The NMCCA finds no ineffective assistance in a defense counsel’s advice about sex offender registration
Fourteen years ago, in United States v. Miller, CAAF announced a prospective rule that “defense counsel should inform an accused prior to trial as to any charged offense listed on the DoD Instr. 1325.7 Enclosure 27: Listing Of Offenses Requiring Sex Offender Processing.” 63 M.J. 452, 459 (C.A.A.F. 2006). Seven years later, in United States v. Riley, 72 M.J. 115 (C.A.A.F. 2013) (CAAFlog case page), CAAF held that a military judge’s failure to ensure that an accused understands the sex offender registration consequences of a guilty plea will require reversal of the plea. Since then, military judges routinely ask whether the accused is aware of the possibility of sex offender registration during a guilty plea when registration is a possibility.
Such registration can be hard to avoid, as states have their own requirements in addition to the federal Sex Offender Registration and Notification Act (SORNA), 34 U.S.C. § 20901 et seq., which requires a comprehensive sex offender registration system at the state level “to avoid the reduction of Federal funding.” 34 U.S.C. § 20927(d). See also United States v. Richardson, 754 F.3d 1143, 1146 (9th Cir. 2014) (affirming SORNA as a valid exercise of Congress’ spending power). Moreover, the requirements can change, and the changes can apply retroactively. The Solicitor General has even argued that sex offender registration could be required for former servicemembers without a conviction.
A recent unpublished, per curiam decision by a three-judge panel of the Navy-Marine Corps CCA in United States v. Fink, No. 201800250 (N-M. Ct. Crim. App. Feb. 6, 2020) (link to slip op.), reveals how registration can be hard to avoid while finding that a defense counsel (who is not identified in any way) was not ineffective for providing sex offender registration advice that the appellant claims was wrong.
The Army CCA affirms a conviction despite the military judge’s “personal and emotionally intimate relationship” with the wife of a junior judge advocate
Two weeks ago, in this post, I discussed the Army CCA’s published, unanimous, en banc opinion in United States v. Springer, __ M.J. __, No. 20170662. Reviewing misconduct by the military judge (identified in the opinion as Lieutenant Colonel Richard Henry), the CCA held that such “misconduct with the spouse of a party to the case during trial erodes public confidence in the judiciary and the military justice system.” Slip op. at 7. I also noted that the case was one of a number raising the same issue of judicial disqualification.
Last week the CCA addressed a second such case, but reached a very different conclusion. With a published opinion in United States v. Anderson, __ M.J. __, No. 20170158 (A. Ct. Crim. App. Feb. 5, 2020) (link to slip op.), a three-judge panel of the CCA concludes that the military judge was not disqualified because the judge-advocate husband of the woman with whom the judge committed the misconduct was not otherwise involved in the case, and it also concludes that even if the military judge was disqualified it does not “risk undermining the public’s confidence in the judicial process.” Slip op. at 2.
Judge Schasberger – who wrote the opinion in Springer – writes for the panel.
An Army military judge’s “personal and emotionally intimate relationship” with the wife of a junior Army judge advocate “erodes public confidence in the judiciary and the military justice system” and causes the reversal of a general court-martial
Last week the Army CCA issued this published, unanimous, en banc opinion in United States v. Springer, __ M.J. __, No. 20170662. Writing for the court, Judge Schasberger give us the bottom line up front:
At the time of appellant’s court-martial, the presiding military judge engaged in an inappropriate relationship with the wife of one of the prosecuting attorneys assigned to appellant’s case. This inappropriate relationship created the appearance that the military judge lacked impartiality in appellant’s court-martial. Under the circumstances of this case, we are compelled to set aside the findings of guilt and sentence and authorize a rehearing.
Slip op. at 1. The military judge is named in the CCA opinion: Lieutenant Colonel Richard Henry.
On Friday the en banc Navy-Marine Corps CCA issued this opinion on reconsideration in United States v. Begani, __ M.J. __, No. 201800082, splitting 4-3 to affirm the validity of Articles 2(a)(4) and 2(a)(6), which apply court-martial jurisdiction to retired members of the regular components and to members of the Fleet Reserve (Navy) and Fleet Marine Corps Reserve.
The decision is a dramatic (but not unexpected) reversal of the decision of a three-judge panel of the court issued back in July and discussed here. If you’re not familiar with this case then you should probably read that post before continuing.
