The Air Force Court of Criminal Appeals today issued its first post-Fosler Fosler decision. United States v. Martinez, No. ACM S31779 (A.F. Ct. Crim. App. Oct. 27, 2011). It appears to be a published decision, but its electronic file name includes a “u,” which is typically used to designate an opinion as unpublished. That ambiguity should be resolved once the opinion is posted on AFCCA’s website.

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.

With its recent opinion in United States v. Roberts, No. 20090716 (14 October 2011), the Army CCA joins the Navy-Marine Corps CCA in the post-Fosler affirmation party for Article 134 specifications lacking the terminal element where the accused did not challenge the specification at trial and pleaded guilty.

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.

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The Army Court of Criminal Appeals has decided United State v. Roberts in an opinion authored by Senior Judge Johnson, and a memorandum opinion in United States v. Matos-Martinez. Meanwhile, the Navy-Marine Corps Court of Criminal Appeals has released Judge Modzelewski’s opinion for the court in United States v. Milton.  I’ll see what they have to say tonight.

If a tree falls in the forest, but the trial counsel doesn’t inform the accused, does it make a sound?

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.

Can a military suspect who has consented to the testing of his bodily excreta validly revoke that consent after the government has taken possession of the excreta in question?  The Air Force Court of Criminal Appeals tackled that somewhat messy issue with its recent decision and order in United States v. Dease, Misc. Dkt. No. 2011-04 (AFCCA 29 Sept 2011). 

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!

The cases, all convictions in accordance with the pleas of the accused, and all unpublished decisions are:

• 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…

CAAF began its analysis in United States v. Fosler with an understatement: “Historically, the express allegation of the terminal element of Article 134 has not been viewed as necessary.” United States v. Fosler, 70 M.J. 225, 227 (C.A.A.F., 2011). Early publications did call for inclusion of a terminal element when charging an offense under the general article. See Captain P. Henry Ray, USA, Instructions for Courts-Martial and Judge Advocates, at 22 (1890). See also Colonel William Winthrop, USA, Military Law and Precedents, at 1022 (2d Ed., 1920). Over the following century this practice changed, until eventually omission of the terminal element received both Executive and Judicial sanction.

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.”).

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Just a week after releasing its opinion in U.S. v. Leubecker, the N-MCCA released its opinion in U.S. v. Scaringello, No. 201100192 (Sep 20, 2011), finding that:

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).

Phil “My Liege” Cave’s blog calls attention to this unpublished NMCCA decision setting aside an adultery spec and a communicating indecent language spec on Fosler grounds.  United States v. Walton, No. NMCCA 201000508 (N-M. Ct. Crim. App. Sept. 20, 2011) (per curiam).

In U.S. v. Leubecker, No. 201100091, The N-MCCA ruled that the rule set forth in U.S. v. Fosler, 70 M.J. 225 (C.A.A.F., 2011) (an offense under Clause 1 or 2 of Article 134, UCMJ, must state the applicable terminal element) is inapplicable where the accused pleads guilty. Citing U.S. v. Watkins, 21 M.J. 208 (C.M.A., 1986), the court noted that:

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).

I missed a published opinion from the Navy-Marine CCA in United States v. Tarniewicz, __ MJ __; No. 201100158 (N-M. Ct. Crim. App. Aug 30, 2011). It’s an easy 3-page read, and addresses an issue that is a surprising topic for a published opinion, considering that published opinions are relatively few and far between.

Lance Corporal Tarniewicz was convicted, pursuant to his pleas in accordance with a pretrial agreement, of various offenses irrelevant to the sole assignment of error, which is that:

the CA erred when taking action by ordering the approved sentence, including the bad-conduct discharge, executed in violation of Article 71, UCMJ.

The language at issue is:

In accordance with the Uniform Code of Military Justice, the Manual for Courts-Martial, applicable regulations, and this action, the sentence is ordered executed. Pursuant to Article 71, UCMJ, the punitive discharge will be executed after final judgment. (Emphasis added in opinion).

Since the court’s analysis runs slightly more than a single paragraph, I reproduce it in its entirety:

The action does not follow the recommended forms for action contained within Appendix 16, Manual for Courts-Martial.

The phrase, “will be executed,” could be interpreted to mean that the CA attempted to direct the execution of the appellant’s punitive discharge; on the other hand, the phrase could be interpreted as mere commentary on a possible future event. Leaving aside whether the context of the paragraph limits the meaning of the phrase “will be executed,” the language is subject to two interpretations: one is ultra vires; the other, mere surplusage. Both invite needless post-trial litigation. Regardless of the interpretation, the phrase has no effect; to the extent that this language purports to direct anything, it is a legal nullity. Article 71 does not permit a punitive discharge to be executed until after there is a final judgment, an event which necessitates review by a Court of Criminal Appeals.

