On Friday the Army CCA issued updated rules of practice and procedure (replacing the rules issued on 1 Nov 17).
They’re available here.
On Friday the Army CCA issued updated rules of practice and procedure (replacing the rules issued on 1 Nov 17).
They’re available here.
CAAF’s decision in United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. 2015) (CAAFlog case page), was the #7 Military Justice Story of 2015 because a unanimous CAAF found the appellant’s conviction of aggravated assault (based on engaging in sexual activity without disclosing to his partners that he was HIV-positive) to be legally insufficient due to a no more than a 1-in-500 chance that the appellant would actually infect his partners with HIV. In so deciding, CAAF expressly overruled two significant cases addressing the issue. However, with only a citation to Canadian law, CAAF affirmed a conviction for the lesser included offense of assault consummated by a battery, explaining that:
Here, Appellant’s conduct included an offensive touching to which his sexual partners did not provide meaningful informed consent. See R. v. Cuerrier,  2 S.C.R. 371, 372 (Can.) (“Without disclosure of HIV status there cannot be a true consent.”). He is therefore guilty of assault consummated by battery
74 M.J. at 68.
Last month the Navy-Marine Corps CCA issued a published opinion in United States v. Forbes, __ M.J. __, No. 201600357 (N.M. Ct. Crim. App. Apr. 24, 2018) (link to slip op.), that applies Gutierrez to affirm “convicting a service member of sexual assault for failing to inform a sexual partner of his HIV status before engaging in an otherwise-consensual sexual act.” Slip op. at 4 (emphasis added).
Last year, in United States v. Reese, 76 M.J. 297 (C.A.A.F. Jun. 14, 2017) (CAAFlog case page), a unanimous court found no requirement to show prejudice in the case of an objected-to major change (functionally rendering it a structural error), and reversed a conviction of sexual abuse of a child. CAAF also explained that a novel Article 134 specification must allege an act or omission that is not already an enumerated Article 134 offense, and reversed a conviction of a novel violation of Article 134 that was intended to charge obstruction of justice but omitted elements of that enumerated offense.
CAAF’s decision left Reese convicted of making false official statements and marijuana offenses, and CAAF remanded the case to the Coast Guard court to reconsider the adjudged sentence. Reese had pleaded guilty to all of those offenses except for one specification of making a false official statement (he had contested the charges that CAAF reversed), and he was originally sentenced by a general court-martial composed of a military judge alone to confinement for five years, reduction to E-1, and a dishonorable discharge. On remand, the Coast Guard CCA reassessed the sentence and granted a huge reduction, affirming only confinement for three months, reduction to E-1, and a bad-conduct discharge (discussed here).
At that point, Reese could have petitioned CAAF for a second review, but he didn’t. Apparently, however, he wanted to, and his appellate defense counsel failed to act. On May 4th, the Coast Guard CCA issued this order denying Reese a writ of error coram nobis filed because:
Reese III [the sentence reassessment opinion] became final when, on 18 September 2017, Petitioner’s opportunity to file a petition for review by the CAAF expired without a petition being filed. Articles 67(b) and 76, UCMJ. On 23 February 2018, Petitioner, through new appellate counsel, filed a motion for this court to reconsider our decision in Reese III, which we denied. Petitioner then filed a motion for en banc reconsideration, which we again denied.
Petitioner now asks that we issue a writ of error coram nobis to set aside his reassessed sentence and remand for a sentence rehearing or, in the alternative, set aside the bad-conduct discharge. He bases this on alleged ineffective assistance of appellate counsel when, contrary to his stated desires, they failed to file a timely petition for review with the CAAF. He also requests oral argument.
Reese v. United States, No. 001-18 (C.G. Ct. Crim. App. May 4, 2018) (link to order).
Earlier this year a three-judge panel of the Army CCA issued an unpublished decision denying a petition for extraordinary relief in Murray v. United States, No. 20180025 (A. Ct. Crim. App. Jan. 31, 2018) (link to slip op.).
The petition was based on allegations of prosecutorial misconduct and the CCA rejects it because the claimed misconduct was “known by appellant prior to the original court-martial judgment,” and because it finds “no valid reason for petitioner’s failure to raise this issue during his court-martial and seek relief earlier.” Slip op. at 1.
But the CCA doesn’t leave it there. Writing for the panel, Senior Judge Campanella details the substance of the allegations, explaining that:
Petitioner alleges that during his court-martial, the prosecutor, Lieutenant Colonel (LTC) Matthew McDonald, took CPT KB aside, and asked him a series of questions related to the rental arrangement between petitioner and CPT KB and asked CPT KB whether he reported the rental income on his income taxes. Petitioner asserts that during this conversation LTC McDonald threatened CPT KB with criminal prosecution, and reporting him to his chain of command and the Internal Revenue Service (IRS), if he testified for petitioner.
