CAAFlog » Certified Cases

CAAF docketed this certification on Friday:

No. 17-0507/AR. U.S. v. Orval W. Gould, Jr. CCA 20120727. Notice is hereby given that a certificate for review of the decision of the United States Army Court of Criminal Appeals on appeal by the United States under Article 62, UCMJ, [sic] and a supporting brief were filed under Rule 22 on this date on the following issues:

I. WHETHER THE ARMY COURT OF CRIMINAL APPEALS IMPERMISSIBLY EXCEEDED THE LIMITATIONS OF ITS AUTHORITY ON REMAND FROM THIS COURT BY CONDUCTING A FACTUAL SUFFICIENCY REVIEW.

II. WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED BY FINDING SPECIFICATION 1 OF CHARGE II FACTUALLY AND LEGALLY INSUFFICIENT.

III. WHETHER NUDITY IS A PER SE REQUIREMENT FOR AN IMAGE TO CONSTITUTE A “LASCIVIOUS EXHIBITION OF THE GENITALS OR PUBIC AREA” IN 18 U.S.C. § 2256(8)(A).

The reference to Article 62 (authorizing Government interlocutory appeals) is an error; this is not an Article 62 case.

This is the second trip to CAAF for this case. The case was previously a trailer to United States v. Blouin, 74 M.J. 247 (C.A.A.F. Jun. 25, 2015) (CAAFlog case page). In Blouin, CAAF considered the adequacy of a guilty plea to wrongful possession of child pornography in a case where the images in the record showed only a child posing provocatively in undergarments; none depicted sexual activity or full nudity. The Army CCA had – in a published opinion – affirmed the guilty plea by holding that “nudity is not required to meet the definition of child pornography as it relates to the lascivious exhibition of genitals or pubic area under Title 18 of the United States Code or Article 134, UCMJ.” 74 M.J. at 249 (quoting United States v. Blouin, 73 M.J. 694, 696 (A. Ct. Crim. App. 2014)). That holding was an adoption of the holding in Knox, which is a series of decisions originating in the Third Circuit that analyzed the federal definition of child pornography as it applies to non-nude images. But a bare majority of CAAF rejected adoption of Knox, and reversed the guilty plea under circumstances that suggest (without actually holding) that nudity is a required component of child pornography. The dissenters, however, decried that “it should not be this hard to plead guilty to possessing child pornography.” 74 M.J. at 257. In a court-martial, no less.

The images in Gould were also non-nude (the child was made to pose in underwear). The CCA originally affirmed the child pornography conviction in Gould by applying its prior decision in Blouin. CAAF granted review (noted here) and summarily reversed (noted here) “for further consideration in light of Blouin.” 75 M.J. 22. CAAF then rejected a Government request for reconsideration. 75 M.J. 35.

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Article 62 authorizes interlocutory appeals by the prosecution in a court-martial in various situations, including of:

An order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding.

Art. 62(a)(1)(B). It’s a relatively new provision in the Code, having been added by the Military Justice Act of 1983, Pub. L. No. 98-209 (with additional grounds for appeal added in 1996).

Rule for Courts-Martial 908 details procedural steps for such an appeal, but it does not define the term (or perhaps terms) substantial proof of a fact material in the proceeding, leaving the matter up to the appellate court acting on the appeal.

The Judge Advocate General of the Army has a problem with that:

No. 17-0408/AR. United States, Appellant v. Erik P. Jacobsen, Appellee. CCA 20160786. Notice is hereby given that a certificate for review of the decision of the United States Army Court of Criminal Appeals on appeal by the United States under Article 62, UCMJ, and a supporting brief were filed under Rule 22, together with a motion to stay trial proceedings on this date on the following issue:

WHETHER THE TRIAL COUNSEL’S CERTIFICATION THAT EVIDENCE IS “SUBSTANTIAL PROOF OF A FACT MATERIAL IN THE PROCEEDING” IS CONCLUSIVE FOR PURPOSES OF ESTABLISHING APPELLATE JURISDICTION UNDER ARTICLE 62(a)(1)(B), UNIFORM CODE OF MILITARY JUSTICE.

Appellee will file an answer under Rule 22(b) on or before May 25, 2017.

