CAAFlog » Court-Martial News » Sgt Hutchins

CAAF decided the Marine Corps case of United States v. Hutchins, 78 M.J. 437, No. 18-0234/MC (CAAFlog case page) (link to slip op.), on Wednesday, May 29, 2019. In its third review of this long-running prosecution, CAAF finds that no issue of ultimate fact was determined by Hutchins’ acquittal of certain offenses in his first trial and also that the prosecution could prove all the elements of the offenses at his second trial without invoking the elements of the acquitted offenses. Accordingly, the doctrine of issue preclusion – as embodied by the Double Jeopardy Clause of the Fifth Amendment and codified in Rule for Courts-Martial 905(g) – does not apply, and CAAF affirms the decision of the NMCCA that affirmed the findings and sentence.

Judge Ohlson writes for a unanimous court.

Sergeant (E-5) Hutchins was tried twice by general court-martial for his participation in a 2006 kidnap-murder conspiracy in Iraq that is colloquially known as the Hamdania incident. His first court-martial was in 2007 and resulted in convictions of conspiracy, false official statement, unpremeditated murder, and larceny, but acquittals of other related offenses. Hutchins was sentenced to reduction to E-1, a reprimand, confinement for 15 years, and a dishonorable discharge, however the convening authority disapproved the reprimand and all confinement in excess of 11 years.

A roller-coaster of appellate litigation followed. The Navy-Marine Corps CCA initially reversed Hutchins’ convictions in 2010 (decision analyzed here), but CAAF reversed the CCA’s decision in 2011 (noted here). On remand in 2012, the NMCCA 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. Those convictions, however, implicated conduct that that was also implicated by the offenses that Hutchins’ was acquitted of at the first trial. Specifically, the prosecution was allowed to introduce evidence implicating the acquitted offenses in order to prove that Hutchins had a plan to commit the charged offenses (that he had been convicted of committing at the first trial). Hutchins claimed that violated the constitutional prohibition against double jeopardy on the basis of collateral estoppel or issue preclusion (different names for the same thing), and CAAF granted review to determine:

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.

Judge Ohlson’s opinion for the unanimous CAAF holds that issue preclusion does not apply to the facts of Hutchins’ case and so the military judge could properly apply Mil. R. Evid. 403 and 404(b) to the prosecution’s evidence that implicated the acquitted offenses. Furthermore, because Hutchins “does not meaningfully contest the military judge’s application of those rules on their own terms,” CAAF does not review the military judge’s underlying ruling admitting the evidence.

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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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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.

LA Times story here.

According to a Los Angeles Times report available here, the Government has failed to compel five witnesses to testify during the retrial of Marine Sergeant Hutchins:

Dspite offers of immunity from prosecution, four ex-Marines and a former Navy corpsman have refused to testify against Sgt. Lawrence Hutchins in his retrial in the 2006 killing of an Iraqi.

The five — all of whom were convicted in the killing and served time in the brig — asserted their 5th Amendment right against self-incrimination during the court martial last week at Camp Pendleton.

Undeterred, the Government presses on:

Over [the defense counsel’s] objection, the judge ruled that the prosecution could submit as evidence verbatim transcripts of the squad members’ previous testimony.

Associated Press (via the Washington Post) story here. All of our prior coverage here.

On May 8, CAAF denied review in Easterly, and denied the Hutchins writ petition without prejudice.

Easterly involves a decision of the NMCCA finding harmless error in the military judge’s denial of a defense motion for relief from unlawful command influence based on the Heritage Brief (a presentation given numerous times by the Commandant of the Marine Corps). I discussed Easterly in this post, and Phil discussed the case in this post.

Curiously, CAAF’s daily journal entry states (without explanation) that Judge Ryan did not participate in Easterly.

In the long-running Hutchins (CAAFlog news page; CAAFlog case page), Sergeant Hutchins has raised multiple UCI-based objections to the personnel of the court-martial, and then sought a writ of mandamus directly from CAAF. Denying the request, CAAF ruled:

Misc. No. 14-8016/NA.  Lawrence G. HUTCHINS III, Petitioner v. Michael B. RICHARDSON, Colonel, United States Marine Corps, In his official capacity as Military Judge, and United States, Respondents.  On consideration of the petition for extraordinary relief in the nature of a writ of mandamus and prohibition, it is ordered that said petition is hereby denied without prejudice.