The panel had held that Articles 2(a)(4) and 2(a)(6) violate the Due Process Clause’s guaranty of equal protection of the laws because they do not also apply court-martial jurisdiction to retired reservists. I wrote in this second post that the panel’s decision was fundamentally flawed because the panel overlooked the fact that reserve retirees need not have any current connection to the service to receive their reserve retired pay. Citing numerous statutes, regulations, and court decisions, I explained that reserve retired service and reserve retired pay are mutually exclusive statuses, while regular retired pay is a direct consequence of regular retired service. That is a significant distinction between reserve and regular retirees that eliminates any equal protection argument (and if you’re not familiar with reserve retirement then you should also read that second post before continuing).
The Coast Guard CCA requires an accused seeking release from pretrial confinement prior to referral to exhaust the Article 138 complaint remedy before petitioning for habeas corpus
Back in August we noted the allegation of murder against Coast Guard Seaman Tucker, and a news report stated that Tucker was placed into pretrial confinement pending a court-martial for murder, involuntary manslaughter, aggravated assault, maiming, obstructing justice, making a false statement, and failure to obey an order or regulation.
Tucker challenged that confinement, petitioning the Coast Guard CCA for a writ of habeas corpus. The CCA denied the writ in an order available here. In it, the CCA observed that:
There is probable cause to believe Petitioner committed an offense. The real issue here is whether it is foreseeable that Petitioner will not appear at future proceedings or will engage in serious criminal misconduct; and whether less severe forms of restraint are inadequate.
We note that the memoranda of the Commanding Officer and IRO contain a number of conclusory statements and leaps of logic that do little to explain why, given the individual circumstances of this case, it is foreseeable that Petitioner will not appear at future proceedings or will commit further serious misconduct and that lesser forms of restraint would be inadequate.
In re Tucker, No. 003-19, slip op. at 2 (C.G. Ct. Crim. App. Oct 18, 2019). Nevertheless, the CCA refused to further consider the merits of the petition because the case has not been referred and:
it is “well established that one who believes he is wronged by a decision directing his confinement prior to trial, must pursue the remedy provided by Article 138, [UCMJ], prior to seeking the intervention of this Court pursuant to [the All Writs Act].”
Slip op. at 3 (quoting Catlow v. Cooksey, 44 C.M.R. 160, 162 (C.M.A. 1971)). Article 138 provides service members with a formal complaint resolution process. Military justice matters are generally not the proper subject for such a complaint, but the CCA held that the fact that the case has not yet been referred “does not preclude Petitioner from seeking redress” under Article 138. Slip op. at 3 n.1.
The CCA’s decision in Tucker is interesting because it seems to be the first time that any court relied on Catlow (and insisted on exhaustion of the Article 138 remedy) since the decision in Courtney v. Williams, 1 M.J. 267 (C.M.A. 1976), that required a neutral and detached magistrate review the decision to place an accused into pretrial confinement. That requirement is implemented in R.C.M. 305, which establishes a comprehensive review process. There is, I think, a good argument that the R.C.M. 305 process (including reconsideration by the neutral officer under R.C.M. 305(i)(2)(E), and post-referral review by a military judge under R.C.M. 305(j)) removes the question from Article 138 entirely.
Nevertheless, the CCA’s decision likely has a short lifespan, because Congress gave military judges the ability to consider matters pre-referral when it created Article 30a in the Military Justice Act of 2016, and it expanded the list of matters that may be considered to include pretrial confinement in § 531 of the National Defense Authorization Act for Fiscal Year 2020. Accordingly, once the President implements the expanded Article 30a power, an accused’s pre-referral challenge to pretrial confinement will definitely be a judicial matter and the proper subject of a habeas petition.
A “Mount Everest of uphill battles” prevents a finding of ineffective assistance of counsel for failing to move to compel funding for an expert
With a recent opinion in United States v. Roberts, No. 20150023 (A. Ct. Crim. App. Dec. 11, 2019) (link to slip op.), a three-judge panel of the Army CCA rejects a claim of ineffective assistance of counsel with the conclusion that “defense counsel faced the Mount Everest of uphill battles to negate the government’s [evidence].” Slip op. at 7-8.