Court-watchers can’t be surprised that this issue found its way into a published opinion. The NMCCA has discussed this language, which “purports to direct” execution of the punitive discharge, in footnotes for months, and is clearly exasperated.

Practitioners may wonder about the pedigree of this language that, as noted by the court, does not follow the template provided in the MCM. It comes from the standardized convening authority’s action template propagated by the Staff Judge Advocate to the Commandant of the Marine Corps in MARADMIN 151/11. The offending sentence (“Pursuant to Article 71, UCMJ, the punitive discharge will…”) is marked as “optional” in the template,  but is apparently widely-used, much to the dismay of the CCA.

Disclaimer: I happen to be the Chief Review Officer at the LSSS, Camp Lejeune, NC. In that capacity, I prepare SJARs and CAAs using the templates discussed in MARADMIN 151/11 (though I do not include the optional language at issue in Tarniewicz). As with all of my CAAFlog contributions, this post is made in my personal capacity and does not reflect the official policy or position of any military service, the Department of Defense, or the U.S. Government.

The No Man will be excited.  This new ACCA published opinion, which rejects a Lawrence v. Texas challenge to a sodomy conviction, cites Apprendi v. New Jersey, 530 U.S. 466 (2000).  United States v. Truss, __ M.J. __, No. ARMY 20080988 (A. Ct. Crim. App. Aug. 31, 2011).

[Gee, can you tell it's now football season?  I originally mistakenly wrote "Lawrence v. Taylor" instead of "Lawrence v. Texas."  I must still be in a state of confusion brought on by the Terrapins' new kaleidoscopic uniforms.]

Under Article 44 of the UCMJ, jeopardy attaches upon “the introduction of evidence.”  In civilian trials, jeopardy attaches for Fifth Amendment purposes “when a jury is empaneled and sworn.”  Serfass v. United States, 420 U.S. 377, 388 (1975).

In United States v. Easton, __ M.J. __, No. ARMY 20080640 (A. Ct. Crim. App. July 28, 2011), the convenng authority withdrew and dismissed charges after the members panel was sworn and assembled, but before opening statements and the introduction of evidence.  The CA subsequently referred the same charges, plus others, to another court-martial.  On appeal, the defense argued that Article 44′s trigger for jeopardy was unconstitutional and that the military must follow the same “empaneled and sworn” rule that applies in civilian courts.  ACCA, however, side-stepped that constitutional challenge, holding that while jeopardy had attached at the first trial, it had never terminated, thus allowing the accused to be tried by a second court-martial without implicating the double jeopardy protection.

ACCA reasoned, “In general, jeopardy will terminate, and therefore preclude a subsequent court-martial, where charges are dismissed.  But where a manifest necessity exists to dismiss charges, then jeopardy does not terminate.”  Id., slip op. at 8.  “‘[M]anifest necessity’ refers to the magnitude of the circumstances that justify discontinuing a trial without terminating jeopardy.  The term ‘manifest necessity’ does not equate to irresistible compulson, but instead means there is a ‘high degree’ of need for the action taken.”  Id. (internal citations omitted).

ACCA found such “manifest necessity” existed:

[T]his case demonstrates a manifest necessity for the convening authority’s actions.  Appellant’s unit was ordered to Iraq as part of a surge of forces designed to quell the deadly violence in that country.  Appellant’s crime was for intentionally missing movement to Iraq for this operation.  As appellant’s case neared trial, it became clear that operational requirements would prevent the return of some members of appellant’s unit that possessed knowledge about the circumstances of the case.  Thus, due to the very nature of appellant’s crime and the ongoing operations in Iraq, two witnesses were unavailable for trial.  The government still made efforts to prosecute appellant’s first court-martial and secured depositions of the unavailable witnesses, but the depositions were inoperable.

. . . .

[O]perational considerations drove the convening authority’s decision to terminate appellant’s first court-martial.  Moreover, there is no evidence that the convening authority acted in bad faith when he made an informed decision to withdraw the charges from that court-martial.