I just noticed an update to CAAF’s daily journal (available here), showing that the court granted review of two issues in the Air Force case of United States v. McFadden, No. 37438 (A.F.Ct.Crim.App. Sep. 26, 2013) (discussed here) (link to unpub. op.):

I. WHETHER THE AFCCA ERRED WHEN IT HELD THAT THE MILITARY JUDGE DID NOT ABUSE HIS DISCRETION BY FAILING TO EXCUSE FOR CAUSE A COURT MEMBER WHO ACCUSED APPELLANT OF LYING BY OMISSION BY EXERCISING HER ARTICLE 31(b), UCMJ, RIGHT TO REMAIN SILENT.

II. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY DENYING DEFENSE COUNSEL’S REQUEST FOR A MISTRIAL AFTER A COURT MEMBER ACCUSED APPELLANT OF LYING BY OMISSION BY EXERCISING HER ARTICLE 31(b), UCMJ, RIGHT TO REMAIN SILENT.

McFadden is one of the uncertified cases I discuss in my post about apparent bias in Air Force TJAG certifications. I’ve updated the post to reflect the grant.

In other docket news, Marine Sergeant Hutchins (full coverage here) has asked CAAF for a writ of mandamus.

Misc. No. 14-8016/NA.  Lawrence G. HUTCHINS III, Petitioner v. Michael B. RICHARDSON, Colonel, United States Marine Corps, In his official capacity as Military Judge, and United States, Respondents.  Notice is hereby given that a petition for extraordinary relief in the nature of a writ of mandamus and prohibtion was filed under Rule 27(a) on this date.

Notably, this isn’t docketed as a writ-appeal of a decision of the NMCCA, but is a direct appeal to CAAF. As discussed in this post, Sergeant Hutchins has objected to anyone who is subordinate to the Secretary of the Navy serving as military judge in his case.

In last Friday’s news, I noted that Senator Gillibrand announced that her “Military Justice Improvement Act” legislation would come to the Senate floor for a vote this week. And earlier this week Sam discussed a competing proposal from Senator McCaskill. But it seems that Senator Gillibrand’s announcement was premature. The legislation doesn’t appear among the Senate’s votes from this week, and the Senate will meet only in pro forma sessions from now until the afternoon of Monday, February 24 (according to a unanimous consent reached during Wednesday’s session).

Sergeant Hutchins has been arraigned, trial is set for August, and the military judge denied Hutchins’ motion for him to recuse himself, according to this NBC San Diego story from Thursday that includes the following:

Hutchins claims that the judge and the defense attorney appointed for him cannot fairly participate in his case because they are unduly influenced by the Secretary of the Navy, who has publicly commented about Hutchins’ guilt.

In an interview after today’s hearing, Hutchins told reporters that any judge or defense attorney appointed by the Defense Service Organization is compromised because “they don’t want to go against the Secretary of the Navy.”

In the Naval Academy football players’ case, an Associated Press story details a major hurdle for the prosecution:

The judge, Col. Daniel Daugherty, asked prosecutors to tell to him how they plan to prove their theory of the case against Joshua Tate of Nashville, Tenn., who has been charged with aggravated sexual assault and lying to investigators. Prosecutors will respond in writing by the end of the week. Daugherty suggested he would then rule at some point next week on a motion by Tate’s lawyers that he dismiss the case for lack of evidence.

Various media outlets are closing in on command investigations addressing some of the circumstances surrounding Staff Sergeant Bales’ massacre of 16 Afghan civilians (for which he was sentenced to confinement for life without the possibility of parole after pleading guilty):

After Bales’ court-martial, The News Tribune and KUOW submitted FOIA requests to the Army seeking what is known as a command climate investigation. The Army carried out that inquiry to assess whether senior soldiers around Bales could have prevented the crimes.

Finally, a sexual assault case that Air Force Lieutenant General Franklin dismissed after an Article 32 investigation, leading his superiors to remove the General from the case, is now being re-investigated:

Wright faced an Article 32 last year to determine if there was enough evidence to proceed to court martial. But Third Air Force commander Lt. Gen. Craig Franklin elected in August to drop the charges, while refusing the alleged victim’s request to meet with him.

