CAAFlog » Court-Martial News

Last week Marine Staff Sergeant (E-6) Larrabee filed this federal lawsuit seeking declaratory relief that his court-martial conviction is unconstitutional. The suit cites the Declaratory Judgment Act, 28 U.S.C. §§ 2201–02, as the basis for the relief requested.

Larrabee completed 20 years of active duty service in 2015 and requested transfer to the Fleet Marine Corps Reserve (FMCR). The FMCR accepts enlisted Marines with more than 20 but less than 30 years of active duty service, and its purpose is “to maintain a ready manpower pool of trained Marines for recall and mobilization.” MCO 1900.16, para 7001.2. A Marine in the FMCR receives retainer pay (computed at the same rate as retired pay) until the Marine achieves 30 years of service, at which point the Marine may actually retire (by transferring to the retired list). See 10 U.S.C. § 8326. Personnel on the retired list are, of course, subject to court-martial jurisdiction. So too are members of the FMCR. See Article 2(a)(6).

Larrabee transferred to the FMCR on August 1, 2015. At the time of his transfer he was stationed in Iwakuni, Japan, which is a deployed location. Larrabee remained in Iwakuni and got a job managing local bars. Just three months after his transfer to the FMCR, Larrabee video-recorded himself sexually assaulting a woman at one of the bars; a place named Teaserz that is approximately 1000 feet from the gate of the nearby Marine Corps Air Station. The woman worked as a bartender at the bar. She was also the wife of an active-duty Marine sergeant stationed at the nearby Marine Corps Air Station.

The woman reported the assault to military authorities. They interviewed Larrabee, he made a number of admissions, and he was eventually charged with numerous offenses. He pleaded guilty (pursuant to a pretrial agreement) at a general court-martial composed of a military judge alone to sexual assault and indecent recording in violation of Articles 120 and 120c, and was sentenced to confinement for eight years, a reprimand, and a dishonorable discharge.

On appeal, Larrabee challenged the existence of court-martial jurisdiction over him as a member of the FMCR. The NMCCA summarily rejected the challenge in an unpublished opinion available here, and CAAF summarily affirmed, 78 M.J. 107 (C.A.A.F. Aug. 22, 2018). Larrabee then petitioned for certiorari, the Solicitor General opposed cert. on numerous grounds, and the petition was denied last month. Larrabee’s federal suit follows.

The suit faces incredibly long odds of success, not just because the facts of Larrabee’s case raise uniquely military concerns and the Declaratory Judgment Act is an odd tool to try and win reversal of a court-martial conviction that is final and conclusive, but also because Larrabee’s complaint makes a number of remarkably dubious assertions.

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Today’s order list (available here) includes a denial of the petition for certiorari in Larrabee.  The petition (available here) challenged the constitutionality of court-martial jurisdiction over retired members of the armed forces who receive retired pay.

The exercise of such jurisdiction was our #1 Military Justice Story of 2017.

Update (31 Jan, 2120 EST): Numerous edits to the USA Today story were made over the course of the day, and the final paragraph (quoted at the end of this post) addressing lower overall rates of military sexual assault is no longer part of the story. The version of the story discussed in this post is available here.

A few hours ago USA Today published this story alleging that:

Incidents of sexual assault at U.S. military academies spiked nearly 50 percent during the last school year despite years of focus on the issue and declarations of zero-tolerance, according to results of a survey conducted by the Pentagon.

The number of students reporting unwanted sexual contact totaled 747 during the 2017-18 academic year compared with 507 in 2015-16, according to anonymous surveys of cadets and midshipmen. Unwanted sexual contact ranges from groping to rape.

(emphasis added). All the usual suspects reacted in their customary fashion. For example, Congresswoman Speier (D-CA) is quoted in the story as saying, “Clearly what is being done to address sexual assault in our academies is not only not working, it has allowed assault rates to increase a staggering 47 percent.” Additionally, Don Christensen – a retired Air Force judge advocate and President of the advocacy group Protect our Defenders – is quoted as saying, “Clearly there’s a cultural problem at the academies.”

Wait just one minute.

The DoD conducts an annual assessment of the Military Service Academies to determine the effectiveness of its sexual assault prevention programs, as required by Section 532 of the FY 2007 NDAA. The assessment is called the Annual Report on Sexual Harassment and Violence at the Military Service Academies, and it is conducted on a Academic Program Year basis. The USA Today story appears to be based on the results of the most recent assessment, for Academic Program Year 2017-2018. The report is available on the DoD Sexual Assault Prevention and Response Office website, and it disproves the USA Today story.