Slip op. at 2. If you think the name of that prosecutor is familiar, you’re right. CAAF also named him in United States v. Sewell, 76 M.J. 14 (C.A.A.F. 2017) (CAAFlog case page).
In a published opinion in United States v. Mitchell, __ M.J. __, No. 201600327 (N.M. Ct. Crim. App. Mar. 27, 2018) (link to slip op.), Judge Fulton writes for a three-judge panel and explains that for the Presidentially-prescribed offense of assault of a child under the age of 16, the age of the alleged victim is merely a sentence escalator and not a statutory element.
Aviation Electronics Technician Second Class (E-5) Mitchell was accused of the attempted premeditated murder of his infant son by poisoning with opiate medication. A general court-martial composed of a military judge alone acquitted Mitchell of attempted premeditated murder but convicted him of the lesser included offense of aggravated assault with a means likely to produce death or grievous bodily harm in violation of Article 128 (Mitchell was also charged with and convicted of child endangerment in violation of article 134). The military judge’s findings convicting Mitchell of assault – made by exceptions and substitutions – included that the child was under the age of 16.
Mitchell sought to reverse his conviction on appeal, arguing that “assault on a child under 16 with means likely to cause death or grievous bodily harm is not a lesser included offense of attempted murder,” because the assault offense includes the factor of a child under 16 that is not included in the offense of attempted murder. Slip op. at 2.
Affirming Mitchell’s conviction, Judge Fulton explains that:
Article 128, UCMJ makes no reference to the age of the victim. Therefore the matter of the victim’s age is not a statutory element. Rather, it is a sentence escalator that the President has determined should increase the maximum authorized punishment in aggravated assault cases.
Slip op. at 9.
In Article 56(a), Congress gave the President the power to set the maximum punishments for offenses under the UCMJ. The President exercises that power in the Manual for Courts-Martial by describing offenses and listing their maximum authorized punishment. The statutory text of Article 128 is silent as to the age of the victim, but the President considers it a factor justifying a higher maximum authorized sentence. See Manual for Courts-Martial, Part IV, ¶ 54.e.(7) and (8) (2016 ed.). The President can do this, but by doing this he does not add an element to Article 128.
But even if the President’s action did add an element, Judge Fulton explains that it wouldn’t have mattered in this case:
Failing to plead a functional element implicates an accused’s substantial right to notice under the Fifth and Sixth Amendments. To determine whether lack of notice prejudiced an appellant, “we look to the record to determine whether notice of the missing element is somewhere extant in the trial record, or whether the element is ‘essentially uncontroverted.’”
We find that both considerations favor the government. First, the missing element is found not only elsewhere in the record, but on the charge sheet [in the separate, child endangerment charge -zds] . . . . Second, RM’s age was not—and could not have been—seriously contested by the appellant at trial. The evidence that RM was an infant at the time of the offenses was overwhelming and uncontroverted.
Slip op. at 12.
Collateral review of (or a collateral attack on) a court-martial conviction involves a petition for extraordinary relief filed in the military or civilian courts. Collateral review is collateral because it exists in addition to the direct appellate review of a court-martial (under Articles 64, 66, 67, 67a, or 69; see Hathorne). I provided a more detailed outline of collateral review last fall, in this post.
Collateral review is one way to revisit an old case, possibly reversing a conviction that is otherwise deemed final. But a three-judge panel of the Army CCA issued a published opinion earlier this year drawing a line on when it will conduct such a review.
In Roberts v. United States, __ M.J. __, No. 20180005 (A. Ct. Crim. App. Jan. 30, 2018) (link to slip op.), Judge Wolfe writes for a unanimous panel and concludes that because the petition for extraordinary relief (filed pro se) is based on evidence discovered after trial, the two-year time limit in Article 73 for a petition for a new trial deprives the CCA of jurisdiction to conduct collateral review now:
Article 73, UCMJ, provides the statutory authority for this Article I court to provide relief based on evidence discovered after trial. However, Article 73, UCMJ, establishes a fixed two-year period to file petitions for a new trial. We have found no authority for this Article I court to allow for equitable tolling of the two-year limitation. Additionally, as the All Writs Act does not expand our jurisdiction, we cannot apply the All Writs Act in a manner that avoids the statutory limitation set out by Congress. See, e.g., United States v. LaBella, 75 M.J. 52, 54-55 (C.A.A.F. 2015) (holding the Court of Criminal Appeals erred in allowing for equitable tolling of jurisdictional filing deadline).
Slip op. at 3. A footnote observes that § 5336 of the Military Justice Act of 2016 increases the time limit to three years (effective on January 1, 2019).