I don’t see an opinion on the Army CCA’s website. Update: a reader forwarded the CCA’s order. It’s available here. The order states, in part:

Contrary to appellant’s claim, the military judge did not issue “[a]n order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding.” UCMJ art. 62(a)(l)(B) (emphasis added). Although Congress intended to provide military prosecutors, to the extent practicable, with the same rights of appeal afforded to federal civilian prosecutors in 18 U.S.C. § 3731 (i.e., the right to appeal trial rulings dismissing charges or excluding substantive evidence), the jurisdictional language codified by Congress in Article 62, UCMJ, differs from 18 U.S.C. § 3731. See United States v. Lopez de Victoria, 66 M.J. 67, 68-71 (C.A.A.F. 2008) (explaining the general intent of Congress in enacting Article 62, UCMJ).

Specifically, the plain language of 18 U.S.C. § 3731 confers appellate jurisdiction over trial orders suppressing evidence, only conditioned upon timely certification from the United States attorney. United States v. Grace, 526 F.3d 499, 505-06 (9th Cir. 2008) (en bane). In contrast, the plain language of Article 62(a)(l), UCMJ, confers appellate jurisdiction for orders or rulings that actually meet specified criteria. Although Article 62(a)(2), UCMJ, contains similar timeliness and certification requirements to 18 U.S.C. § 3731, these requirements are listed separate and apart from the jurisdictional basis. Essentially, 18 U.S.C. § 3731 vests the determination of the materiality of the excluded evidence solely with the United States attorney; in this important respect, Article 62, UCMJ, is not analogous. When Congress intends to confer the right to appeal based solely on the certification of a specified officer, it is perfectly capable of making that intention clear in statutory language. Compare 18 U.S.C. § 3731, and Article 67(a)(2), UCMJ, with Article 62(a), UCMJ.

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CAAF will hear oral argument in the certified Air Force case of United States v. Carter, Nos. 17-0079/AF & 17-0086/AF (CAAFlog case page), on Tuesday, May 9, 2017, after the argument in Claxton. The case involves one certified issue and five granted issues (but three of the granted issues are Ortiz trailer issues). The issues arise from convictions of child endangerment and committing indecent acts with a child, both in violation of Article 134, that were reversed on appeal by the Air Force CCA because the specifications didn’t allege a terminal element, then re-preferred, re-referred, and re-tried, but then reversed again by the CCA (and dismissed with prejudice) in a split decision (discussed here) that found that the CCA’s first reversal did not authorize the second trial:

Certified Issue: Whether the Air Force Court of Criminal Appeals (AFCCA) erred by finding that the convening authority exceeded the scope of AFCCA’s remand when he referred Appellant’s case to an “other” trial under R.C.M. 1107(e)(2) following AFCCA’s original remand decision.

Granted Issues:
I. The Air Force Court of Criminal Appeals dismissed the charge and specifications in this case in 2013 and again in 2016. But it exceeded the eighteen-month presumption of unreasonable delay before doing so each time. Has Appellee been denied due process where he completed his sentence to three years of confinement 158 days before this court affirmed the lower court’s first dismissal of this case on August 2, 2013?

II. Whether Appellee’s prosecution for child endangerment was barred by the statute of limitations where more than five years had elapsed and Appellee was not brought to trial within 180 days of this court’s affirmance of the lower court’s dismissal of that specification

III. Whether United States Court of Military Commission Review Judge, Martin T. Mitchell, was statutorily authorized to sit as one of the Air Force Court of Criminal Appeals judges on the panel that decided Appellant’s case.

IV. Whether Judge Martin T. Mitchell’s service on both the Air Force Court of Criminal Appeals and the United States Court of Military Commission Review violated the appointments clause given his status as a principal officer on the United States Court of Military Commission Review.

V. Whether Judge Martin T. Mitchell was in fact a principal officer following his appointment by the President of the United States Court of Military Commission Review in light of the provisions of 10 U.S.C. § 949b(b)(4)(C) and (D), authorizing reassignment or withdrawal of Appellate Military judges so appointed by the Secretary of Defense of his designee.