Two years ago, in United States v. Harpole, 77 M.J. 231 (C.A.A.F. Feb. 14, 2018) (CAAFlog case page), CAAF held that the accused’s statements to a military victim advocate were not protected by the Mil. R. Evid. 514 victim advocate-victim privilege because a third party was present (to provide moral support to the accused) at the time the statements were made. But the circumstances of the case suggested that the victim advocate suspected the accused of an offense, and so CAAF remanded for a post-trial fact-finding hearing to determine if the accused received ineffective assistance of counsel when his defense counsel failed to move to suppress his statements due to a violation of Article 31.
The fact-finding hearing is complete and last month the Coast Guard CCA issued an opinion in the case finding no ineffective assistance of counsel because “a motion to suppress under Article 31(b) would not have succeeded.” United States v. Harpole, __ M.J. __, No. 1420 (C.G. Ct. Crim. App. Dec. 18, 2019) (link to slip op.). But the primary reason for that finding is surprising; the CCA holds that a victim advocate’s questioning does not trigger Article 31.
Writing for a three-judge panel, Judge Brubaker explains:
A victim advocate’s role is not to participate in a law enforcement or disciplinary inquiry. Rather, a victim advocate—much like a social worker or medical professional—provides support and services to individual servicemembers who report that they are crime victims. Extending Article 31(b) warning requirements to these services would result in precisely the type of “comprehensive and unintended reach” that our superior Court has consistently abjured. We thus hold that questioning by a victim advocate done solely within that role falls outside the intended reach of Article 31(b), UCMJ.
Slip op. at 7-8.
Nearly eight years ago, in United States v. Hayes, 71 M.J. 112 (C.A.A.F. May 1, 2012) (CAAFlog case page), a unanimous CAAF reversed an Airman’s conviction for dereliction of duty in violation of Article 92 because the Airman:
willfully failed to refrain from drinking alcohol while under the age of 21, as it was his duty to do.
71 M.J. at 113. The alleged source of that duty? “The Nevada state law concerning consumption of alcohol by persons under the age of twenty-one.” Id. CAAF reversed the conviction because – while the prosecution argued to the military judge that obeying state laws was a custom of the service – no evidence was presented to the members during trial to show that Hayes “was bound by a military duty, stemming from a custom of the service and subject to sanction under Article 92(3), UCMJ, to obey Nevada’s alcohol law.” 71 M.J. at 114.
The prosecution in Hayes employed a dereliction theory because (it seemed) the Air Force didn’t have a general order prohibiting the underage consumption of alcohol. The Army, however, does have such an order: Army Regulation 600-85, paragraph 3-2c. That order states:
Underage drinking is prohibited. Army policy governing the minimum age for dispensing, purchasing consuming,and possessing alcoholic beverages is found in AR 215–1, chapter 10. Any underage Soldier using alcoholic beverageswill be referred to the ASAP for screening within 5 working days except when permitted by AR 215–1, paragraph10–1f.
But with a recent opinion in United States v. Helton, No. 20190094 (A. Ct. Crim. App. Dec. 18, 2019) (link to slip op.), a three-judge panel of the Army CCA holds that the order is not punitive.
Judge Rodriguez writes:
“[I]f a regulation does not contain language establishing that it is a punitive regulation, a violation of the regulation is not a criminal offense under Article 92(1) [UCMJ].” United States v. Shavrnoch, 49 M.J. 334, 336 (C.A.A.F. 1998). Paragraph 3-2c of AR 600-85 does not contain language stating it is punitive. Accordingly, appellant pleaded guilty to a charge “[i]nvolving a legal standard that does not constitute an offense under Article 92, UCMJ, undermining appellant’s conviction ‘as a matter of law.”‘ Id. at 339 (quoting United States v. Faircloth, 45 M.J. 172, 174 (C.A.A.F. 1996)) (citing Prater, 32 M.J. at 436).
Slip op. at 3 (modification in original). A footnote adds:
Other provisions in AR 600-85 specifically state that violations of that provision are punishable under the UCMJ. See, e.g., paras. 4-2q, 4-1 lh, 10-2a, and 10-4a.
Slip op. at 3 n.2.
The Navy-Marine Corps CCA reverses a Naval Academy sexual assault conviction for factual insufficiency
A court of criminal appeals “may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as the Court finds correct in law and fact and determines, on the basis of the entire record, should be approved.” Article 66(d)(1) (2019) (emphasis added).
That requirement for a review of the factual sufficiency of a court-martial conviction is not only a unique power of the CCAs, but it is also a power that Congress recently reenacted, in the Military Justice Act of 2016 (moving the requirement from its former location, in Article 66(c)).