In United States v. Baratta, __ M.J. __, No. 201600320 (N.M. Ct. Crim. App. Mar. 15, 2018) (link to slip op.), a three-judge panel of the Navy-Marine Corps CCA concludes that Article 66 does not confer jurisdiction to modify offense-reporting codes included on the Department of Defense Report of Result of Trial (DD Form 2707-1).
Captain (O-6) Baratta pleaded guilty to two specifications of indecent acts committed prior to 28 June 2012, in violation of Article 120, and to four specifications of indecent viewing, visual recording, or broadcasting committed after 28 June 2012, in violation of Article 120c. A panel of officer members sentenced him to confinement for three years and a dismissal. A pretrial agreement limited the confinement to 24 months.
The offenses involved Baratta surreptitiously video-recording men in a locker room shower and in a guest bedroom and bathroom in his home. “When the police searched the appellant’s home computer, they found nearly four years’ worth of video recordings saved and categorized.” Slip op. at 2.
After Baratta’s trial, the Report of Result of Trial form was completed. That form includes a section (block 3.c) for the DIBRS Code for each offense. DIBRS is the Defense Incident-Based Reporting System, and is the DoD equivalent of the FBI’s National Incident-Based Reporting System (NIBRS). DoD Manual 7730.47-M, Volume 2 (link), provides tables of DIBRS codes for offenses under the UCMJ.
The issue in Baratta, however, isn’t really the DIBRS code applied by the DoD.
I’ve written a number of times that charging in the disjunctive (using or) rather than charging in the conjunctive (using and) is wrong. See, for example, this post. Charge in the conjunctive, prove in the disjunctive.
In United States v. Shermot, __ M.J. __, No. 1447 (C.G. Ct. Crim. App. Apr. 11, 2018) (link to slip op.), a three-judge panel of the Coast Guard CCA affirms a conviction of a specification of sexual assault that alleged that the appellant:
committed a sexual act upon AD when she was incapable of consenting due to impairment by an intoxicant, “and that condition was known, or reasonably should have been known,” by Appellant.
Slip op. at 3-4 (quoting charge sheet) (emphasis in original). Writing for the panel, Judge Brubaker explains that in this trial by a military judge alone:
For the first time on appeal, Appellant asserts this use of the disjunctive requires his conviction to be overturned for two reasons.
First, in his assignment of error, Appellant asserts, “Article 120(b)(3)(A) is unconstitutional as applied because it allowed the government to require [Appellant] to defend against two separate and distinct mens rea: actual knowledge (knows) and negligence (reasonably should have known), a violation of due process.” (Appellant’s Brief at 17.) His brief clarifies that the purported unconstitutionality stems from a lack of notice as to which theory of liability he was defending against and a lack of protection from double jeopardy. This is more appropriately addressed as a question of the sufficiency of the specification to provide constitutional notice and protection against double jeopardy than the constitutionality of the statute itself as applied.
. . .
Second, in his reply brief, Appellant, citing United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003), posits his verdict is ambiguous because we, in conducting our factual sufficiency review under Article 66(c), UCMJ, cannot ascertain under which mens rea the military judge convicted Appellant.
Slip op. at 4-5.
In United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page), CAAF held that charged offenses may not be used for propensity purposes under Mil. R. Evid. 413.
In Lewis v. United States, 76 M.J. 829, No. 2017-05 (A.F. Ct. Crim. App. Sep. 20, 2017) (link to slip op.) (discussed here), a three-judge panel of the Air Force CCA denied a petition for extraordinary relief in the nature of a writ of coram nobis that sought retroactive application of Hills to cases where the appeals are over and the conviction is final.
Now, rejecting a pair of petitions for extraordinary relief, a three-judge panel of the Navy-Marine Corps CCA follows suit and concludes that CAAF’s decision in Hills does not apply retroactively.
First, in Burleson v. United States, __ M.J. __, No. 200700143 (N.M. Ct. Crim. App. Feb. 26, 2018) (link to slip op.), the panel concludes that Hills is non-retroactive and that the petition seeks to reevaluate issues raised (but rejected) during the ordinary appeal. Next, in Pierre v. United, No. 201300257 (N.M. Ct. Crim. App. Mar. 8, 2018) (link to slip op.), the panel applies Burleson while noting that the petitioner was confined (and so should have filed a petition for a writ of habeas corpus).
Here is a link to a notice in today’s Federal Register about proposed changes to the Joint Rules of Appellate Procedure for Courts of Criminal Appeals (JRAP), in order to “implement the Military Justice Act of 2016 of the National Defense Authorization Act of 2017 and the 2018 Amendments to the Manual for Courts-Martial, United States.”
The proposed changes aren’t published in the Federal Register, but they are available on Regulations.gov at this link.
Public comments are due by May 17, 2018.