Back in 2010, Master Sergeant (E-7) Carter was convicted of indecent liberties with a child in violation of Article 120(j) (2016), and of child endangerment and indecent acts with a child, both in violation of Article 134, and sentenced to confinement for 4 years, reduction to E-1, total forfeitures, and a dishonorable discharge. The convening authority disapproved the conviction of violation of Article 120(j) and reduced the sentence to confinement to three years, but approved the remainder of the findings and sentence.

The Article 134 specifications, however, failed to allege a terminal element and so therefore failed to state offenses. See United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011) (discussed here). Because there was no objection at trial, the Air Force CCA applied CAAF’s decision in United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012) (CAAFlog case page). Nevertheless, the CCA reversed the findings in 2013, the JAG certified, and CAAF summarily affirmed.

The case was remanded and new charges were preferred and referred to a new general court-martial. Carter made numerous objections (including objecting based on the statute of limitations), but the trial proceeded and Carter was again convicted. The second sentence included confinement for 40 months, total forfeitures, and reduction to E-1 (but not a punitive discharge).

The Air Force court, however, reversed again. In a 2016 decision discussed here, a three-judge panel of the Air Force CCA split 2-1 to conclude that the court’s 2013 decision did not authorize further proceedings and that the charges should be dismissed with prejudice. The dissenting judge found that the second trial was an independent proceeding based on a totally new charge – analysis that I found (and still find) to be persuasive.

CAAF will now review that decision and also determine whether the statute of limitations prohibited the second trial and whether delays in the CCA’s review deprived Carter of his right to speedy appellate review.

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Update: While I initially noted five grants of review, I only wrote about four. I eventually realized that I failed in counting to five and now update this post to include the fifth grant (in Bailey).

Some interesting cases recently joined CAAF’s docket, with a certification and five grants of review.

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In United States v. Katso, 74 M.J. 273 (C.A.A.F. Jun. 30, 2015) (CAAFlog case page), CAAF reversed the published decision of the Air Force CCA that found a Confrontation Clause violation in the testimony of a Government DNA expert who did not conduct the DNA testing at issue in the case, concluding that the expert merely (and properly) reviewed and relied upon the work of others to reach his own opinions.

The Air Force CCA’s short-lived opinion would have been a significant Confrontation Clause decision, and CAAF’s decision was a dramatic reversal for Airman Basic (E-1) Katso whose convictions of aggravated sexual assault, burglary, and unlawful entry, and whose sentence of confinement for ten years, total forfeitures, and a dishonorable discharge, had been reversed by the Air Force CCA, with a rehearing authorized. Katso sought certiorari of CAAF’s decision, but it was denied, and the case was returned to the Air Force CCA for further review.

There, however, things got even more interesting, leading to a second published decision of the Air Force CCA, the award of 365 days of confinement credit to Katso, and now a second certification back to CAAF.

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CAAF decided the certified Air Force case of United States v. Fetrow, 76 M.J. 181, No. 16-0500/AF (CAAFlog case page) (link to slip op.), on Monday, April 17, 2017. Reviewing the Air Force CCA’s determination of when evidence of uncharged alleged child molestation is admissible under Mil. R. Evid. 414, CAAF agrees with the CCA’s determination that such evidence must (1) constitute an offense under the UCMJ, federal law, or state law when the uncharged allegation occurred, and (2) be within the categories set forth in the version of M.R.E. 414(d)(2)(A)-(G) in effect at the time of trial. CAAF affirms the Air Force CCA’s decision that reversed child molestation convictions and a sentence that included confinement for 25 years.

Judge Sparks writes for a unanimous court.

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CAAF will hear oral argument in the certified Army case of United States v. Mitchell, No. 17-0153/AR (CAAFlog case page), on Tuesday, April 4, 2017, at at 12:30 p.m., at the Notre Dame Law School, Notre Dame, Indiana.

The case continues a prosecution appeal under Article 62 of a military judge’s ruling that suppressed the contents of Sergeant (E-5) Mitchell’s cell phone because military investigators continued to question him after he requested an attorney and that questioning led to Mitchell decrypting the device for the investigators. The Army Court of Criminal Appeals affirmed the military judge’s suppression ruling, and the Judge Advocate General of the Army certified three issues to CAAF:

I. Whether the Fifth Amendment’s self-incrimination clause is violated when a suspect voluntarily unlocks his phone without giving his personal identification number to investigators.

