AFCCA has issued an amended version of its rules of practice and procedure, which we’ve uploaded here.

Ah, a shiny new military justice appellate toy just in time for Christmas.  Borrowing an electronic page from CAAF, AFCCA is now posting a daily journal here. [Update:  Here is the permanent link to the Daily Journal page--which "we'll" post in the sidebar for future reference.]

CAAF today issued this order to AFCCA arising from the second petition for extraordinary relief in Carter v. United States complaining about the impact of systemic appellate delay in the Air Force’s justice system.  (Note our previous coverage here and here, as well as Michael Doyle’s McClatchy article here.)

CAAF ordered:

That the United States Air Force Court of Criminal Appeals shall either decide the case within 45 days or provide this Court with an explanation of the need for further consideration.

Carter v.  United States, __ M.J. __, No. 13-8006/AF (C.A.A.F. Nov. 27, 2012).

This order raises the question of what will happen with other Air Force appellate cases that have exceeded the third Moreno standard.  By my count, as of today, there are 104 fully briefed noncapital cases pending initial review by the Air Force Court of Criminal Appeals in which the Moreno 18-month docketing-to-decision standard has been exceeded.  23 of them are older than Carter, which was docketed with the Air Force Court on 26 August 2010.   The oldest was docketed on 23 September 2009.  Of course, Carter is still confined.  I don’t know how many of the cases older than Carter involve confined appellants, though I know that several of them don’t.  Could any confined appellant whose case has been pending longer than Carter’s obtain a similar order?  How about confined appellants whose cases have been pending almost as long as Carter’s?  Time will probably provide answers to those questions.

Audio of the oral argument of United States v. McVeigh, at the NMCCA on Wednesday, October 24, 2012, is available at this link.

I’m catching up on my CCA case law this morning.  Earlier this week, the Coast Guard Court of Criminal Appeals issued this published opinion dealing with sentence credit where an accused is convicted by court-martial of an offense for which she has already been nonjudicially punished.  United States v. Sharki, __ M.J. __, No. 1360 (C.G. Ct. Crim. App. Oct. 24, 2012).

After knocking out a Ballan issue, the court addressed the Pierce credit issue.  The evil that Pierce seeks to avoid is a servicemember being twice punished for the same offense.  In Sharki, the military judge gave the accused a five-day sentence credit where she had previously been NJPed for one of the offenses of which she was convicted at the court-martial.  The NJP consisted of a reduction, forfeiture of $500 pay for one month, and restriction.  In response to an order from CGCCA to explain precisely how she calculated the Pierce credit, the military judge explained in an affidavit that she calculated Petty Officer Sharki’s sentence based only on the offenses for which she had not been NJPed.  That was sufficient to avoid the evil of double punishment, CGCCA held.  The court also dropped a footnote observing that, “[a]s a consequence, it woudl seem that the five-day credit given for the restriction was a windfall.”

Chief Judge McClelland wrote for a unanimous panel.

No Man brought our attention to excessive delays at the AFCCA in this post last month.

CAAF’s daily journal for Thursday, October 11, has this development:

No. 13-8006/AF.  Patrick CARTER, Petitioner v. The United States, United States Air Force Court of Criminal Appeals and Commander, United States Naval Consolidated Brig, Miramar, California, Respondents.  On consideration of the petition for extraordinary relief in the nature of a writ of habeas corpus or, in the alternative, writ of mandamus, it is ordered that on or before October 22, 2012, Respondents show cause why the requested relief should not be granted on the following issue:

Whether petitioner is entitled to extraordinary relief where his case has been pending before the Air Force Court of Criminal Appeals for more than 24 months and the Air Force Court has denied multiple motions for expedited decision.

I wonder if the Respondents will seek an extension of time…

Here is the link to tomorrow’s Hasan case En Banc hearing at the Army Court of Criminal Appeals.  Below are the issues being argued.  Leave any reports in the Comments if you attend.

I. Whether The Military Judge Violated Petitioner’s Fifth Amendment Due Process Rights By Holding Summary Contempt Proceedings.

II. Whether The Military Judge Committed Prejudicial Error By Entering Multiple Contempt Findings And Punishing Petitioner Repeatedly For The Same Act Of Religious Exercise.

