CAAFlog » Certified Cases

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 State 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.

CAAF will hear oral argument in the certified Marine Corps case of Howell v. United States, Nos. 16-0289/MC & 16-0367/MC (CAAFlog case page), on Wednesday, May 11, 2016, at 9:30 a.m. The case presents four issues certified by the Judge Advocate General of the Navy; one certified at the request of the Defense and three certified at the request of the Government:

Defense issue:
I. Whether the Government may invoke Article 66, UCMJ, as the jurisdictional basis for an extraordinary writ pursuant to the All Writs Act when the issue is not included as a basis for Government appeal under Article 62, UCMJ?

Government issues:
II. Whether the military judge, in finding an Article 13, UCMJ, violation, exceeded his authority by rejecting applicable holdings of the U.S. Court of Appeals for the Federal Circuit and the Court of Federal Claims, in order to conclude that appellee was entitled to pay at the A-6 rate pending his rehearing?
III. Whether the lower court erred by concluding that the setting aside of appellee’s findings and sentence rendered his reduction to pay grade E-1 prospectively unexecuted pending rehearing?
IV. If a member’s original sentence includes an executed reduction to pay grade E-1 and the sentence is subsequently set aside, does the action of paying that member at the E-1 rate pending rehearing constitute illegal pretrial punishment in the absence of any punitive intent?

This case was included in our #4 Military Justice Story of 2014, as the appearance of unlawful command influence led to the reversal of a sexual assault conviction with a rehearing authorized. Howell was restored to his rank of E-6 and to full duty pending that second trial. However, even though he wore E-6 rank insignia and performed commensurate duties, he was only paid at the E-1 rate (based on the Government’s interpretation of the applicable military pay statutes).

Howell complained, asserting that he was entitled to be paid as an E-6, and the military judge agreed, finding that the Government’s actions constituted illegal pretrial punishment in violation of Article 13. As a remedy the military judge ordered that Howell receive credit against any sentence to confinement in the form of one day of confinement credit for each day of pay at the E-1 rate.

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CAAF decided the certified Coast Guard Case of United States v. Cooley, 75 M.J. 247, No.s 15-0384/CG & 15-0387/CG (CAAFlog case page) (link to slip op.), on Friday, May 6, 2016. In a lengthy opinion addressing a complicated factual scenario, CAAF affirms the decision of the Coast Guard CCA that dismissed the charges (all but one with prejudice) for violation of Cooley’s right to a speedy trial.

Judge Ryan writes for a unanimous court.

Pursuant to a pretrial agreement Cooley entered conditional pleas of guilty, at a general court-martial composed of a military judge alone, to four offenses: one specification of attempting a lewd act with a child of more than 12 years but less than 16 years, two specifications of attempting to wrongfully commit indecent conduct, one specification of failing to obey an order, and one specification of wrongfully and knowingly possessing apparent child pornography, in violation of Articles 80, 92, and 134. He was sentenced to confinement for seven years, total forfeitures, reduction to E-1, and a bad-conduct discharge. In accordance with the pretrial agreement the convening authority suspended all confinement in excess of 50 months.

The conditional pleas reserved Cooley’s right to appeal the question of whether he was denied his right to a speedy trial. The court-martial occurred in 2013 – the same year that we declared the death of Article 10. However, in late 2014 the Coast Guard CCA found a violation of Cooley’s Article 10 right to a speedy trial, and also a violation of the R.C.M. 707 speedy trial rule, and it dismissed the charges (three with prejudice, one without). In making those findings the CCA also concluded that pretrial confinement is prejudicial to the rights of an accused no matter how well such confinement is justified. The Judge Advocate General of the Coast Guard then certified the case to CAAF with two issues challenging the CCA’s conclusions, and CAAF subsequently granted review of an additional issue:

Certified Issues:
I. Whether the Coast Guard Court of Criminal Appeals erred by finding that pre-trial confinement can serve as per se prejudice for purposes of determining a violation of Article 10, Uniform Code of Military Justice.
II. Whether the facts and circumstances or Appelle’s case, considering the factors set out in Barker v. Wingo, 407 U.S. 514, 530 (1972) and applied to review of Article 10 by United States v. Birge, 52 M.J. 209, 212 (C.A.A.F. 1999), amount to a violation of Article 10, Uniform Code of Military Justice.

