 (N-M. Ct. Crim. App. Nov. 8, 2011).

pro se petitions for Extraordinary Relief in the Nature of Writ of Habeas Corpus and a Writ of Error Coram Nobis under the All Writs Act, 28 U.S.C. §1651(a). In the former, the petitioner alleges that the offenses for which he stands convicted are multiplicious and unreasonably multiplied and, in the latter, he alleges that all specifications fail to state an offense under United States v. Fosler.

United States v. Pack, No. 200400772 (N-M Ct. Crim. App., 31 October 2011) (convicted, contrary to pleas, of six specifications of indecent acts with a child in violation of Art. 134, UCMJ)

The petition for the Writ of Error Coram Nobis was denied as erroneously filed without discussion as to its merits (Footnote 3 reads: “As explained infra, we find a petition for a writ of error coram nobis to be erroneously filed whenever the petitioner remains in custody. Therefore we deny the petitioner’s coram nobis petition without prejudice to his right to refile as habeas corpus.”). However, while the pro se nature of the petition may shed some light on the defense bar’s feelings on the matter, the argument by appellate defense counsel before the N-MCCA in United States v. Hackler, where he distanced himself from the notion that Fosler might apply retroactively, is a pretty clear indicator.

The actual radioactivity of the Fosler fallout remains to be seen.

The case included a conviction to an Article 134 reckless endangerment offense based on the accused’s guilty plea. The reckless endangerment spec didn’t include an Article 134 terminal element. AFCCA upheld the conviction, holding that “appellant’s case is distinguishable from Fosler.” Id., slip op. at 5. The court noted the critical distinction that while the Article 134 spec in Fosler was challenged before findings, “this case involves a guilty plea to an unchallenged specification.” Id.

AFCCA reasoned that “[f]ailure to object to the issue of a specification’s legal sufficiency does not constitute a waiver [of] any such legal sufficiency.” Id., slip op. at 4. But, quoting one CAAF opinion and citing two more — including United States v. Watkins, 21 M.J. 208 (C.M.A. 1986) — the court stated that specs “challenged immediately at trial will be viewed in a more critical light than those which are challenged for the first time on appeal.” Id.

AFCCA determined that both the prejudicial to good order and discipline and service discrediting terminal elements were “necessarily implied” by the reckless endangerment spec’s language. Id., slip op. at 5.

The specification alleges that the appellant, while at Camp Bucca, Iraq, “wrongfully and recklessly . . . point[ed] a loaded Beretta M-9 at [A1C DV] and place[d] the decocking/safety lever in the fire position, [and that his] conduct [was]likely to cause death or grievous bodily harm to [A1C DV].” Without any other information about the attendant circumstances, the ordinary understanding of this language necessarily implies the concepts inherent in clauses 1 and 2 of Article 134, UCMJ, and thus can be interpreted to contain the terminal element. In a deployed wartime environment, there can be few offenses more obviously prejudicial to good order and discipline than one military member pointing a loaded firearm at another fellow Airman to the risk of grievous bodily harm or death. Similarly, the language of this specification necessarily implies that the conduct is of a nature to bring discredit upon the armed forces, as this reckless and risky conduct clearly has a tendency to bring the Air Force into disrepute or tends to lower it in public esteem. Therefore, this charge and specification are sufficient as they allege every element of the Article 134, UCMJ offense expressly or by necessary implication, and fairly informed the appellant of the charge against which he must defend.

Id., slip op. at 6 (alterations in original).

AFCCA also reasoned that “the appellant received further information about the nature of the charge prior to and at his court-martial,” observing that the accused entered into a stipulation of fact that “contained specific information about the terminal elements implied within the charged language. The appellant stipulated that his conduct was prejudicial to good order and discipline” and “would, if known to the general public, tend to lower the esteem of the armed forces.” Id. Also, during the Care inquiry, the military judge advised the accused about the terminal elements and the accused admitted that his conduct satisfied them.  Id., slip op. at 7.

Judge Harney wrote for a unanimous panel.

Like the N-MCCA’s seven similar opinions to date, the ACCA relies heavily on United States v. Watkins, 21 M.J. 208 (C.M.A., 1986) for the principle that “a charge or specification first challenged after trial … is viewed with greater tolerance than one which was attacked before findings and sentence …[and] is liberally construed and will not be held invalid absent a clear showing of substantial prejudice to the accused—such as a showing that the indictment is so obviously defective that by no reasonable construction can it be said to charge the offense for which conviction was had. Roberts, Slip Op. at 4 (internal citations omitted).” The offense at issue in Roberts is breaking restriction.