II. Whether the Edwards rule is violated when investigators ask a suspect, who has requested counsel and returned to his place of duty, to unlock his phone incident to a valid search authorization.

III. Whether, assuming investigators violated appellant’s Fifth Amendment privilege or the Edwards rule, the military judge erred by suppressing the evidence.

Mitchell is charged with various offenses at a general court-martial. The bulk of the charges relate to allegations that Mitchell harassed his ex-wife. The search of Mitchell’s phone was based on a claim by his ex-wife that Mitchell contacted her using texting applications after he was issued a no-contact order. Mitchell was interrogated on this topic by military criminal investigators at a military police station where Mitchell invoked his right to counsel. Mitchell was then escorted back to his unit, but investigators immediately obtained a search authorization for the phone and Mitchell was brought to his company commander’s office where the investigators met him. There:

The investigators told Appellee [Mitchell] that they had a verbal search and seizure authorization for his electronic media. (JA 479). Appellee handed his iPhone 6 to the investigators. (JA 480). Investigator BT asked Appellee for his PIN, but Appellee refused to provide it. (JA 480). The military judge found as a fact that the investigators next said, ‘”[I]f you could unlock it, great, if you could help us out. But if you don’t, we’ll wait for a digital forensic expert to unlock it,’ or words to that effect.” (JA 480). Appellee refused to provide his PIN, but unlocked the phone and gave it back to the investigators. (JA 480).

Army App. Gov’t Div. Br. at 5. Mitchell’s brief, however, offers an additional fact:

According to SSG Vaughn, the investigators “badgered [SGT Mitchell]” multiple times until SGT Mitchell provided the passcode or unlocked his phone. (R. at 275).

App. Br. at 5.

The military judge concluded that the continued interrogation and Mitchell’s act of decrypting the phone violated Mitchell’s rights under the Fifth Amendment, and she applied Mil. R. Evid. 305(c)(2) to suppress the phone and its contents. The Army Appellate Government Division challenges that ruling and result with a broadside of complex and interwoven legal arguments that ultimately suggest that a suspect has no right to refuse to produce a decryption passcode. The Air Force Appellate Government Division supports the Army Division as amicus curiae. A pair of law professors also appear as amicus in support of the Government (by invitation of the court).

Mitchell responds to the various arguments advanced by the Government divisions, however his brief ultimately argues that the plain language of Mil. R. Evid. 305(c)(2) dictates the suppression of the phone in his case. That rule states:

(2) Fifth Amendment Right to Counsel. If a person suspected of an offense and subjected to custodial interrogation requests counsel, any statement made in the interrogation after such request, or evidence derived from the interrogation after such request, is inadmissible against the accused unless counsel was present for the interrogation.

The Electronic Frontier Foundation, the American Civil Liberties Union, and the ACLU of the District of Columbia support Mitchell as amicus curiae, arguing in part that “compelled decryption is inherently testimonial.” EFF Amicus Br. at 12. A law student (with professorial oversight) also appears as amicus for Mitchell.

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CAAF will hear oral argument in the certified Army case of United States v. Gurczynski, No. 17-0139/AR (CAAFlog case page), on Wednesday, March 15, 2017, after the argument in Richards. A single issue continues an interlocutory Government appeal of a military judge’s ruling suppressing evidence:

Whether the military judge erred in suppressing evidence of child pornography a digital forensic examiner discovered during a search for appellee’s communications with a child victim.

Private (E-1) Gurczynski is charged with two specifications of wrongful possession of child pornography, and the suppressed evidence is the images that are the subject of the specifications. These charges are tangentially related to Gurczynski’s commission of sexual offenses with a child (and other offenses) to which he pleaded guilty in 2014 (CCA op. here). The images were discovered on devices seized from Gurczynski pursuant to a warrant that authorized a search for evidence of communications with the child victim.

In his ruling suppressing the images the military judge found that:

“[SA CJP] opened item 18 – the thumb drive – and saw several file names of videos normally associated with child pornography” and “[SA CJP] immediately suspected that these video files were child pornography.” (JA 167) (emphasis added). The military judge did not find SA CJP saw an image preview indicative of child pornography, nor did he find that SA CJP’s suspicion was based on an image preview. (JA 167).