Granted Issue:
Whether the government violated Appellant’s rights under Article 10, UCMJ, when the Government possessed key evidence against Appellant on July 20, 2012 and Feberuary 5, 2013, yet made no move to prosecute Appellant for these offenses until June of 2013, despite his pretrial confinement from December 20, 2012.

With yesterday’s decision CAAF issues its most significant Article 10 decision in years. While the court rejects the CCA’s conclusion that pretrial confinement is per se prejudicial, and also overrules the substantial information rule, the court reanimates the seemingly dead Article 10 speedy trial right by castigating the Government for its lack of diligence in avoiding pretrial delays and concluding that “this case is the outlier that warrants the interposition of Article 10, UCMJ, to fill the interstice in speedy trial rights left open by R.C.M. 707.” Slip op. at 13.

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CAAF decided the certified Air Force case of United States v. Williams, 75 M.J. 244, No. 16-0053/AF (CAAFlog case page) (link to slip op.) on Tuesday, May 3, 2016. Concluding that the Air Force Appellate Government Division’s successive motions for reconsideration by the Air Force Court of Criminal Appeals did not toll the 60-day deadline in CAAF’s rules for the filing of a certificate for review, CAAF dismisses the certificate for review as untimely filed.

Judge Stucky writes for a unanimous court.

A general court-martial composed of members with enlisted representation convicted Senior Airman Williams of rape, contrary to his pleas of not guilty. The approved sentence included confinement for two years, reduction to E-1, and a bad-conduct discharge. On appeal, however, the Air Force CCA reversed the conviction after finding that the military judge improperly admitted evidence of a prior alleged sexual offense under Military Rule of Evidence 413. The CCA’s issued its decision on June 19, 2015.

On July 20, 2015, the Government filed a motion for reconsideration with the CCA. That motion was denied four days later. The Government then filed a second motion for reconsideration on August 3, 2015, challenging the denial of the first motion and “asking the AFCCA ‘to reconsider … its order dated 24 July 2015.'” Slip op. at 2. The CCA denied the second motion on August 10, 2015. Almost two months after that – and 75 days after the first motion for reconsideration was denied – the Judge Advocate General of the Air Force certified the case to CAAF. Williams then moved to dismiss the certification on the basis that it was untimely.

Article 67 gives CAAF jurisdiction over three kinds of cases: Capital cases, cases that a Judge Advocate General orders sent to the court for review (known as certified cases), and cases in which the court grants review for good cause shown upon petition of the accused. Article 67 also sets a 60-day jurisdictional deadline for an accused’s petition for review, but no time limit for a JAG’s certification. However, CAAF’s rules (established pursuant to Article 144) set a 60-day non-jurisdictional deadline for certification by a JAG. Both the petition deadline and the certification deadline begin on the later of the date of the CCA’s decision or its action on a petition for reconsideration.

Writing for a unanimous court Judge Stucky finds that the Air Force JAG’s certification of Williams was untimely because the Government’s second reconsideration motion was not a petition for reconsideration of the substantive decision of the CCA, but rather was a petition for reconsideration of the CCA’s denial of the Government first request for reconsideration.

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Disclosure: I authored an amicus brief on behalf of the Marine Corps Defense Services Organization and in support of Chin. 

CAAF decided the certified Air Force case of United States v. Chin, 75 M.J. 220, No. 15-0749/AF (CAAFlog case page) (link to slip op.), on Tuesday, April 26, 2016. Sharply divided, the court concludes that unless an appellant explicitly waives appellate review, Article 66(c) commands a court of criminal appeals to conduct a plenary review of the case including a review to determine whether to leave a trial-stage waiver of an error intact. CAAF affirms the decision of the Air Force CCA that granted limited relief for an unreasonable multiplication of charges despite Chin’s guilty pleas and a pretrial agreement that agreed to waive all waivable motions.

Judge Ryan writes for the court, joined by Chief Judge Erdmann and Senior Judge Sentelle (of the D.C. Circuit, sitting by designation). Judge Stucky dissents, joined by Judge Ohlson.

Chin pleaded guilty, in accordance with a pretrial agreement, to numerous violations of Article 92, 121, and 134, largely related to mishandling classified information. He agreed to waive all waivable motions as part of the pretrial agreement and his defense counsel acknowledged at trial that but for the waiver Chin would have objected to multiplicity for findings and sentence. Chin was sentenced to confinement for twelve months, total forfeitures, reduction to E-2, and a bad-conduct discharge. The convening authority reduced the confinement to ten months but otherwise approved the adjudged sentence. On review, however, and notwithstanding the trial-stage waiver, the Air Force CCA found an unreasonable multiplication of charges for both findings and sentencing purposes, exercising its authority under Article 66(c) to affirm only the findings and sentence that it believed should be approved. As a result, the CCA disapproved three of the specifications, but it approved the sentence as approved by the convening authority.