For those who can’t access the ACCA’s case page, the opinion is also available here: United States v. Roberts, ACCA 20090716.

The petition for CAAF review of Leubecker is still pending.

In related news, I just listened to yesterday’s oral argument at the N-MCCA in United States v. Hackler, which considers this very issue (now argued, I believe, for the first time). The offense in Hackler is also breaking restriction. The audio is available here.

Arguing for the appellant, counsel first argued that the court should not liberally construe the specification (the Watkins rule) despite the appellant’s guilty plea, and second that even with a liberal view, the conviction should not be affirmed. That argument met with immediate hostility from the panel, who focused on whether the appellant waived the error by his plea-bargain and pleas (and probed the standard of review to be applied), and sounded plainly skeptical (“give me an example … where breaking restriction would not axiomatically be prejudicial to good order and discipline”). The response (“it just isn’t”), was somewhat unsatisfying. (rec. at 12:05).

The appellant’s ultimate argument appeared to be that he only entered into the plea agreement because he could not have prepared for trial without knowing the government’s theory of criminality, and thus took advantage of the opportunity to reduce his liability by a plea. This led to questioning of what in the record supports this theory, which caused the appellant’s counsel to state: “it would be unfair to look to the record.” (rec. at 16:58). This, he argued, is because the long-standing practice of omitting terminal element makes the objection meritless, and thus inconsequential; trial defense counsel had no reason to challenge the specification (The argument never addressed whether the plea was somehow involuntary or coerced.)

The panel tried to apply this argument (must disclose the theory of criminality on the charge sheet) to a different offense (larceny) and alternative theories of criminality therein (taking vs. withholding), leading appellant’s counsel to argue that a larceny specification is open to similar attack.

However, the appellant got some traction with the argument that the plea did not amount to a major change because the military judge did not discuss the need for a change with the appellant.

The government opened with the ways Hackler is different from Fosler (breaking restriction, not adultery; guilty plea; no objection). The panel focused on the importance of the objection, or lack thereof, and the government cited to the many citations to Watkins in Fosler, to emphasize the continued vitality of Watkins.

The government also argued for a plain-error standard of review (and the corresponding analysis for prejudice), noting the lack of an objection at trial. This led to a practical consideration of whether the court should look, on a case-by-case basis, to the sufficiency of the notice provided by the specification under the circumstances.

But the panel kept returning to the significance of Fosler, as perhaps a last-word rebuke to the long practice by the Government of omitting the terminal element, and the government kept emphasizing the significant of the objection at trial in Fosler, and how that limits CAAF’s ultimate opinion.

In rebuttal, the appellant returned to the concept that, because the terminal language was widely-regarded as “mere surplusage,” the appellant couldn’t be expected to have objected. Further, the appellant continued to argue the significance of Fosler, so much so that the panel wondered if the appellant wasn’t arguing that Fosler must be applied retroactively, regardless of finality of conviction. The appellant’s counsel, for obvious reasons, distanced himself from this point.

The argument, which was just under an hour, was very good and is worth listening to.

In United States v. Hathorne, Misc. Dkt No. 2001-02 (AFCCA 4 Oct 2011) , the Air Force Court of Criminal Appeals granted yet another government appeal, holding that a convening authority’s order to speak subject to a grant of immunity does not mandate suppression of the immunee’s otherwise-admissible confession, if the confession was given without knowledge of the grant and order.

Airman First Class (A1C) Hathorne was identified as a potential witness in the court-martial of another airman, A1C JF, scheduled to be tried on drug charges at Holloman AFB, New Mexico.  During the course of preparing for trial, base officials learned that A1C Hathorne himself apparently used illegal drugs, and — fearing he would not cooperate in A1C JF’s prosecution — decided to ask the convening authority to grant him immunity.  On 3 Feb 2011, the convening authority sent the base legal office a memorandum containing a grant of immunity for A1C Hathorne and an order to answer questions from counsel.