Reversals for factual insufficiency are, however, very rare. But last week, in United States v. Gilpin, No. 201900033 (N-M. Ct. Crim. App. Dec. 30, 2019) (link to slip op.), a three-judge panel of the Navy-Marine Corps CCA reversed a conviction of sexual assault of a person who was asleep and otherwise unaware, concluding that the evidence – consisting primarily of the alleged victim’s lack of memory after overconsuming alcohol – was factually insufficient to sustain the conviction.
Last month – in advance of the NMCCA withdrawing its opinion in United States v. Begani, No. 201800082 (N.M. Ct. Crim. App. Jul 31, 2019) (decision analyzed here and here) – the Air Force CCA issued a published decision in United States v. Ballard, 79 M.J. 675, No. 39440 (A.F. Ct. Crim. App. Sep. 30, 2019) (link to slip op.), in which the CCA rejected a constitutional challenge to court-martial jurisdiction over retired members. Writing for a three-judge panel of the CCA, Judge Lewis explained:
We conclude Appellant was undoubtedly a retired member of the regular Air Force entitled to retired pay at the time he was recalled to active duty for purposes of facing a court-martial. He committed all of the offenses to which he pleaded guilty while on active duty. We note our superior court has repeatedly upheld the exercise of court-martial jurisdiction in the face of challenges similar to one Appellant makes in this case. See, e.g., United States v. Sloan, 35 M.J. 4, 7 (C.M.A. 1992), overruled on other grounds by United States v. Dinger, 77 M.J. 447, 453 (C.A.A.F. 2018); Pearson v. Bloss, 28 M.J. 376, 378–80 (C.M.A. 1989); United States v. Hooper, 26 C.M.R. 417, 421–25 (C.M.A. 1958). We find the Congress acted well within the authority entrusted to them by the Constitution’s Make Rules Clause when they permitted court-martial jurisdiction of retired members of a regular component of the armed forces who are entitled to pay in Article 2(a)(4).
Slip op. at 7-8.
On July 31, a three-judge panel of the NMCCA issued an astonishing opinion in United States v. Begani, No. 201800082 (N.M. Ct. Crim. App. Jul 31, 2019) (link to slip op.), concluding that Articles 2(a)(4) and 2(a)(6) of the UCMJ – which apply court-martial jurisdiction to retired members of the regular components – violates the Due Process Clause’s guaranty of equal protection of the laws because it does not also apply court-martial jurisdiction to retired reservists.
I analyzed the decision in a pair of posts here and here, the latter of which called the opinion fundamentally flawed because reserve (non-regular) retirement is a pension while regular retirement is very much not; a significant distinction between reserve and regular retirees that justifies their different treatment under the UCMJ.
In this order issued last week, the NMCCA withdrew the opinion and announced en banc reconsideration:
Upon consideration of Appellee’s Motion for Reconsideration and Suggestion for En Banc Consideration, filed on 4 September 2019, it is, by the Court, this 1st day of October 2019,
1. That the Motion is GRANTED. The Court En Banc will consider the case.
2. That the Court’s 31 July 2019 decision is hereby WITHDRAWN.
3. That no briefs or arguments will be accepted unless required by further order of the Court.
Article 6b – which codifies rights for victims and was first enacted as part of the 2013 changes to the UCMJ, and then modified the following year – was the #6 Military Justice Story of 2016 and the #9 Military Justice Story of 2018. The provision remains a developing area of military law, with CAAF’s decision this term in United States v. Hamilton, 78 M.J. 335 (C.A.A.F. Feb. 28, 2019) (CAAFlog case page), that avoided deciding whether a statement by a crime victim admissible under R.C.M. 1001A (the President’s implementation of the Article 6b right to be reasonably heard) (moved to R.C.M. 1001(c) in the 2019 MCM) is evidence that is subject to any of the Military Rules of Evidence.
A three-judge panel of the Air Force CCA recently issued a published decision addressing the Article 6b(a)(4)(B) right to be reasonably heard at a sentencing hearing, in United States v. Shoup, 79 M.J. 668, No. 39487 (A.F. Ct. Crim. App. Aug 23, 2019) (link to slip op.). Senior Airman Shoup pleaded guilty to possession and distribution of child pornography and attempted sexual abuse of a child. During the sentencing phase of the court-martial, the prosecution offered three exhibits as victim impact statements under Article 6b and R.C.M. 1001A. The military judge admitted the exhibits over defense objection, and the CCA finds that to be error. Considering the nature of the statements and the seriousness of the underlying misconduct, however, the CCA finds the error to be harmless.