The Judge Advocate General of the Air Force certified the case to CAAF, challenging the authority of the CCA to grant such relief despite the waiver provision of the pretrial agreement with the following issue:

Whether the Air Force Court of Criminal Appeals (AFCCA) committed legal error by finding that unreasonable multiplication of charges was not waived, in direct contradiction of this court’s binding precedent in United States v. Gladue, 67 M.J. 311 (C.A.A.F. 2009).

In today’s decision CAAF’s majority concludes that the courts of criminal appeals have not only the power to grant relief despite a trial-stage waiver, but also the statutory obligation to conduct a plenary review of the record to determine whether to grant such relief.

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CAAF will hear oral argument in the Marine Corps case of United States v. Sterling, No.s 15-0510/MC & 16-0223/MC (CAAFlog case page), on Wednesday, April 27, 2016, at 9:30 a.m. The case presents specified and certified issues that challenge the lawfulness of an order given to Sterling – a Marine lance corporal (E-3) who posted small, purportedly-religious signs in her workspace – to remove the signs, and also whether (and if so, how) the Religious Freedom Restoration Act applies to Sterling’s conduct:

Specified Issues:
I. Did Appellant establish that her conduct in displaying signs referencing biblical passages in her shared workplace constituted an exercise of religion within the meaning of the Religious Freedom Restoration Act, 42 U.S.C. 2000bb-1 (2012), as amended? If so, did the actions of her superior noncommissioned officer in ordering her to take the signs down, and in removing them when she did not, constitute a substantial burden on appellant’s exercise of religion within the meaning of the Act? If so, were these actions in furtherance of a compelling government interest and the least restrictive means of furthering that interest?

II. Did Appellant’s superior noncommissioned officer have a valid military purpose in ordering appellant to remove signs referencing biblical passages from her shared workplace?

Certified Issues:

I. Did Appellant’s failure to follow an instruction on the accommodation of religious practices impact her claim for relief under the Religious Freedom Restoration Act?

II. Did Appellant waive or forfeit her Religious Freedom Restoration Act claim of error by failing to raise it at trial?

Contrary to her pleas of not guilty Sterling was convicted by a special court-martial, composed of members with enlisted representation, of failure to go to her appointed place of duty, disrespect towards a superior commissioned officer, and four specifications of disobeying the lawful order of a noncommissioned officer, in violation of Article 86, 89, and 91. She was sentenced to reduction to E-1 and a bad-conduct discharge.

Sterling’s court-martial arose out of her contentious relationship with her superiors. She was convicted of offenses for her refusal to wear the service C uniform, her refusal to perform duty handing out vehicle passes, and her refusal to obey an order to remove three signs that she posted in her office workspace. The signs stated “no weapon formed against me shall prosper” and Sterling asserts that they represented the Christian trinity and were posted as an expression of her religious belief. CAAF’s review focuses on the order to remove the signs.

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CAAF decided the certified Air Force case of United States v. Atchak, 75 M.J. 193, No. 16-0054/AF (CAAFlog case page) (link to slip op.), on Tuesday, April 12, 2016. Observing that Article 66(d) permits – but does not require – a court of criminal appeals to authorize a rehearing when it disapproves a finding of guilty, CAAF finds that the Air Force CCA did not abuse its discretion by not authorizing a rehearing in this case. The court answers the certified question in the negative and affirms the CCA’s decision that reversed the appellee’s guilty pleas to aggravated assault for engaging in unprotected sexual contact with two fellow servicemen after the appellee was informed that he is HIV-positive.

Judge Ryan writes for a unanimous court.