Let’s start with the top-line assertion in the USA Today story that:

Incidents of sexual assault at U.S. military academies spiked nearly 50 percent during the last school year. . .

That’s false. Totally fake news.

At the outset, while an increase from 507 (in 2015-2016) to 747 (in 2017-2018) is, indeed, nearly a 50% increase, that timespan is two school years, not one. But that’s not what makes the assertion fake news. Rather, it’s fake news because the underling number is an estimate.

Last year’s report (for Academic Program Year 2016-2017) explained the 507 number as follows:

The Department tracks prevalence estimates over time and compares them to reports received as one of its measures of progress. As illustrated in Exhibit 5, estimated rates of past-year USC [unwanted sexual contact], measured in APY 15-16, indicate that about 507 cadets and midshipmen indicated experiencing some form of USC during the APY, suggesting that the 64 reports received last year involved about 13% of the estimated number of victimized cadets and midshipmen.

App. D. at 9 (all emphasis added) (direct link). Put differently, the 507 number was an estimate of an indication of an experience of some form of unwanted sexual contact, which is not the same thing as USA Today’s reported “incidents of sexual assault at U.S. military academies.”

The 747 number is also just an estimate of an indication of an experience, as explained by the current (Academic Program Year 2017-2018) report:

Results from the 2018 SAGR estimate that about 747 cadets/midshipmen experienced some form of USC in the past-year, compared to 92 reports of sexual assault received by DoD from cadets/midshipmen for an incident that occurred during military Service.

2017-2018 report, Appendix D at 11 (emphasis in original) (direct link). A footnote adds:

SAGR prevalence is only an estimation. DoD uses these estimates to measure the scope of sexual assault and the degree of underreporting at each academy.

2017-2018 report, Appendix D at 11 n.10 (double emphasis in original) (direct link). That is also not the same thing as USA Today’s reported “incidents of sexual assault at U.S. military academies.”

SAGR – by the way – refers to the Service Academy Gender Relations Survey, which is a survey conducted every other year. It was conducted in 2016 and in 2018. The 2016 report is available here, and the 2018 report is available here. The 2016 report explained the results with this language:

It should also be noted that all results are based on self-reported data provided by survey respondents. Accordingly, results describe experiences that respondents indicated experiencing but may not be interpreted as evidence that an event(s) occurred. All references to “behaviors experienced” should be interpreted as “behaviors reportedly experienced.”

2016 Report at viii (direct link (loads slowly)). That is also not the same thing as USA Today’s reported “incidents of sexual assault at U.S. military academies.”

I can’t find the 747 number in the 2018 SAGR report, but the 2016 SAGR report did include the 507 number, with this explanation:

Across all DoD Academies, 4.0% of students (women and men combined) indicated they experienced unwanted sexual contact since June 2015. This represents about 1 in 8 women (12.2%) and 1 in 60 men (1.7%). Based on the 9,376 eligible respondents from a census of 12,564 students, a constructed 95 percent confidence interval ranges from 485 to 529 students, with a point estimate of 507 students who indicated experiencing unwanted sexual contact in the past academic program year (APY).

2016 Report at x (direct link (loads slowly)). You can draw your own conclusions about those percentages, but USA Today’s report of “507 [incidents of sexual assault] in 2015-16” is fake news.

The USA Today story does, however, include some real news about military sexual assault. The very last paragraph explains:

There has been some progress: rates of sexual assault for active duty men and women decreased between 2016 and 2014 and are at the lowest level since 2006, according to the Pentagon.

(emphasis added).

CAAF will hear oral argument in the Marine Corps case of United States v. Hutchins, No. 18-0234/MC (CAAFlog case page), on Wednesday, January 23, 2019, at 9:30 a.m. This is CAAF’s third review of the long-running prosecution of Sergeant (E-5) Hutchins for his participation in a 2006 kidnap-murder conspiracy in Iraq that is colloquially known as the Hamdania incident.

Hutchins was first convicted in 2007 of conspiracy, false official statement, unpremeditated murder, and larceny. He was sentenced to reduction to E-1, a reprimand, confinement for 15 years, and a dishonorable discharge. The convening authority disapproved the reprimand and all confinement in excess of 11 years.

The Navy-Marine Corps CCA reversed Hutchins’ convictions in 2010 (decision analyzed here), but CAAF reversed the CCA’s decision in 2011 (noted here). On remand in 2012, the CCA affirmed the findings and the sentence (noted here). But CAAF reversed that decision too, and then it set aside Hutchins’ convictions and authorized a rehearing in United States v. Hutchins, 72 M.J. 294 (C.A.A.F. 2013) (CAAFlog case page).