The next day, trial counsel interviewed A1C Hathorne without informing him of the convening authority’s correspondence.  A1C Hathorne was advised of his rights, waived them, and confessed to a single use of cocaine in 2010.  A1C Hathorne did not learn of the grant of immunity until four days later, when A1C JF’s counsel provided him a copy during their interview with him.  A1C JF pled guilty pursuant to a PTA, and a month later, the government preferred a single charge and specification of wrongful use of cocaine against A1C Hathorne.

At trial, the military judge found that the trial counsel’s actions, while “technically … correct under the Constitution and Article 31,” were inconsistent with “the law and fundamental notions of fairness.”  The grant of immunity was effective by its plain language when it was issued, the military judge ruled, and the government had not met its burden under Kastigar v. United States,  406 U.S. 441 (1972), of showing that its evidence against the accused was derived from a source wholly independent of the immunized statement.   Accordingly, the judge ordered dismissal of the charge and its specification with prejudice.

The service court framed the trial judge’s order thusly: 

The military judge found that from the moment the GCMCA signed the grant of testimonial immunity on 3 February 2011, the appellee’s statements were cloaked with immunity despite the fact that the appellee was unaware of the immunity and order, did not rely upon it, and after being read his Article 31 rights, waived his right against self-incrimination and confessed his use of cocaine to the trial counsel. 

Against that backdrop, the CCA’s decision reversing the trial judge is not surprising.  Because the accused had never asserted his right against self-incrimination prior to questioning by the trial counsel, the CCA held, there was no refusal for the grant and order to overcome, and because the accused did not rely on the grant and was unaware of the order, his confession was voluntary.  The service court also concluded that the trial counsel’s decision to pocket the grant and order and to use them only if the accused refused to speak was within the trial counsel’s authority and not inconsistent with the convening authority’s intent — i.e., to overcome refusal and compel answers from the accused.

We learn from the opinion that Airman First Class Scott M. Dease, Jr., consented to the search and seizure of his urine for testing.  Five days after the specimen was collected, while it was awaiting shipment to the Air Force Drug Testing Laboratory (AFDTL), A1C Dease revoked his consent to search or perform “any other procedure.”   The Air Force tested his urine specimen anyway and AFDTL reported a positive test for cocaine.  A1C Dease then confessed, presumably (although the opinion doesn’t make this clear) on being confronted with the positive test result.

At trial, the military judge granted the accused’s motion to supress the test results and the confession.  Rejecting the government’s analogy to California v. Greenwood, 486 U.S. 35 (1988), in which the Supreme Court held that a person loses his reasonable expectation of privacy in his rubbbish when it is placed on the curb for collection, the trial judge instead relied on United States v. Pond, 36 M.J. 1050 (recon) (AFCMR 1993), to conclude that an accused “maintains a significant privacy interest in the urine sample.”  The governmment appealed pursuant to Article 62, UCMJ, and the service court reversed.

AFCCA held that once a sample is validly obtained, either by consent, by a warrant, or under exigent circumstances supported by probable cause, the reasonable expectation of privacy no longer exists.  Unlike other property which an accused might reasonably expect to be returned, “urine is by definition a waste product which will ultimately be destroyed and in which no continuing reasonable expectation of privacy exists.”  Human experience, the court wrote, is to abandon such excreta, not to preserve it.  The accused thus abandoned his expectation of privacy in his urine specimen when he delivered it to the government for testing.  A1C Dease had no Fourth Amendment protection to be reclaimed by revoking his consent.

NOTE:  The Dease decision appears to be one of the first participated in by AFCCA reserve Judge Melissa Saragosa.  In civilian life, Judge Saragosa is … well, still Judge Saragosa, presiding in Justice Court in Clark County, Nevada.  A welcome to the bench would be a trifle redundant under the circumstances, but we’ll do it anyway:  welcome aboard!

• United States v. Scaringello, No. 201100192
• United States v. Simmons, No. 201100044
• United States v. Thaxton, No. 201100261

Each follows the reasoning of prior cases, essentially that: (1) the accused was on notice, considering the greater tolerance exercised when a specification is first challenged on appeal, because of the pretrial agreement, the assistance of counsel, and the explanation of the elements by the military judge, and (2) even if he was not on notice, he consented to a major change when the military judge informed him of the elements of the otherwise uncharged offense (which was implicitly referred by the convening authority’s acceptance of the pretrial agreement).

This brings the post-Fosler, missing terminal element, guilty-plea affirmation total to 9 (8 NMCCA, 1 ACCA). Correction: total of 6, all NMCCA. An additional 2 contested cases were reversed by NMCCA on Fosler grounds.