The military judge also found that “[w]ithout seeking or obtaining a new search warrant, [SA CJP] opened one file and viewed it and determined that, based upon his professional experience in such matters, the video was child pornography.” (JA 167).

Appellee’s Br. at 10. The military judge determined that this action exceeded the scope of the warrant and suppressed the resulting images. The Army CCA affirmed. Gurczynski’s brief relies heavily on the military judge’s finding of fact as a basis to affirm the suppression.

The Army Appellate Government Division, however, asserts that the military judge got the facts wrong:

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At the end of last month CAAF received a certification from the Army JAG and the court granted review in a Coast Guard case.

The certification involves a Government appeal of military judge’s ruling that suppressed the fruits of a search of the accused’s mobile phone:

No. 17-0153/AR. United States, Appellant v. Edward J. Mitchell, II, Appellee. CCA 20150776. Notice is hereby given that a certificate for review of the decision of the United States Army Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862, and a supporting brief under Rule 22, together with a motion to stay trial proceedings were filed on this date on the following issues:

I. WHETHER THE FIFTH AMENDMENT’S SELF-INCRIMINATION CLAUSE IS VIOLATED WHEN A SUSPECT VOLUNTARILY UNLOCKS HIS PHONE WITHOUT GIVING HIS PERSONAL IDENTIFICATION NUMBER TO INVESTIGATORS.

II. WHETHER THE EDWARDS RULE IS VIOLATED WHEN INVESTIGATORS ASK A SUSPECT, WHO HAS REQUESTED COUNSEL AND RETURNED TO HIS PLACE OF DUTY, TO UNLOCK HIS PHONE INCIDENT TO A VALID SEARCH AUTHORIZATION.

III. WHETHER, ASSUMING INVESTIGATORS VIOLATED APPELLANT’S FIFTH AMENDMENT PRIVILEGE OR THE EDWARDS RULE, THE MILITARY JUDGE ERRED BY SUPPRESSING THE EVIDENCE.

The Army CCA affirmed the military judge’s ruling in a short opinion available here.

The grant involves a specification under Article 120b that was changed during the trial to allege a different specific sexual act, and a specification under Article 134 that lacked words of criminality such as wrongfully:

No. 17-0028/CG. U.S. v. Shane E. Reese. CCA 1422. On consideration of the petition for grant of review of the decision of the United States Coast Guard Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

I. WHETHER THE MILITARY JUDGE ERRED IN ALLOWING THE GOVERNMENT TO MAKE A MAJOR CHANGE TO A SPECIFICATION AFTER THE COMPLAINING WITNESS’S TESTIMONY DID NOT SUPPORT THE OFFENSE AS ORIGINALLY CHARGED.

II. WHETHER THE SPECIFICATION OF THE ADDITIONAL CHARGE FAILS TO STATE AN OFFENSE WHERE THE TERMINAL ELEMENT FAILED TO ALLEGE WORDS OF CRIMINALITY AND WHERE THE ALLEGED CONDUCT FELL WITHIN A LISTED OFFENSE OF ARTICLE 134, UCMJ.

Briefs will be filed under Rule 25.

The Coast Guard CCA’s opinion is available here. The CCA rejected both issues concluding that the amended specification alleged an act that was essentially included in the original act alleged, and also that words of criminality are not necessarily required (in accordance with United States v. Tevelein, 75 M.J. 708 (C.G. Ct. Crim. App. 2016) (discussed here)). However, one judge dissented and would have dismissed the Article 134 specification due to the omission of words of criminality.

Right on the heels of CAAF’s grant in Richards (discussed here) comes this certification by the Judge Advocate General of the Army yesterday:

No. 17-0139/AR. United States, Appellant v. Justin M. Gurczyski, Appellee. CCA 20160402. Notice is hereby given that a certificate for review of the decision of the United States Army Court of Criminal Appeals was filed under Rule 22 on this date on the following issue:

WHETHER THE MILITARY JUDGE ERRED IN SUPPRESSING EVIDENCE OF CHILD PORNOGRAPHY A DIGITAL FORENSIC EXAMINER DISCOVERED DURING A SEARCH FOR APPELLEE’S COMMUNICATIONS WITH A CHILD VICTIM.