The rehearing occurred in 2015, and Hutchins was again convicted of conspiracy, murder, and larceny. The conspiracy conviction, however, implicated conduct of which Hutchins was acquitted at the first trial. Specifically, Hutchins was originally charged with a conspiracy to commit six offenses (larceny, housebreaking, kidnapping, false official statements, murder, and obstructing justice), and the charge alleged 21 overt acts in furtherance of that conspiracy. The members of the first court-martial found Hutchins not guilty of two of the six alleged offenses (housebreaking and kidnapping) and two of the alleged 21 overt acts, and was also acquitted of other charged offenses (including premeditated murder and obstruction of justice). Nevertheless, at the 2015 rehearing the prosecution introduced evidence of all six possible objects of the conspiracy, and it also introduced evidence of the other offenses of which Hutchins was acquitted. The prosecution was allowed to do that because the military judge found that evidence admissible for the limited purpose of proving that Hutchins had a plan to commit the charged offenses (that he had been convicted of committing at the first trial).

Hutchins claims that violated the constitutional prohibition against double jeopardy on the basis of collateral estoppel or issue preclusion (different names for the same thing). The Supreme Court recently explained that:

In criminal prosecutions, as in civil litigation, the issue-preclusion principle means that “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe v. Swenson, 397 U. S. 436, 443 (1970).

Bravo-Fernandez v. United States, 137 S. Ct. 352, 356 (2016). The NMCCA rejected Hutchins’ claim of error, and CAAF granted review of a single issue:

Whether the military judge erred when he denied the defense motion to suppress evidence of conduct for which Appellant had been acquitted at his first trial.

Hutchins argues that the military judge did err, and that the error affected all of the charges and so they should all be dismissed with prejudice and he should be freed from any criminal consequences for his involvement in the killing.

The Navy-Marine Corps Appellate Government Division argues that issue preclusion doesn’t apply to the facts of this case, and also that it doesn’t apply to any rehearing.

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This week at SCOTUS: The Solicitor General filed this response in opposition to the cert petition in Larrabee. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking one case:

This week at CAAF: The next scheduled oral arguments at CAAF are on January 22, 2019.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on January 16, 2019, at 2 p.m.:

United States v. Pacheco, No. 20170177

Issues:
I. Whether the evidence was legally sufficient to convict appellant of child endangerment (Specification 1 of Charge II).

II. Whether the military judge erred in denying defense counsel the ability to cross-examine JP on prior specific acts of violence and present evidence of JP’s prior acts of violence through defense witnesses.

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Laubach, No. 39396, on January 16, 2019, at 10 a.m. No additional information is available on the CCA’s website.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on January 31, 2019.

Here is an AP news story about the arrest and indictment of Navy Captain John Nettleton – who is on active duty – for obstruction of justice, concealment of material facts, falsification of records, and making false statements in connection with a 2015 investigation into the death of a civilian employed at Naval Station Guantanamo Bay. Nettleton was the commander of the installation at the time of the death.

The nine-count indictment is available here.

Yesterday, Washington Post reporter Dan Lamothe published this report about the Grazioplene case. It provides a pretty comprehensive overview of situation that we’ve been watching for about 16 months, and begins:

For retired Maj. Gen. James J. Grazioplene, getting arrested and photographed in an orange jumpsuit in Northern Virginia this month was the latest humiliation following a lengthy military investigation in which the Army charged him with rape, only to have the case dismissed on a technicality.

For his daughter and military prosecutors, it was something else: a second chance at seeing whether a court will convict Grazioplene of rape.

Jennifer M. Elmore, 47, said in an interview that she first reported to the Army in 2015 that her estranged father had sexually abused her when she was a child. The service investigated for two years before bringing a case against Grazioplene in April 2017.

Retired Army Major General James J. Grazioplene – who last year was charged with committing rape on six occasions while on active duty in 1983-1989, but whose case was dismissed in the wake of CAAF’s decision in Mangahas – now faces prosecution in Virgina, according to this Army Times report:

Retired Maj. Gen. James Grazioplene faces three charges of incest and three charges of rape related to allegations of rape of a minor dating back to his time in service over the course of years in various locations.

Grazioplene now lives in Gainesville, Virginia. He faces charges lodged against him out of Prince William County Circuit Court.

The report notes:

Virginia does not have a statute of limitations on rape cases.

According to the county court records, Grazioplene is being charged with rape and incest after the case was heard by a grand jury earlier this month. The document lists the offense date as Aug. 1, 1987.