III. Whether The Military Judge Erred When He Found The Petitioner Guilty Of Contempt After The Petitioner Had Asserted The Religious Freedom Restoration Act As A Defense.

IV. Whether The Military Judge Failed To Disqualify Himself As The Judge Presiding Over The Contempt Proceedings.

V. Whether [Rule For Courts-Martial] 809 Unconstitutionally Violated The Petitioner’s Right To Due Process.

[VI.] Whether The Military Judge Has The Authority To Order The Forcbile [Sic] Shaving Of Petitioner’s Rights Under The Religious Freedom Restoration Act.

In Addition, The Court Specified The Following Issues For Oral Argument:

I. Regardless Of The Applicability Of The Religious Freedom Restoration Act, 42 U.S.C. § 2000bb (2006), Whether The Military Judge’s Order To Petitioner To Comply With A Grooming Standard And Subsequent Forced Shaving Order Exceeded The Military Judge’s Authority Or Was Otherwise Inappropriate In Accordance With Army Regulation 600-20 And Rule For Courts-Martial 801.

II. If The Military Judge’s Conduct In Ordering The Petitioner To Comply With A Grooming Standard Exceeded His Authority Or Was Otherwise Inappropriate, Would The Contempt Proceedings Based On Appellant’s Failure To Comply With The Military Judge’s Order Be Invalidated.

 III. If The Military Judge’s Conduct In Ordering Petitioner To Comply With A Grooming Standard Or Subsequent Forcible Shaving Order Exceeded The Military Judge’s Authority Or Was Otherwise Inappropriate, Should The Military Judge Be Disqualified From Further Participation In Proceedings Against The Petitioner.

Scott Horton’s TruthOut article was the last MilJus related activity that earned the guano crazy designation, here.  But I would have to say that AFCCA’s docket administration is just about there.  Here is another petition, and the related docketing notice (here), to CAAF seeking expedited review due to a case languishing in appellate review–and this petitioner is in confinement!

Now if the Navy Judge Advocate General was crazy enough to appoint me to the Court of Criminal Appeals (and that’s guano crazy), I would think as a judge I would prioritize appellate review of those cases where the appellant was still sitting in confinement.  Now that’s me. Yet the appellant/petitioner in Carter v. Air Force Court of Criminal Appeals, Misc. Dkt. No. 13-8006/AF, submitted his brief in August 2011 and still doesn’t have a decision from the Air Force Court.  The petition also notes that AFCCA now has 83 cases that exceed the 18-month Moreno-standard.  Is that not guano crazy after Moreno?

In a pro se habeas case, AFCCA has specified this interesting issue:

Whether the holding of United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012), is retroactive in its application where the Petitioner’s judgment as to the legality of the proceedings has been declared final under Article 71(c), UCMJ.

United States v. Calhoun, Misc. Dkt. No. 2012-01 (A.F. Ct. Crim. App. July 23, 2012) (order).

In the post below, we note a rare sighting of a double-billed opinion.  This post notes the not-quite-as-rare sighting of the less exotic but still elusive fully hatched Tardif relief.

In United States v. Dodson, No. ARMY 20090378 (A. Ct. Crim. App. July 16, 2012), ACCA granted a meaningful reduction in the sentence to offset unreasonable but nonprejudicial post-trial delay, much of it arising from the trial defense counsel’s dilatory pre-authentication review of the ROT.

In April, we spotted two Tardifs that hatched in March.  Before that, we hadn’t noted the citing of a fully hatched Tardif since seeing one in December 2010 and another in October 2010.

We previously noted AFCCA”s unpublished decision in Bazar setting aside an Article 134 conviction because the spec failed to allege the terminal element.  United States v. Bazar, No. ACM 37548 (A.F. Ct. Crim. App. June 29, 2012). Now ACCA and NMCCA have followed suit.  Yesterday ACCA applied Humphries to set aside an Article 134 conviction (United States v. Coleman, No., ARMY 20100417 (A. Ct. Crim. App. July 9, 2012), and today NMCCA did the same (United States v. Key, No. NMCCA201100417 (N-M. Ct. Crim. App. July 10, 2012) .  All three opinions have something else in common as well:  none granted sentence relief.