The Army CCA’s opinion is available here.

The accused is charged with two specifications of wrongful possession of child pornography, and the suppressed evidence is the images that are the subject of the specifications. These charges are tangentially related to the accused’s commission of sexual offenses with a child (and other offenses) to which he pleaded guilty in 2014 (CCA op. here). The images were discovered on a flash drive and a hard drive seized from the accused pursuant to a warrant in connection with those other charges but not actually searched until after the guilty pleas. The warrant authorized a search for evidence that the accused communicated with his child victim. During the search, however:

[W]hen SA CP opened the thumb drive during the DFE, he saw several file names of videos normally associated with child pornography, as well as a photo of the appellant. SA CP, suspecting the video files contained child pornography, and without obtaining a new or expanded search warrant, opened one of the files and concluded, based on his professional experience, that it was child pornography. After that, SA CP searched other media seized from appellant’s home and found additional child pornography on a computer hard drive.

Slip op. at 3. “Based on these facts, the military judge concluded CID exceeded the scope of the warrant in searching the thumb drive and granted appellant’s motion to suppress the child pornography found on the thumb drive and computer hard drive.” Slip op. at 3. The CCA affirmed.

Military law recognizes three types of re-trials: a rehearing, a new trial, and an other trial. See R.C.M. 810. A rehearing (on findings, sentence, or both) may be ordered when findings or sentence are set-aside, and is a continuation of the former proceedings; a new trial may be ordered when new evidence or a fraud on the court is discovered; an other trial can occur after the original proceedings are declared invalid due to lack of jurisdiction or failure to state an offense. Separate from these – perhaps – is the possibility of a totally separate court-martial involving new charges based on the same allegations after the original charges are dismissed.

These possibilities are at the heart of a case recently certified to CAAF by the Judge Advocate General of the Air Force:

No. 17-0079/AF. United States, Appellant v. Patrick Carter, Appellee. CCA 38708. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 on this date on the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS (AFCCA) ERRED BY FINDING THAT THE CONVENING AUTHORITY EXCEEDED THE SCOPE OF AFCCA’S REMAND WHEN HE REFERRED APPELLANT’S CASE TO AN “OTHER” TRIAL UNDER R.C.M. 1107(e)(2) FOLLOWING AFCCA’S ORIGINAL REMAND DECISION

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Having solved CAAF’s dismissal of the petition for review in Rivera, we can now speculate about this denial of an extension of time for the Judge Advocate General of the Navy to certify a Government appeal, from Friday’s daily journal:

No. 17-0034/NA. U.S. v. Richard A. Latour. CCA 201600114. Notice is hereby given that a motion for an enlargement of time to file a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, and motion to stay the trial proceedings were filed under Rule 30 on this 21st day of October, 2016. On consideration thereof, it is ordered that said motions are hereby denied.

In United States v. Latour, 75 M.J. 723 (N.M. Ct. Crim. App, Jul 12, 2016) (discussed here), a three-judge panel of the NMCCA rejected a Government appeal under Article 62 of a military judge’s ruling that excluded the accused’s admissions for lack of corroboration.

CAAF will hear oral argument in the certified Air Force case of United States v. Fetrow, No. 16-0500/AF (CAAFlog case page), on Tuesday, October 25, 2016, at 9:30 a.m. The case presents two issues involving precisely what kind of evidence of child molestation is admissible for propensity purposes under Mil. R. Evid. 414:

I. Whether the Air Force Court of Criminal Appeals committed legal error when it found that in order for conduct to constitute child molestation under Mil. R. Evid. 414, the conduct must have been an offense under the UCMJ, or federal or state law, at the time it was committed and, if offered under Mil. R. Evid. 414(d)(2)(a)-(c), that the conduct must meet the definition of an offense listed under the version of the applicable enumerated statute in effect on the day of trial.

II. Whether the Air Force Court of Criminal Appeals committed legal error when it found that the erroneous admission of two acts of indecent liberties committed by appellee on his child age daughter had a substantial influence on the members’ verdict requiring set aside of the findings and sentence.

Technical Sergeant (E-5) Fetrow was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of seven child molestation offenses. He was sentenced to confinement for 25 years, reduction to E-1, total forfeitures, and a dishonorable discharge.