At the time, he and his family lived in Woodbridge, Virginia, which is in Prince William County.

Defense counsel for CDR Bryce Benson, the former USS Fitzgerald CO, filed a wide ranging motion to dismiss claiming unlawful command influence at the highest levels of the Navy (Navy Times coverage here). Navy Times reports that the motion asks for dismissal of all charges based on conduct by the CNO, VCNO, Navy JAG (Vice Admiral Crawford), and others:

In a 28-page filing punctuated by broadsides against the Navy’s top leaders, Benson’s defense attorneys take aim at both Chief of Naval Operations Adm. John Richardson and Vice Chief of Naval Operations Adm. Bill Moran for statements that blamed Benson for the June 17, 2017, disaster that killed seven sailors.

“CNO and (VCNO), in coordination with other senior Navy leaders, have so frequently blamed Commander Benson for his ship’s collision that no panel could fairly sit at his court-martial,” attorney Lt. Cmdr. Justin Henderson wrote in a motion filed Wednesday.

More to follow. Anyone that can send us a copy of the motion, please do.

Significant military justice event this week: The 6th annual Joint Appellate Advocacy Training is this Tuesday-Thursday, September 18-20, 2018 at the Rosenthal Theater, Fort Myer-Henderson Hall in Arlington, VA. Additional details here.

This week at SCOTUS: A petition for certiorari (available here) was filed in Larrabee v. United States, No. 18-306, on Friday, September 14, 2018. The petition challenges the constitutionality of court-martial jurisdiction over retired members of the armed forces who receive retired pay. The exercise of such jurisdiction was our #1 Military Justice Story of 2017.

Staff Sergeant Larrabee is a retired member of the Marine Corps who pleaded guilty to sexual assault and indecent recording (offenses that occurred after he transferred to the retired list) and was sentenced to confinement for 8 years, a reprimand, and a dishonorable discharge. All confinement in excess of 10 months was suspended pursuant to a pretrial agreement. The Navy-Marine Corps CCA affirmed the findings and sentence in 2017 (link to slip op.). CAAF granted review as a trailer to United States v. Dinger, 77 M.J. 447 (C.A.A.F. Jun. 18, 2018) (CAAFlog case page), and then summarily affirmed in light of Dinger in August.

I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking two cases:

This week at CAAF: CAAF completed its oral argument calendar for the 2017 term. Details about the cases reviewed by CAAF this term are available on our 2017 Term of Court page. The 2018 term begins on October 1, 2018. The next scheduled oral argument at CAAF is on October 23, 2018.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on September 26, 2018.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on October 2, 2018.

The long-running court-martial prosecution of Marine Sergeant Hutchins, for his participation in a 2006 kidnap-murder conspiracy in Iraq that is colloquially known as the Hamdania incident, will be reviewed by CAAF for a third time.

Hutchins was first convicted in 2007 of conspiracy, false official statement, unpremeditated murder, and larceny. He was sentenced to reduction to E-1, a reprimand, confinement for 15 years, and a dishonorable discharge. The convening authority disapproved the reprimand and all confinement in excess of 11 years.

On appeal, the Navy-Marine Corps CCA reversed Hutchins’ convictions because it found that Hutchins’ military defense counsel was improperly released from the case upon his end of active duty service (decision analyzed here). Hutchins was released from confinement while the Judge Advocate General of the Navy certified the case to CAAF. But CAAF reversed the CCA’s decision in 2011, finding the release of Hutchins’ defense counsel to be harmless (noted here) (link to slip op.), and Hutchins was returned to confinement.

After CAAF’s 2011 decision, the Navy-Marine Corps reviewed Hutchins’ case for a second time, and it affirmed the findings and the sentence (noted here). CAAF then granted review (noted here) and, in 2013 it reversed Hutchins’ convictions because military investigators unlawfully reinitiated communications with Hutchins after he requested an attorney (leading to a confession that was erroneously admitted at trial) United States v. Hutchins, 72 M.J. 294 (C.A.A.F. 2013) (CAAFlog case page).

CAAF authorized a rehearing, a rehearing was ordered, and Hutchins was again convicted.