The convening authority’s broad discretion must temper our analysis in this case.  No evidence had been introduced at appellant’s first court-martial, and appellant’s unit, which included the witnesses against him, was engaged in combat in Iraq.  Instead of pursuing withdrawal of these witnesses from Iraq, the convening authority withdrew the charges from the court-martial.  Absent evidence of bad faith, we will not second-guess the convening authority’s tactical decision to withdraw charges here, especially when buttressed by the record of trial and the military judge’s thorough findings of fact.

Id., slip op. at 10-11 (footnote omitted).

Senior Judge Johnson wrote for a unanimous panel.

Here’s a link to an interesting unpublished ACCA decision setting aside a marijuana use conviction on confrontation grounds.  United States v. Harrington, No. ARMY 20090442 (A. Ct. Crim. App. July 29, 2011) (per curiam).

While the defense had not challenged the admissibility of the Laboratory Documentation Packet (LDP) at trial, on appeal Private Harrington’s counsel argued that the LDP’s admission violated the Confrontation Clause.  The government acknowledged that many of the LPD’s pages “may have been testimonial,” but argued that a surrogate expert witness “satisfied appellant’s right to confrontation.”  Nope, ruled ACCA.

First, ACCA concluded that the issue had not been intentionally waived, so it applied a plain error analysis.  ACCA then reasoned:

We agree with the parties that portions of the LDP are testimonial, but reject the government’s argument that a surrogate witness satisfied appellant’s right to confront those persons making the testimonial statements contained within the LDP.  The use of a surrogate witness “who did not sign the certification or perform or observe the test” in question is not a constitutional substitute for the cross-examination of the declarant whose testimonial statement is actually admitted into evidence.  Bullcoming v. New Mexico, ___ U.S. ___, ___, 131 S.Ct. 2705, 2710 (2011); See also United States v. Blazier, 69 M.J. 218, 223–24 (C.A.A.F. 2010).  Accordingly, we find that the admission of the LDP was plainly erroneous.  Furthermore, after reviewing the entire record before us, we are not convinced that the admission of the LDP was harmless beyond a reasonable doubt in this case. 

United States v. Lee is an interesting and thoughtfully presented opinion, and worth the read.  Colonel Sullivan’s summary hits the substantive points, but some of the comments got me thinking.

I agree with the court that the counsel in this case should have discussed the conflict issue with the client.  But I’m not as far out on the “outrage” spectrum as the commentators about the prospect of the defense counsel taking the remnants of his docket with him down the hall to the trial shop. 

Both the opinion and the comments bring to mind any number of military justice idiosyncrasies that a would be unacceptable anywhere else in lawyerdom.  Stewie, the 2L off the street wouldn’t answer a hypothetical about juror selection the same way Article 25 does, either.   

I suspect that the Marine Corps officer in charge of this legal shop thought that the counsel involved were sufficiently professional–and honorable–to zealously fulfill their roles without fear of causing or suffering professional repercussions as a result of their performance.  Our system has a history of relying on the professionalism and restraint of its participants–even non-lawyer participants–where only structural protections would be acceptable in the civilian system.

I’m reminded of Justice Scalia’s discussion of our method of detailing military judges in his concurrence in Weiss v. United States.   The appellants in Weiss urged that the UCMJ’s protection of military judges from adverse actions based on the exercise of their judicial function was an inadequate substitute for an independent judiciary not subject to evaluation and detailing by the JAG.  Justice Scalia found that our history didn’t support the notion that all of our practices have to pass the civilian sniff test:    

 [N]o one can suppose that similar protections against improper influence would suffice to validate a state criminal law system in which felonies were tried by judges serving at the pleasure of the Executive. I am confident that we would not be satisfied with mere formal prohibitions in the civilian context, but would hold that due process demands the structural protection of tenure in office, which has been provided in England since 1700, was provided in almost all the former English colonies from the time of the Revolution, and is provided in all the States today. (It is noteworthy that one of the grievances recited against King George III in the Declaration of Independence was that “[h]e has made Judges dependent on his Will alone, for the tenure of their offices.”)

Weiss v. United States, 510 U.S. 163, 198-99 (Scalia, J., concurring) (citations omitted) (emphasis and second alteration in the original).

So I’m not joining the commentariat’s collective facepalm.  Sometimes nonstructural safeguards–even ones that primarily function by relying on the honor and integrity of the system’s participants–are sufficient in our system. It was a mistake to not discuss the matter with the client.  But maybe someday this same opinion gets written about our practice of assigning counsel out of the same command to conflict cases.  Or having convening authorities pick members.  I see Lee more as evidence of a continued trend away from reliance on people and their integrity and toward process and structure.  Neither approach is perfect.