Here’s an unpublished AFCCA opinion by Judge Roan the Great applying United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012), to two contested Article 134 specifications and reversing the convictions.  United States v. Bazar, No. ACM 37548 (A.F. Ct. Crim. App. June 29, 2012).

Over the last month (plus two days), NMCCA has issued several potentially significant unpublished opinions.  This post will look at one concerning child rape.  A follow-on post will look at another concerning lab reports and confrontation.

The recent case of United States v. Valentin dealt with, among other issues, whether parental compulsion could satisfy the force element for a child rape conviction under the 2006 version of Article 120.  United States v. Valentin, No. NMCCA 201000683 (N-M. Ct. Crim. App. May 17, 2012).  No, NMCCA held.  Senior Judge Payton-O’Brien wrote for a unanimous panel.

The military judge instructed the members that the force element could be satisfied by “constructive force in the form of parental distress or compulsion.”  NMCCA held “that the theory of constructive force by parental compulsion is not encompassed in the definition of force under [the 2006 version of] Article 120(t)(5), UCMJ. Despite the lack of defense counsel objection, it was plain error for the military judge to instruct the members that they could find constructive force based on a parental compulsion theory, and . . . the error materially prejudiced the appellant.”  Valentin, slip op. at 18.

The court reasoned, in part:

Force under Article 120(t)(5)(C) is defined as, “action to compel submission of another or to overcome or prevent another’s resistance, by . . . physical violence strength, power, or restraint applied to another person, sufficient that the other person could not avoid or escape the sexual conduct.” Finding that “power” describes a physical act and not psychological forces conforms to the canon of statutory construction noscitur a sociis:  words are judged by the company they keep.  United States v. Martinelli, 62 M.J. 52, 61 (C.A.A.F. 2005). All of the words surrounding “power” in Article 120(t)(5)(C) contemplate physical action. To find that “power” means something other than physical compulsion would make “power” an anomaly in the middle of a list describing other physical acts.

Id., slip op. at 19. 

The court found further support for that conclusion in the statute’s legislative history.  The court noted that before Article 120 was amended, “a task force was assembled and six options for changing the statute were offered.”  Id., slip op. at 20.

The task force ultimately recommended not changing the statute, for a variety of reasons including the belief that a major change to the law from a common law statute would eviscerate the applicability of military appellate court decisions.  In the six options presented, some included incorporating the parental compulsion theory of constructive force while other options did not. Ultimately the task force’s recommendation not to change Article 120 was rejected, and the statute was amended without expressly including a theory of constructive force based on parental compulsion.

Id. (internal footnote omitted).

Finally, the court reasoned that the inclusion of a parental compulsion theory in the 2011 version of the child rape statute (Article 120b, which applies to offenses committed on or after 28 June 2012) “indicates that the theory was simply not included in the prior version under which the appellant was convicted.”  Id.  Accordingly, the court overturned the child rape conviction, but affirmed a conviction to the lesser included offense of aggravated sexual assault of a child who had attained the age of 12 but not the age of 16.  The court knocked 1 year, 10 months, and 15 days off of the approved confinement portion of the sentence (which had been 14 years, 10 months, and 15 days) to remedy the erroneous conviction to the greater offense of rape of a child.

The Valentin decision notes that the force element can be satisfied by parental compulsion under both the pre-2006 and 2011 child rape statute, the former as a result of judicial construction and the latter as a result of statutory language.  But not under the 2006 version, NMCCA held.

While Article 120b will soon go into effect, the 2006 Article 120(b) will remain with us for quite some time.  It will continue to govern child rapes that occurred between 1 October 2007 and 28 June 2012.  Since there’s no statute of limitations for that offense, prosecutions under that statute are likely to occur for years to come.  When they do, even though it’s unpublished, Valentin may prove to be a significant opinion.

Audio of today’s Takara oral argument before the Air Force Court of Criminal Appeals is available here.

Audio of Thursday’s fascinating NMCCA argument in United States v. Parker, a capital case, is supposed to be here.  I can’t open it on my computer, but perhaps members of the non-unfrozen caveman lawyer contingent of the NIMJBlog-CAAFlog community can.