The charges all involved Fetrow’s two step-children (his wife’s children from a prior marriage). However, the prosecution also introduced evidence of uncharged contact involving Fetrow’s biological daughter under Mil. R. Evid. 414, which – like its federal counterpart, Fed. R. Evid. 414 – permits introduction of similar-crimes evidence in child molestation cases. The rule states:

In a court-martial proceeding in which an accused is charged with an act of child molestation, the military judge may admit evidence that the accused committed any other offense of child molestation. The evidence may be considered on any matter to which it is relevant.

Mil. R. Evid. 414(a). The rule limits the kinds of evidence that may be introduced, however, generally requiring that the evidence implicate a criminal statute prohibiting sexual contact with children. Mil. R. Evid. 414(d)(2) states, in part:

“Child molestation” means an offense punishable under the Uniform Code of Military Justice, or a crime under federal law or under state law (as “state” is defined in 18 U.S.C. § 513), that involves:

(A) any conduct prohibited by Article 120 and committed with a child; . . .

Notably, in Executive Order 13,730 of May 20, 2016 (discussed here), the rule was expanded to also include reference to Article 120b – the new child-sex offense law enacted over four years ago. This rule change, however, occurred long after Fetrow’s trial.

The evidence involving Fetrow’s biological daughter alleged that: (1) when she was 3-4 years years old, Fetrow put her in a closet while he had sex with a woman; (2) sometime close to the first event, Fetrow touched her on the leg in a seductive manner; and (3) when she was 8-9 years old Fetrow exposed his genitals to her. Gov’t Br. at 5-6. The military judge admitted this evidence, concluding in part that it was evidence of an offense prohibited under Article 120b, and therefore was admissible under Mil. R. Evid. 414.

The Air Force Court of Criminal Appeals, however, disagreed, and reversed the findings and sentence. United States v. Fetrow, 75 M.J. 574 (A.F. Ct. Crim. App. Jan 21, 2016) (discussed here). The CCA read Mil. R. Evid. 414 as involving a two-part test:

(1) whether the conduct constitutes a punishable offense under the UCMJ, federal law, or state law when the conduct occurred; and

(2) whether the conduct is [at the time of trial] encompassed within one of the specific categories set forth in Mil. R. Evid. 414(d)(2).

75 M.J. at __, slip op. at 13 (paragraphing added). The CCA then concluded that the first and third incidents are not encompassed within the 414(d)(2) categories because Article 120 requires a sexual touching of some kind, and no such touching was alleged. A footnote, however, noted that the then-pending expansion of the rule to include Article 120b could change the analysis.

The Judge Advocate General of the Air Force then certified the case to CAAF.

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CAAF decided the certified Navy case of United States v. Clark, 75 M.J. 298, No. 16-0068/NA (CAAFlog case page) (link to slip op.), on Tuesday, May 17, 2016. In a short opinion the court rejects the certified issues, declining the invitation of the Judge Advocate General of the Navy to impose a standard for a CCA’s treatment of special findings by a military judge and affirming the decision of the Navy-Marine Corps CCA that found the appellee’s convictions of rape and forcible sodomy factually insufficient.

Judge Stucky writes for a unanimous court.

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On April 29 the Air Force JAG certified Fetrow:

No. 16-0500/AF. U.S. v. Justin L. Fetrow. CCA 38631. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 on this date on the following issues:

I. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS COMMITTED LEGAL ERROR WHEN IT FOUND THAT IN ORDER FOR CONDUCT TO CONSTITUTE CHILD MOLESTATION UNDER MIL. R. EVID. 414, THE CONDUCT MUST HAVE BEEN AN OFFENSE UNDER THE UCMJ, OR FEDERAL OR STATE LAW, AT THE TIME IT WAS COMMITTED AND, IF OFFERED UNDER MIL. R. EVID. 414(d)(2)(A)-(C), THAT THE CONDUCT MUST MEET THE DEFINITION OF AN OFFENSE LISTED UNDER THE VERSION OF THE APPLICABLE ENUMERATED STATUTE IN EFFECT ON THE DAY OF TRIAL.

II. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS COMMITTED LEGAL ERROR WHEN IT FOUND THAT THE ERRONEOUS ADMISSION OF TWO ACTS OF INDECENT LIBERTIES COMMITTED BY APPELLEE ON HIS CHILD AGE DAUGHTER HAD A SUBSTANTIAL INFLUENCE ON THE MEMBERS’ VERDICT REQUIRING SET ASIDE OF THE FINDINGS AND SENTENCE.

Appellant will file a brief under Rule 22(b) in support of said certificate on or before the 31st day of May, 2016.

I discussed the Air Force CCA’s opinion in Fetrow here.

Additionally, on May 3 CAAF granted review in three cases:

No. 16-0267/AR. U.S. v. Nathan C. Wilson. CCA 20140135. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue personally asserted by appellant:

WHETHER THE MILITARY JUDGE ERRED IN DENYING THE DEFENSE MOTION FOR APPROPRIATE RELIEF UNDER RULE FOR COURT-MARTIAL 917 WHERE THE MILITARY JUDGE IMPROPERLY APPLIED ARTICLE 130, UCMJ, HOUSEBREAKING, TO A MOTOR POOL.

Briefs will be filed under Rule 25.

The Army CCA’s opinion in Wilson is available here.

No. 16-0296/AF. U.S. v. Joseph R. Dockery III. CCA 38624. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

I. WHETHER THE MILITARY JUDGE ERRED BY GRANTING, OVER DEFENSE OBJECTION, THE GOVERNMENT’S CHALLENGE FOR CAUSE AGAINST MSGT LW.

II. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY FINDING THAT THE MILITARY JUDGE DID NOT ERR, AND BY CONCLUDING THAT EVEN IF THE MILITARY JUDGE DID ERR THERE WAS NO PREJUDICE, CONTRARY TO THIS COURT’S PRECEDENT IN UNITED STATES v. PETERS, 74 M.J. 31 (C.A.A.F. 2015), UNITED STATES v. WOODS, 74 M.J. 238 (C.A.A.F. 2015),UNITED STATES V. NASH, 71 M.J. 83 (C.A.A.F. 2012), UNITED STATES v. CLAY, 64 M.J. 274 (C.A.A.F. 2007), AND UNITED STATES v. DALE, 42 M.J. 384 (C.A.A.F. 1995).

Briefs will be filed under Rule 25.

The Air Force CCA’s opinion in Dockery is available here.

No. 16-0369/AR. U.S. v. Arturo A. Tafoya. CCA 20140798. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue personally asserted by appellant:

WHETHER THE MILITARY JUDGE UNCONSTITUTIONALLY APPLIED MRE 413 BY DETERMINING THAT A FACTFINDER COULD FIND BY A PREPONDERANCE OF THE EVIDENCE THAT APPELLANT COMMITTED EACH OF THE PRIOR ACTS ALLEGED IN THE THREE SPECIFICATIONS.

Briefs will be filed under Rule 25.

No opinion is available on the Army CCA’s website.

The grants in Wilson and Tafoya are the fourth and fifth cases with Grostefon issues granted this term. The first three are United States v. Caldwell, No. 16-0091/AR (CAAFlog case page), United States v. Nieto, No. 16-0301/AR (discussed here), and United States v. Sewell, No. 16-0360/AR (discussed here).

Additionally, CAAF summary reversed the decision of the Army CCA and remanded for additional proceedings in a case involving a claim of ineffective assistance of counsel also asserted personally by the appellant:

No. 16-0433/AR. U.S. v. James E. Hopkins. CCA 20140913. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following personally asserted issue:

WHETHER APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL.

The decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for further appellate inquiry of the granted issue. The Court of Criminal Appeals will obtain affidavits from civilian and military trial defense counsel that respond to Appellant’s allegation of ineffective assistance of counsel. Under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(c) (2012), the Court of Criminal Appeals shall review the ineffective assistance of counsel issue in light of the affidavits and any other relevant matters. See United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997). If the court determines that a factfinding hearing is necessary, that court shall order a hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). Once the necessary information is obtained, the court will complete its Article 66(c), UCMJ, review. Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2012), shall apply.

Hopkins is the sixth grant of the term of a Grostefon issue. All six are army cases.