Additionally, the NMCCA released its (also unpublished) opinion in an interesting Jones non-trailer. United States v. Rauscher, No. 201000684, involves an accused who was charged with assault with intent to commit murder, in violation of Article 134, but was convicted of aggravated assault, in violation of Article 128, as a lesser included offense.  The NMCCA found that based upon the facts of the case, and specifically the discreet facts alleged in the specification at issue, the LIO was proper, and affirmed the conviction. Of note, the 134 specification did not state the terminal element…

As we know, Fosler changed that.

The opinion was brazen, casting aside nearly 60 years of jurisprudence. See, e.g., United States v. Marker, 1 U.S.C.M.A. 393, (1952)). The majority finds this result compelled by its renewed interest in United States v. Schmuck, 489 U.S. 705 (1989), which adopted the elements test for lesser-included offenses under Fed. R. Crim. Proc. 31(c); yet it gives lip service to contemporaneous precedent that applied that rule to offenses under the UCMJ. See, e.g., United States v. Foster, 40 M.J. 140 (C.M.A.1994). This is in stark contract to the deliberateness of the Supreme Court in Schmuck. See Schmuck, 489 U.S. at 716 (“[the elements test] is consistent with past decisions of this Court which, though not specifically endorsing a particular test, employed the elements approach.”).

Still, Fosler is part of a larger effort to return to the principles of the elements test adopted and then abandoned so long ago; to reconcile Foster, Teters, Hudson, and the many others that constitute the “Hydra” of lesser-included offenses under the Code; to remove the “outsize pair of spectacles.” See, e.g., United States v. Jones, 68 M.J. 465, 468-469 (C.A.A.F., 2010). But Fosler risks replacing the Hydra with a Medusa. The opinion had a virtual tornado effect, with 51 remands to the courts of criminal appeals that will force the ad hoc development of practical rules to address the myriad circumstances the court of appeals neglected when it ruled only that “because allegation of the terminal element is constitutionally required and the Government failed to satisfy that requirement here, the military judge’s decision to deny Appellant’s motion to dismiss was in error.” Fosler, 29 M.J. at 233.

Since the court of appeals decided Fosler on 8 August, the CCAs analyzed and applied the case six times (by my count – please let me know if I missed any), all unpublished. The breakdown is five N-MCCA cases, and one ACCA case, as follows:

• United States v. Thomas, No. 20100463 (A.Ct.Crim.App., 24 Aug 2011) (convicted pursuant to pleas) – Affirmed
• United States v. Gibson, No. 201000669 (N.M.Ct.Crim.App., 30 Aug 2011) (convicted pursuant to pleas) – Affirmed
• United States v. Lonsford, No. 201100022 (N.M.Ct.Crim.App., 30 Aug 2011) (convicted contrary to pleas) – Reversed
• United States v. Leubecker, No. 201100091 (N.M.Ct.Crim.App., 13 Sep 2011) (convicted pursuant to pleas) – Affirmed
• United States v. Scaringello, No. 201100192 (N.M.Ct.Crim.App., 20 Sep 2011) (convicted pursuant to pleas) – Affirmed
• United States v. Walton, No. 201000508 (N.M.Ct.Crim.App., 20 Sep 2011) (convicted contrary to pleas) – Reversed

Edited to add: I overlooked the fact that the specification at issue US v. Thomas (ACCA) actually did allege the terminal element, but was potentially defective in other respects, so that case does not belong on the list. The total is 5 cases, all NMCCA.

The bright line in these cases is clear: where the accused pleaded Guilty to a defective Art. 134 specification, the conviction is affirmed based on the reasoning of United States v. Watkins, 21 M.J. 208 (C.M.A., 1986); where the accused pleaded Not Guilty, the conviction is reversed based on Fosler.

Watkins held that without a showing of prejudice (i.e., a misled accused or double jeopardy concerns), a conviction pursuant to a plea of guilty, first challenged at appeal, will not be reversed for a defective specification unless the specification is so defective that it “cannot within reason be construed to charge [the] crime.” Watkins, 21 M.J. at 210. This Watkins exception to the Fosler rule is perfectly reasonable. An accused who voluntarily and accurately pleaded guilty pursuant to a pretrial agreement, and enjoyed the benefit of that agreement, and who can show no prejudice, undoubtedly understood the offense with which he was charged (i.e., the terminal element was necessarily implied), and no justiciable interest is served by reversing that conviction on technical grounds. However, in breathing new life into this rule, the Army and Navy-Marine Courts of Criminal Appeals are not pitting the reasonableness of Watkins against the reasoning of Fosler.