On Tuesday, in this post, I analyzed the NMCCA’s astonishing opinion in United States v. Begani, 79 M.J. 620, No. 201800082 (N-M. Ct. Crim. App. Jul 31, 2019), in which a three-judge panel of the court held that Articles 2(a)(4) and 2(a)(6) of the UCMJ – which apply court-martial jurisdiction to retired members of the regular components – violates the Due Process Clause’s guaranty of equal protection of the laws because the UCMJ does not also apply court-martial jurisdiction to retired reservists.
The most important holding in Begani is about three classes of retirees in the Navy and Marine Corps: (1) regular enlisted members in the Fleet Reserve receiving retainer pay (like Begani), (2) regular members on the retired list receiving retired pay, and (3) people receiving reserve (also known as non-regular) retired pay (the CCA did not address disability retirees).
The CCA held that people in those three categories “are similarly situated for purposes of equal protection analysis.” Slip op. at 8. That holding made possible the subsequent equal protection analysis (that found Article 2 unconstitutional). Without that holding, the rest of the opinion collapses.
The holding is based on similarities between the three categories of retirees:
The members of all three groups are in an inactive status and no longer perform any uniformed military duties. They are all subject to recall to active duty. They are ineligible for further promotion. They are entitled to retired pay at some point in their retired years. . . . For all of them, once they are entitled to retired pay, the pay continues for the duration of their lives and increases according to a cost of living formula. Their retired pay is not contingent on their continued military usefulness. Their actual ability to contribute to the accomplishment of a military mission is completely irrelevant.
Slip op. at 6.
The CCA analyzed “each group’s current degree of connectedness to the armed forces—not to past connections.” Slip op. at 6 (emphases in original). In analyzing how each group is currently connected to the armed forces, the CCA considered “the official Department of Defense (DoD) policy on the utilization of retirees.” Slip op. at 6. That policy includes an instruction that “makes no distinction between retired members of the regular and reserve components,” and that “does not mention active or reserve component status as a criterion for mobilization.” Slip op. at 6-7 (quoting DODI 1352.01 in footnotes). The CCA also considered the fact that “retired members of both the active and reserve components are similarly—though not identically—subject to involuntary recall to active duty.” Slip op. at 7. Because all three categories of retirees are still members of the armed forces, and because the DoD treats all three categories roughly equally, the CCA held that they are similarly situated.
That holding is fundamentally flawed because (unlike regular retirees) reserve retirees need not have any current connection to the service to receive their reserve retired pay. Reserve retired service and reserve retired pay are mutually exclusive. Regular retired pay, however, requires regular retired service. Put differently, while regular retirees must actually be in the military to receive regular retired pay, reserve retirees need not be in the military to receive their reserve retired pay (nor does continued service in the retired reserve create an entitlement to reserve retired pay). That’s an enormous difference in situation.
The bottom line is found in the wording of the statute that creates reserve retired pay, 10 U.S.C. § 12731 (“person”; “entitled”; and no mention of the retired reserve), and in paragraph 060401, Volume 7B, DoD 7000.14-R (the DoD FMR), which states:
Retired pay benefits authorized for non-regular members of the uniformed services in 10 U.S.C., Chapter 1223 are viewed as a pension and entitlement to retired pay under 10 U.S.C. § 12731 is not dependent on the continuation of military status.
(emphasis added). In other words, reserve (non-regular) retirement is a pension while regular retirement is very much not; a significant distinction between reserve and regular retirees.
Analysis follows after the jump.
The NMCCA torpedoes Article 2; holds that court-martial jurisdiction over retirees is unconstitutional
Now, with an astonishing opinion in United States v. Begani, 79 M.J. 620, No. 201800082 (N.M. Ct. Crim. App. Jul 31, 2019) (link to slip op.), a three-judge panel of the Navy-Marine Corps Court of Criminal Appeals holds that Articles 2(a)(4) and 2(a)(6) of the UCMJ – which apply court-martial jurisdiction to retired members of the regular components – violates the Due Process Clause’s guaranty of equal protection of the laws because they do not also apply court-martial jurisdiction to retired reservists.