The unusual do-over that began Tuesday at Joint Base Andrews was ordered by top Air Force officials concerned with decision-making by Franklin. The general, who announced he would retire last week, became a lightning rod for criticism of the military’s handling of sex crimes after he overturned the sexual assault conviction of a fighter pilot last February.

His decision was a key rallying point for legislators, victim’s advocates and others who want to change the Uniform Code of Military Justice to strip military commanders of control over prosecutions. The Pentagon and the service branches, however, have argued such a move would hurt military order and discipline.

Outside the hearing this week, the accuser’s special victims counsel — an Air Force attorney who works specifically for the victim’s interests, rather than for the prosecution or defense — said the previous Article 32 was biased against the woman, and featured badgering questioning from the investigating officer.

According to this San Diego Union-Tribune story dated today, Sgt Hutchins – whose murder conviction was reversed in United States v. Hutchins, No. 12-0408/MC (C.A.A.F. 2013) (CAAFlog case page), and whose retrial was last mentioned by Mike in this post – wants new detailed defense counsel based on the fact that the appellate military judge who disagreed with him at the NMCCA is now the Chief Defense Counsel of the Marine Corps

The potential conflict originates from public comments made in November 2009 by Navy Secretary Ray Mabus, comments that Hutchins unsuccessfully argued had tainted his appeals process. The judge who ruled against Hutchins on that issue on a Navy-Marine Corps Court of Criminal Appeals panel, Col. Joseph Perlak, is now chief defense counsel of the Marine Corps.

Hutchins asked that Navy Capt. Paul LeBlanc, who oversaw the reversal last year by the military’s highest appeals court of Hutchins’ convictions, serve as acting chief defense counsel for the retrial. He also requested a new military judge, telling Col. Michael Richardson “I object to you or anyone else who falls under the Secretary of the Navy being my military judge.”

Mabus, who is traveling overseas, has previously declined to comment on allegations by Hutchins of unlawful command influence.

Richardson declined to recuse himself from Wednesday’s hearing at Camp Pendleton and said he doubted there were grounds to disqualify him as judge for the court martial. But he granted the request to delay arraignment until Feb. 13, giving the Marine defense chain of command time to evaluate whether a conflict of interest exists and, if needed, assign new counsel.

“I’m not going to go further until we ensure there is an attorney sitting next to you fully capable of representing you,” Richardson said.

Capt. Eric Skoczenski told the military judge that he agreed with Hutchins that he should be removed as defense counsel, because of a “potential and inevitable conflict of interest” arising from his chain of command.

The government objected, with Marine Capt. Peter McNeilly saying “there is no conflict in our eyes. … The allegations against Col. Perlak we believe are spurious.”

The use of the hard word “spurious” threw me for a bit, as there is plenty of support for the motion for  a new defense counsel (and the detailed counsel’s agreement that there is a conflict is likely dispositive). But the word appears to be in response to the following Defense claim (found on the second page of the article):

In a motion filed late Tuesday to suspend the proceedings until he could be assigned a “conflict-free judge advocate,” Hutchins signaled that his defense at court martial would include litigating the issue of possible unlawful command influence because of Mabus’ public comments. “One aspect of this litigation will include developing evidence that Col Perlak’s decision … was tainted by both actual and apparent unlawful command influence,” it says.

Though, that doesn’t actually provide any more support for the use of “spurious,” considering the independence of the CCA was challenged in Hutchins’ brief to CAAF (as discussed in my argument preview).

Thanks to reader M for the news tip.

Speaking of Hutchins, here is LA Times coverage of the decision to retry Sergeant Hutchins for the alleged 2006 murder of an unarmed Iraqi civilian in Hamdaniya

CAAF’s daily journal for yesterday has this entry:

No. 12-0408/MC.  U.S. v. Lawrence G. HUTCHINS III. CCA 200800393.  On consideration of Appellee’s petition for reconsideration of this Court’s decision, and Appellant’s motion to issue the mandate of the Court forthwith, it is ordered that Appellee’s petition for reconsideration be, and the same is, hereby denied, and Appellant’s motion to issue the mandate of the Court forthwith be, and the same is, hereby granted.

And:

MANDATES ISSUED

No. 12-0408/MC.  U.S. v. Lawrence G. HUTCHINS III. CCA 200800393.

Here are the Government’s petition for reconsideration, Appellant’s answer, and a motion by Appellant asking CAAF to issue its mandate forthwith.