The Fosler majority emphasized that the three clauses of Art. 134 are “distinct and separate,” and that:

“an accused must be given notice as to which clause or clauses he must defend against. As [the court] explained in the context of a guilty plea: ‘[F]or the purposes of Article 134, UCMJ, it is important for the accused to know whether [the offense in question is] a crime or offense not capital under clause 3, a ‘disorder or neglect’ under clause 1, conduct proscribed under clause 2, or all three.’” Fosler, 70 M.J. at 230 (quoting United States v. Medina, 66 M.J. 21, 26 (C.A.A.F., 2008)) (second and third alterations in original).

This reasoning appears to eliminate the Watkins exception, but Medina (which held that Art. 134 clause 1 and 2 offenses are not necessarily LIOs of clause 3 offenses) is not so broad as Fosler makes it appear. “[In Medina], Appellant was not advised during the plea inquiry that in addition to pleading guilty to the incorporated offenses under 18 U.S.C. §§ 2251 and 2552A, he was by implication also pleading guilty to Article 134(2) UCMJ, offenses.” Medina, 66 M.J. at 27. But in Watkins, the accused was “informed separately of the elements of each … offense by the military judge… . The military judge personally determined the accused’s understanding of the law in relation to the facts … [and] the accused here successfully completed an exhaustive providence inquiry.” Watkins, 21 M.J. at 210. Medina and Watkins present complementary analysis of the fundamental principle that the accused must understand the full meaning and effect of his plea for it to be provident. Fosler doesn’t change that at all.

This makes Fosler a case with a very short lifespan. Prosecutors have already begun to include terminal elements in specifications under clause 1 and 2. Once the present backlog of cases is resolved (presumably by the application of a few bright lines, and a handful of retrials), the need to apply Fosler will be rare, and the next edition of the Manual for Courts-Martial should eliminate application beyond. The post-Jones landscape remains easy. So far, nobody is turning to stone.

Even if the text of the specification [Art. 134, UCMJ, Breaking restriction] failed to reasonably inform the appellant of the terminal element, the remaining charges, the military judge’s instructions, the providence inquiry and the stipulation of fact, all at a minimum put him on clear notice that the offense alleged under Charge V necessarily implied the terminal element.

Of note, at issue in Leubecker was one specification of breaking restriction and one specification of communicating a threat.

As it did in Leubecker, the CCA cited U.S. v. Watkins, 21 M.J. 208 (C.M.A., 1986), as a primary source for the its reasoning. The court also cited U.S. v. Daniels, 57 M.J. 560, 561 (N.M.Ct.Crim.App. 2002) (“[w]hen an appellant challenges a specification for the first time on appeal, he must show substantial prejudice, demonstrating that the charge was so obviously defective that by no reasonable construction can it be said to charge the offense for which conviction was had.” Daniels, 57 M.J. at 561 (citing United States v. Bryant, 30 M.J. 72, 73 (C.M.A. 1990))). Daniels was not cited in Leubecker.

Our discussion of Leubecker is here.

The convening authority’s “legal nullity” also made an appearance (see U.S. v. Tarniewicz, __ MJ __; No. 201100158 (N-M. Ct. Crim. App. Aug 30, 2011).

the appellant entered into a pretrial agreement that contemplated guilty pleas to the General Article offenses; he received the correct statutory elements and definitions from the military judge; and he satisfactorily completed the providence inquiry. (Op. at 2)

The court also distinguished the Art. 134 specification at issue in Fosler (Adultery) from those at issue in Leubecker (Communicating a threat and Breaking restriction). Noting that adulterous conduct alone, without an element of prejudice to good order and discipline or service discrediting nature, “probably is not criminal” under the UCMJ.

If the Leubecker rule is upheld, it will likely have the biggest impact on Summary Courts-Martial, which are reviewed for legal error under Article 64, UCMJ. Most Summary Courts are guilty-plea cases, and many are conducted entirely by unit personnel and without the assistance of attorneys, resulting in specifications that, at best, track the sample language in the Manual for Courts-Martial (which does not include the terminal element).