Chief Judge Crisfield writes for the court, joined by Senior Judges Fulton and Hitesman.
In June 2017, Chief Petty Officer Begani, U.S. Navy, completed 24 years of active duty service and transferred to the Fleet Reserve. The Fleet Reserve (and the associated Fleet Marine Corps Reserve) is not regular retirement, but rather is an intermediate status for enlisted members in the Department of the Navy who have completed at least 20 but less than 30 years of service (because enlisted members are not actually entitled to retirement until they complete 30 years of service; compare, for example, 10 U.S.C. § 7314 (may be retired upon request after 20 years) with 10 U.S.C. § 7317 (shall be retired upon request after 30 years)). While in the Fleet Reserve, Begani received retainer pay and was subject to court-martial under Article 2(a)(6).
36 days after his transfer to the Fleet Reserve, Begani was apprehended by Naval Criminal Investigative Service (NCIS) agents when he went to an on-base residence on Marine Corps Air Station Iwakuni, Japan (Begani’s duty station at the time of his transfer). Begani was there for a sexual encounter with someone he believed was a 15-year-old female, but was actually an undercover NCIS agent. As a result, Begani eventually pleaded guilty at a general court-martial to one specification of attempted sexual assault of a child and two specifications of attempted sexual abuse of a child, in violation of Articles 80 and 120b. The approved sentence was confinement for 18 months and a bad-conduct discharge.
Begani did not challenge jurisdiction at trial, but he did challenge it on appeal, arguing “that the UCMJ’s jurisdictional scheme, whereby he, as a retired regular component member, is subject to the UCMJ, while retired Navy Reserve members are not, violates the Fifth Amendment Due Process Clause’s guarantee of equal protection of the laws.” Slip op. at 3. Begani’s argument turned on the claim that members of the Fleet Reserve (and Fleet Marine Corps Reserve) receiving retainer pay (like him), regular retirees, and reserve retirees, are all similarly situated.
The CCA agrees that those three disparate categories are indeed similarly situated:
There is little case law to guide our determination of whether these two groups of retirees are “similarly situated” for equal protection purposes. We nonetheless feel confident determining that members of the Fleet Reserve, regular component retirees, and reserve component retirees are similarly situated because there is no meaningful distinction, legally or factually, between the groups that is relevant to good order and discipline in the armed forces.
Slip op. 5. It then finds that Article 2 – which Congress recently amended –
is not narrowly tailored to the achievement of a compelling government interest. Instead, it appears that Article 2’s retiree jurisdiction structure is an anachronistic vestige of Congress’ effort to create a uniform code of military justice for military services that traditionally had different administrative needs. Article 2’s retiree jurisdiction rules reflect an administrative compromise that has outlived its necessity and is not tailored to current governmental interests.
It is clear to us that Congress could lawfully subject all retirees of the armed forces to UCMJ jurisdiction. Conversely, it could subject no retirees of the armed forces to jurisdiction. It could also narrowly tailor retiree jurisdiction in such a way to satisfy the compelling interest in maintaining good order and discipline in the armed forces. Article 2 as structured, however, is not narrowly tailored to that interest. Accordingly, we find that the UCMJ’s jurisdictional structure for retirees violates the right of equal protection imputed to the Fifth Amendment.
Slip op. at 16 (emphases omitted).
The decision is a radical departure from everyone’s jurisprudence involving retiree jurisdiction, least of all the NMCCA’s own jurisprudence. For instance, just two years ago, in United States v. Dinger, 76 M.J. 552, 557 (N-M Ct. Crim. App. 2017), aff’d, 77 M.J. 447 (C.A.A.F. 2018), cert. denied, 139 S. Ct. 492 (2018) (CAAFlog case page), the NMCCA rejected a similar challenge because it was “firmly convinced that those in a retired status remain ‘members’ of the land and Naval forces who may face court-martial.” Shortly after it decided Dinger, the NMCCA summarily rejected a similar challenge in United States v. Larrabee, No. 201700075, 2017 CCA LEXIS 723 (N-M Ct. Crim. App. Nov. 28, 2017) (unpub.) (link to slip op.), aff’d, 78 M.J. 107 (C.A.A.F. 2018) (sum. disp.), cert. denied, 139 S. Ct. 1164 (2019) (CAAFlog news page).
The decision also suffers from some serious flaws.