The Government’s petition concludes:

In summary, the Supreme Court has consistently held that Edwards and its progeny are intended to apply a clear, bright-line prophylactic rule “to prevent police from badgering a defendant into waiving his previously asserted Miranda rights.” Minnick, 498 U.S. at 150. In this case, not only was Edwards not violated, but there is no evidence of badgering, coercion, or any other improper influence upon Appellant by the police or other Government representatives. On the contrary, Appellant clearly demonstrated a desire to “tell his side of the story,” and persisted in this desire after sleeping on his decision overnight. (J.A. 128.) This reinitation was voluntary, and his subsequent waiver of his right to counsel was knowing and intelligent. This Court should therefore reconsider its application of Edwards, assess the facts and circumstances surrounding Appellant’s subsequent waiver, and affirm the decision of the Court below.

Appellant’s response is, in a word, blunt:

The Government’s Petition for Reconsideration, in direct contradiction to Buber and Rule 32, simply restates arguments already presented and rejected by this Court. Indeed, Petitioner fails to even make a prima facie claim that it is offering new argument, and never specifically alleges that this Court “misapprehended” or “overlooked” facts or law. C.A.A.F. R. 32. This Court should therefore summarily dismiss the petition for non-compliance with Rules 31 and 32.

CAAF decided United States v. Hutchins, No. 12-0408/MC, 72 M.J. 294 (CAAFlog case page) (link to slip op.), on June 26, 2013, finding that the Naval Criminal Investigative Service (NCIS) unlawfully reinitiated communications with Appellant after he requested an attorney, leading to a confession that was erroneously admitted at trial, and that the error was not harmless beyond a reasonable doubt. CAAF reverses the trial military judge’s ruling admitting the confession and the Navy-Marine Corps CCA, and sets aside the findings and sentence. The court does not reach the second issue, which questioned whether the Secretary of the Navy’s post-trial remarks constitute unlawful command influence.

Judge Erdmann writes for the court, joined by Judge Stucky and Senior Judge Effron. Judge Ryan writes separately, concurring in the result and also addressing the Secretary’s comments and finding that they resulted in the appearance of unlawful command influence. Chief Judge Baker dissents, finding no error in the admission of Appellant’s confession because he initiated the communication with NCIS, and finding that Appellant failed to meet his burden to show “some evidence” of unlawful command influence.

Appellant, Sergeant Hutchins, U.S. Marine Corps, was tried in 2007 by a general court-martial composed of members with enlisted representation, and convicted contrary to his pleas of conspiracy, false official statement, unpremeditated murder, and larceny, in violation of Articles 81, 107, 118, and 121, UCMJ. Appellant’s conviction resulted from his participation a 2006 kidnap-murder conspiracy in Iraq that is colloquially known as the “Hamdania incident.” 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.

This case was at CAAF for the second time. The first time, CAAF reversed in part a decision of the NMCCA (Hutchins I) that  set-aside the findings after the CCA determined that Appellant’s detailed defense counsel was improperly released from the representation upon his end of active service. The CCA’s opinion resulted in Appellant’s brief release from confinement. After CAAF’s ruling reversing the CCA (Hutchins II), Appellant was returned to the brig, and the case was returned to the CCA for further consideration. On remand, the NMCCA affirmed the findings and sentence (Hutchins III). CAAF then granted review of two issues, both of which were considered by the NMCCA in Hutchins III:

I. Whether the findings and sentence must be dismissed with prejudice where unlawful command influence from the Secretary of the Navy has undermined substantial post-trial rights of the Appellant.

II. The Appellant was interrogated by NCIS concerning his involvement in the alleged crimes, and terminated the interview by invoking his right to counsel.  Appellant was thereafter held incommunicado and placed in solitary confinement where he was denied the ability to communicate with a lawyer or any other source of assistance.  Appellant was held under these conditions for 7 days, whereupon NCIS re-approached Appellant and communicated with him regarding their ongoing investigation.  In response, Appellant waived his previously invoked right to counsel and subsequently provided NCIS a sworn statement concerning the alleged crimes. Did the military judge err when he denied the defense motion to suppress the Appellant’s statement?  See Edwards v. Arizona, 451 U.S. 477 (1981), and United States v. Brabant, 29 M.J. 259 (C.M.A. 1989).

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United States v. Hutchins is out.  I’m sure Zack will have some pithy analysis soon.