CAAFlog » Certified Cases

Last week CAAF summarily affirmed the Army CCA’s decision in United States v. Gould, No. 17-0507/AR:

No. 17-0507/AR. U.S. v. Orval W. Gould, Jr. CCA 20120727. On further consideration of Appellant’s certificate for review and the briefs of the parties, it is ordered that the first and second certified issues are answered in the negative, and therefore, no answer is provided to the third certified issue because to do so would require issuing an advisory opinion. The decision of the United States Army Court of Criminal Appeals is affirmed.

This was the second trip to CAAF for this case. Way back in 2015 CAAF remanded the case for reconsideration in light of United States v. Blouin, 74 M.J. 247 (C.A.A.F. Jun. 25, 2015) (CAAFlog case page). On remand, a two-judge majority of a panel of the CCA applied Blouin to find the the images of a child posing in underwear were not child pornography.

The JAG then certified three issues to CAAF:

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 first of these tracked a dissenting opinion at the CCA that I characterized as doubly wrong in this post discussing the certification. Dissenting from the CCA’s decision, Judge Wolfe asserted that CAAF’s remand deprived the CCA of its power of factual sufficiency review, and that the appellant had already received one such review (in the CCA’s first decision, that didn’t have Blouin to apply).

CAAF’s summary rejection of Judge Wolfe’s narrow view of the CCA’s power aligns nicely with our #4 Military Justice Story of 2016: Power to the CCAs!

But CAAF’s inability to give an advisory opinion means there is still lingering uncertainty about whether CAAF’s opinion in Blouin – in which the court rejected the application of United States v. Knox, 32 F.3d 733 (3d Cir. 1994) (Knox II) – goes so far as to hold that non-nude images can not qualify as lascivious exhibitions of the genitals or pubic area (making an image child pornography).

CAAF will hear the first oral argument of the 2017 term on Tuesday, October 10, 2017, at 9:30 a.m., in the certified Army case of United States v. Jacobsen, No. 17-0408/AR (CAAFlog case page). A single issue challenges the Army CCA’s rejection of an interlocutory prosecution appeal under Article 62, UCMJ:

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.

The case is a general court-martial involving an alleged sexual offense. Sergeant First Class (E-7) Jacobsen is the accused, and his defense includes a focus on the alleged victim’s lack of credibility. Jacobsen’s defense counsel gave an opening statement that promised the members that “over the course of this trial you’re going to hear that [the alleged victim] has told five different stories about what happened on that couch on the evening of Valentine’s Day of this year going into the 15th of February.” Gov’t Div. Br. at 2. Then, on cross-examination of the alleged victim, the defense elicited evidence of numerous prior inconsistent statements about the alleged offense. In response, the prosecution:

sought to call a CID special agent to testify to the victim’s prior consistent statements under Mil. R. Evid. 801(d)(1)(B)(ii). The defense objected.

The military judge ruled that M.R.E. 801(d)(1)(B)(ii) does not apply in this case and that the Government could not admit the victim’s CID statement as rehabilitation evidence. The Government appealed his decision under Article 62, UCMJ.

Gov’t Div. Br. at 3 (citations to record omitted). Mil. R. Evid. 801(d)(1)(B) is part of the hearsay rule and is identical to Fed. R. Evid. 801(d)(1)(B). The federal rule was amended in 2014 in a way that makes any prior consistent statements of a witness non-hearsay, so long as the prior statement is otherwise admissible for rehabilitation (discussed here). The amendment was incorporated into the MCM in 2016 (noted here). The amendment did not, however, change what statements are otherwise admissible to rehabilitate a witness. See Fed. R. Evid. 801 advisory committee note to the 2014 amendment. See also United States v. Adams, 63 M.J. 691, 696-97 (A. Ct. Crim. App. 2006) (discussing circumstances when prior consistent statements are relevant).

Article 62 authorizes a prosecution appeal under certain, limited circumstances. One of them is of “an order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding.” Article 62(a)(1)(B). Based on this authorization, the prosecution appealed the military judge’s ruling that prohibited the CID agent from testifying about the alleged victim’s prior statements.

But the Army CCA did not address the admissibility of the CID agent’s testimony. Rather, it rejected the prosecution’s appeal as unauthorized under Article 62. In a short order the CCA dismissed the appeal, concluding:

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 banc). In contrast, the plain language of Article 62(a)(1), UCMJ, confers appellate jurisdiction for orders or rulings that actually meet specified criteria.

United States v. Jacobsen, No. 20160768, slip op. at 1 (A. Ct. Crim. App. Feb. 6, 2017) (order) (marks in original) (discussed here). The Government Appellate Division sought reconsideration and the CCA reached the same conclusion on March 16, 2017, again highlighting the different language of the civil and military statutes.

The JAG then certified the case to CAAF to determine whether a CCA may determine that a prosecution appeal does not meet the Article 62 criteria despite a trial counsel’s certification that it does.

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CAAF decided the certified interlocutory Army case of United States v. Mitchell, 76 M.J. 413,No. 17-0153/AR (CAAFlog case page) (link to slip op.), on August 30, 2017. Because continued questioning of a suspect after he invokes his right to counsel violates the Fifth Amendment, CAAF finds that the contents of a cell phone must be suppressed because military investigators requested the passcode to decrypt the phone after the suspect requested an attorney. The phone itself, however, need not be suppressed. CAAF affirms (in part) the decision of the Army CCA and of the military judge suppressing the contents of the phone.