The appellee pleaded guilty to two orders violations, one specification of dereliction of duty, and three specifications of aggravated assault by a means likely to cause death or grievous bodily injury in violation of Articles 92 and 128, and was sentenced to confinement for three years, total forfeitures, and a bad-conduct discharge. The orders violations and aggravated assaults arose out of the appellee’s unprotected sexual activity with other Airmen after the appellee was informed that he is HIV-positive and was ordered to inform his partners of his status and only engage in protected sexual activity. On appeal, however, the Air Force CCA applied CAAF’s recent decision in United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. Feb. 23, 2015) (CAAFlog case page), to reverse the pleas of guilty to aggravated assault, finding insufficient evidence of a risk of transmission of HIV from the appellee to his sexual partners. The CCA also found that it could not affirm a conviction of the lesser included offense of assault consummated by a battery because the plea inquiry did not adequately address the defense of consent. Accordingly, the CCA dismissed the assault charge and reassessed the sentence (reducing it to confinement for eight months and a bad-conduct discharge).

The Judge Advocate General of the Air Force then certified the case to CAAF with the following issue:

Whether the Air Force Court of Criminal Appeals erred in setting aside and dismissing the specifications of aggravated assault without authorizing the convening authority to order a rehearing for the lesser included offenses of assault consummated by a battery.

Judge Ryan’s opinion highlights the discretionary nature of a CCA’s decision to authorize a rehearing and resolves this case on the absence of evidence that the Air Force court abused its discretion. But while the Government loses the battle, I think it wins the war.

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CAAF will hear oral argument in the Marine Corps case of United States v. Martin, 15-0754/MC (CAAFlog case page), on Wednesday, April 6, 2016, at 9 a.m., at the Wood Auditorium at the Air Command and Staff College, Maxwell AFB, Alabama. The case presents two issues involving improper human lie detector testimony; the first specified by the court and the second certified by the Judge Advocate General of the Navy:

Specified issue: Whether the Court of Criminal Appeals erred in holding that the human lie detector testimony offered by the alleged victim’s husband was not materially prejudicial.

Certified issue: Did trial defense counsel invite error when he opened the door to human lie detector testimony during the cross-examination of the victim’s husband?

The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer and enlisted members, of one specification of wrongful sexual contact in violation of Article 120(m) (2006). The members sentenced him to reduction to E-1 and a bad-conduct discharge.

The appellant’s conviction arose from an alleged incident involving a female subordinate (identified as “CRI”) who was also the wife of another Marine. While CRI and her husband slept in a bed at a house party, the appellant allegedly entered the room and penetrated CRI’s vagina with his fingers. CRI awoke to this violation, “felt Appellant’s fingers inside her vagina,” and saw the appellant “kneeling on the floor next to the bed.” Gov’t Br. at 3. She didn’t move for “approximately three to five minutes,” and then rolled away from the appellant and unsuccessfully attempted to wake her husband. Gov’t Br. at 4. She then went to the bathroom and cried, and then returned to the bed and fell back asleep. Gov’t Br. at 4. CRI told her military mentor and her husband about the alleged incident within approximately one week of its occurrence, but no report to law enforcement was made until the mentor made a report approximately one year later. Gov’t Br. at 4-5. An investigation followed that report and the appellant was charged.

The appellant’s trial strategy was to attack CRI’s credibility and assert that her allegation was fabricated. This strategy was supported by the fact that CRI’s husband initially disbelieved her allegation, with the husband going so far as to initially believe that he was the one who touched her (if anyone had touched her). The husband testified at trial and was asked by both sides to opine about the truth of his wife’s allegation. He testified about his initial disbelief but that his opinion changed based on his wife’s conduct. Neither side objected to this improper human lie detector testimony, and the NMCCA found that it was plain error for the military judge to admit it. However, the CCA found no prejudice from this error based on four factors: (1) other testimony that CRI was an untruthful person; (2) the likely negligible impact of a husband’s testimony that he believes his wife; (3) the defense role in the error and failure to request a curative instruction, and; (4) the (standard form) instructions ultimately provided to the members. United States v. Martin, No. 201400315, slip op. at 9 (N-M. Ct. Crim. App. Jun. 18, 2015).

CAAF then granted review of the specified issue (questioning the CCA’s finding of harmlessness). The JAG subsequently certified the invited error issue; a certification that I discussed here as strange because the CCA’s opinion specifically noted the defense’s role in the husband’s improper commentary on the truthfulness of his wife’s allegation against the appellant.

The briefs suggest that next week’s oral argument will be lively. While the appellant largely focuses on the centrality of CRI’s credibility to the prosecution’s case, the Government disputes that the trial counsel elicited human lie detector testimony from the husband on direct examination. Instead, the Government makes the incredible assertion that the husband’s direct testimony about her wife’s conduct after the alleged assault was merely the husband’s admissible lay opinion that he could not have touched his wife on the night in question.

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