During Hutchins’ second trial, the prosecution offered evidence of uncharged acts as proof of Hutchins’ plan to commit the charged acts. Some of those uncharged acts, however, were the basis for charges of which Hutchins was found not guilty at his first trial. Hutchins’ defense counsel opposed the prosecution’s tactic at the second trial, arguing that the prior acquittal barred the subsequent use of the acts. The military judge disagreed, and the Navy-Marine Corps CCA affirmed with a lengthy analysis that ultimately relied on Mil. R. Evid. 404(b) to hold that the uncharged acts (including acts implicating the acquittals) were “proof of motive, intent, preparation, plan, and an absence of mistake or accident with regard to the charges against [Hutchins], particularly conspiracy to commit murder and murder.” United States v. Hutchins, No. 200800393, slip op. at 23 (N.M. Ct. Crim. App. Jan. 29, 2018) (link to slip op.).

CAAF will now review that issue:

No. 18-0234/MC. U.S. v. Lawrence G. Hutchins III. CCA 200800393. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED WHEN HE DENIED THE DEFENSE MOTION TO SUPPRESS EVIDENCE OF CONDUCT FOR WHICH APPELLANT HAD BEEN ACQUITTED AT HIS FIRST TRIAL.

Briefs will be filed under Rule 25.

In a brief memo released on Monday (available here), Secretary of Defense James Mattis asserts that the burdens of the military justice system are worth the cost:

Time, inconvenience, or administrative burdens are no excuse for allowing substandard conduct to persist.

The military justice system is a powerful tool that preserves good order and discipline while protecting the civil rights of Service members. It is a commander’s duty to use it. Military leaders must not interfere with individual cases, but fairness to the accused does not prevent military officers from appropriately condemning and eradicating malignant behavior from our ranks. Leaders must be willing to choose the harder right over the easier wrong. Administrative actions should not be the default method to address illicit conduct simply because it is less burdensome than the military justice system. Leaders cannot be so risk-adverse that the lose their focus on forging disciplined troops ready to ferociously and ethically defeat our enemies on the battlefield.

(emphasis in original). That all assumes that the behavior at issue is actually improper – under both the facts of the case and the law – rather than merely subjectively undesirable.

A reader reports that on July 6, 2018, Senior Airman Andrew Witt was resentenced by a panel of officer and enlisted members to life without the possibility of parole.

Witt’s 2005 conviction of the premeditated murder of a fellow Airman and his wife, and of the attempted murder of another Airman, earned him a death sentence. The Air Force CCA reversed the sentence – finding that Witt’s defense team was deficient in failing to investigate three areas relevant for sentencing – in United States v. Witt, 72 M.J. 727 (A.F. Ct. Crim. App. 2013) (en banc) (noted here). But the Air Force Appellate Government Division sought reconsideration and, in a dramatic reversal, the CCA reinstated Witt’s death sentence in United States v. Witt, 73 M.J. 738 (A.F. Ct. Crim. App. 2014) (en banc) (discussed here). That reversal of fortune was our #7 Military Justice Story of 2014.

CAAF then conducted a mandatory review of the case (because it involved a sentence to death), but the court limited oral argument to just two issues: Whether an en banc CCA can reconsider a prior en banc decision, and whether such reconsideration is permitted when the composition of the court changes from the first decision to the second. In a short and unanimous opinion issued in 2016 CAAF concluded that such reconsideration is allowed but that three judges who participated in the reconsideration in Witt’s case were disqualified from doing so. CAAF then set aside the CCA’s second decision and reinstated the first decision (that set aside the death sentence), remanding the case for a sentence rehearing. (CAAFlog case page).

This morning the Supreme Court denied certiorari in Bales v. United States, No. 17-1583 (CAAFlog news page).

In a decision issued today and available here, Judge Lamberth grants Marine Corps Brigadier General John Baker a writ of habeas corpus and vacates the contempt finding made by military commissions judge Air Force Colonel Vance Spath.

Our (somewhat extensive) prior coverage is available here.

Judge Lamberth concludes:

Judge Spath summarily convicted General Baker of criminal contempt and sentenced him for that criminal contempt. Contempt is an offense under Chapter 47A. But Judge Spath’s actions were unlawful because only a military commission acting through its regularly constituted members is authorized to convict a person of any offense under Chapter 47A. And a military judge is not a member of a military commission nor is he “the military commission” within the meaning of that chapter. For this reason the Court will GRANT General Baker’s Petition, issue the writ he requests, and vacate his conviction.

Op. at 27. This conclusion turns on an important difference between the contempt power of a courts-martial and that of a commission. Article 48, 10 U.S.C. § 848, (the court-martial power) begins:

A judge detailed to a court-martial, a court of inquiry, the United States Court of Appeals for the Armed Forces, a military Court of Criminal Appeals, a provost court, or a military commission may punish for contempt. . .

While 10 U.S.C. § 950t(31) (the commission power) begins:

A military commission under this chapter may punish for contempt. . .