Chief Judge Stucky writes for the court joined by all but Judge Ryan, who dissents.

Sergeant (E-5) Mitchell is charged with various offenses at a general court-martial. The prosecution wants to use evidence obtained from Mitchell’s cell phone. But the military judge suppressed the contents of the phone (and the phone itself) because military investigators continued to question Mitchell after he requested an attorney. The investigators had a search authorization for the phone, and had asked Mitchell for the passcode to the device. Mitchell (after requesting counsel) refused to tell them the passcode, but he entered the code into the phone and then entered it two more times to permanently disable the security features for the investigators. The prosecution appealed the suppression ruling under Article 62, the Army Court of Criminal Appeals affirmed the military judge’s 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.

Concluding that “the Government violated [Mitchell’s] Fifth Amendment right to counsel as protected by [Miranda v. Arizona, 384 U.S. 436 (1966)] and [Edwards v. Arizona, 451 U.S. 477 (1981)],” slip op. at 5, Chief Judge Stucky and the majority apply the plain language of Mil. R. Evid. 305(c)(2) (as rewritten in 2013) to suppress the contents of the phone because it is evidence derived from the interrogation after Mitchell requested counsel.

But Judge Ryan dissents because Mitchell merely entered his passcode into the device while he “declined to state or otherwise speak his passcode to the Government. He declined. There is nothing to suppress there.” Diss. op. at 3.

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CAAF docketed two new cases on Monday.

First, the Judge Advocate General of the Navy certified Hale, which I discussed here. The NMCCA reversed Hale’s convictions, and authorized a rehearing, because of a conflict of interest between his lead military defense counsel (a Marine captain, identified as Capt KC), her husband (another Marine captain, who was assigned as a trial counsel but not otherwise involved in the case, identified as Capt CC), and the prosecutor (a Marine lieutenant colonel, who was the regional trial counsel and supervised the husband, identified as LtCol CT). The JAG wants CAAF to review the legal test employed by the CCA:

No. 17-0537/MC. United States, Appellant v. James A. Hale, Appellee. CCA 201600015. Notice is hereby given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 on this date on the following issue:

WHAT IS THE CORRECT TEST WHEN ANALYZING AN INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM BASED UPON A CONFLICT OF INTEREST NOT INVOLVING MULTIPLE REPRESENTATION.

Appellant will file a brief under Rule 22(b) in support of said certificate on or before the 30th day of August, 2017.

The CCA held “that where an appellant demonstrates that his counsel labored under an actual conflict of interest, and where the conflict had an adverse effect on the counsel’s performance, the appellant is entitled to a presumption of prejudice.” Slip op. at 13 (emphasis added).

Second, CAAF granted review in Mangahas, which I previously discussed here. The Air Force CCA granted a Government appeal and reversed a military judge’s ruling that dismissed a charge of rape with prejudice. The dismissal was granted after the military judge found that pre-preferral delay deprived the accused of due process in violation of the Fifth Amendment. CAAF will review the CCA’s decision:

No. 17-0434/AF. U.S. v. Edzel D. Mangahas. CCA 2016-10. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE LOWER COURT ERRED IN FINDING NO DUE PROCESS VIOLATION WHEN THE GOVERNMENT WAS INACTIVE FOR OVER 17 YEARS BEFORE INVESTIGATING A CLAIM OF RAPE, VIOLATING LTCOL MANGAHAS’ FIFTH AMENDMENT RIGHT TO A SPEEDY TRIAL.

Pursuant to Rule 19(a)(7)(A), no further pleadings will be filed.

CAAF decided the certified Army case of United States v. Gurczynski, 76 M.J. 381, No. 17-0139/AR (CAAFlog case page) (link to slip op.) on Monday, July 24, 2017. Rejecting a Government interlocutory appeal of a military judge’s ruling suppressing evidence, CAAF finds that the plain view exception to the Fourth Amendment’s warrant requirement does not apply because the underlying search was unreasonable due to the fact that it was based on a warrant issued for offenses of which the appellant was convicted at a different court-martial nine months prior. CAAF affirms the military judge’s suppression ruling and the decision of the Army CCA.

Judge Ryan writes for a unanimous court.

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. But that discovery occurred five months after Gurczynski’s guilty pleas, and nine months after the warrant was issued.

The circumstances of the search (including that the searcher did not obtain a new warrant after suspecting the presence of child pornography) led to a motion to suppress that was granted by the military judge. The prosecution appealed but the Army court affirmed. The Judge Advocate General of the Army then certified a single, straightforward issue to CAAF:

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.

CAAF heard oral argument on March 15, 2017 (noted here). Then it specified a different issue and ordered additional briefs:

The Fourth Amendment prohibits unreasonable searches. Was the search of [Gurczynski’]s thumb drive unreasonable, despite being executed pursuant to a facially valid warrant, in light of the facts that: 1) [Gurczynski] was convicted of the offense for which the search warrant was issued five months prior to the search; and 2) over nine months had passed between the issuance of the search warrant and the digital examination of the seized devices?

Slip op. at 5. With today’s opinion the court finds that the search was not reasonable, and that the military judge did not err, for three reasons:

First, Appellee [Gurczynski] had already been convicted of the offenses for which the warrant was issued. Second, the warrant and supporting affidavits did not mention child pornography. Third, SA JT [the searcher] nonetheless directed the DFE [digital forensic examination] to search for child pornography.

Slip op. at 5.

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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.