Early last year the Army CCA applied CAAF’s blockbuster decision in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page), to reverse convictions involving the sexual abuse of five children and a sentence that included confinement for life, in United States v. Adams, No. 20130693 (A. Ct. Crim. App. Jan. 6, 2017) (link to slip op.). The CCA authorized a rehearing.
A rehearing is a “continuation of the original proceedings.” Reid v. Covert, 351 U.S. 487, 491 (1956). Rehearings may occur in full, on only the sentence, or as a combination of a rehearing (in full or sentence-only) with a trial on new charges. See Article 63; R.C.M. 810(a).
When convictions are reversed and a rehearing is authorized – as occurred in Adams – and the convening authority wants to conduct a rehearing, the right thing to do is to refer the original charges to a new court-martial. This is so for practical reasons (the charges still exist and were not dismissed) and because the original charges tolled the statute of limitations (and new charges might be time barred). But the right thing didn’t happen in Adams. Instead, after the CCA reversed the convictions, military prosecutors preferred new charges (in 2017) that were substantially identical to the original charges (preferred in 2012).
Duplicating the original charges was sloppy (at best), but then a staff judge advocate made a complete mess of things:
On the advice of the acting staff judge advocate, the convening authority dismissed “without prejudice” the 2012 charges and referred the 2017 charges to a general court-martial.
At trial, petitioner moved to dismiss the 2017 charges for lack of jurisdiction. Appellant asserted that the convening authority had exceeded the mandate of this court’s remand. The military judge denied the motion and this writ-petition followed.
Adams v. Cook, Military Judge, No. 20170581 (A. Ct. Crim. App. Jan. 23, 2018) (link to slip op.), writ-appeal filed, __ M.J. __, No. 18-0171/AR (C.A.A.F. Mar. 19, 2018).
A three-judge panel of the Army CCA denied Adams’ petition for writs of mandamus and habeas corpus, concluding that Adams failed to meet the burden to justify a writ. Adams has since sought review by CAAF. Yet while the acting staff judge advocate’s bad advice to dismiss the original charges and refer only the new charges made a mess of the case, I think it’s highly unlikely that Adams will be successful in stopping a second trial.
With a published decision in United States v. Contreras-Ramos, __ M.J. __, No. 20160182 (A. Ct. Crim. App. Jan. 30, 2018) (link to slip op.), a three-judge panel of the Army CCA affirms that morphed images – created by combining elements from multiple sources – can constitute contraband child pornography.
The images at issue were created by the appellant when he “took existing pictures of his daughters, ages eight and thirteen, and made them appear sexual.” Slip op. at 4. He also manipulated images to make them appear to show him committing sexual acts with his daughters. Slip op. at 5.
For these acts he was charged with a novel specification under Article 134 that alleged:
In that Staff Sergeant Fredyshernan Contreras-Ramos, U.S. Army, did, at an unknown location, between on or about 2 July 2012 and on or about 10 June 2014, knowingly and wrongfully create visual depictions of his minor daughters, A.C. and M.C., and other children engaging in indecent conduct, such conduct being of a nature to bring discredit upon the armed forces.
Slip op. at 2. His defense counsel moved to dismiss, asserting that the specification failed to state an offense, but the military judge denied the motion. Contreras-Ramos then pleaded guilty to that offense, to a separate specification of possessing child pornography (other images), and to unauthorized absence. The approved sentence included confinement for four years, reduction to E-1, and a bad-conduct discharge.
Writing for the three-judge panel, Judge Salusollia explains that such morphed images are punishable as contraband child pornography. This specific conviction is reversed, however, because child pornography offenses are enumerated under Article 134 in the MCM (and have been since 2011) and the MCM prohibits using a novel specification to charge conduct covered by an enumerated offense. See United States v. Reese, 76 M.J. 297 (C.A.A.F. Jun. 14, 2017) (CAAFlog case page).
Three years ago, in United States v. Schloff, 74 M.J. 312 (C.A.A.F. 2015) (CAAFlog case page), a divided CAAF held that sexual contact – as defined by Article 120(g)(2) (2012) – includes both body-to-body contact and object-to-body contact.
The alleged object-to-body touching was stethoscope-to-breast contact during examinations performed by First Lieutenant (O-2) Schloff, a physicians assistant. The procedural posture of the case was unusual; Schloff was convicted of one such touching and sentenced to a dismissal, and then the military judge dismissed the specification as failing to state an offense. The Army CCA reversed and CAAF affirmed the CCA, remanding for further proceedings (ordinary Article 66 review).
On remand Schloff alleged that the findings were tainted by unlawful influence because during deliberations two of the members argued that the Army needed to appear strong on sexual assault issues.
In an unpublished opinion issued in February, a three judge panel of the Army CCA agreed, and it reversed the conviction and authorized a rehearing, concluding:
Although we have an independent duty to determine the question of UCI de novo, we concur with the DuBay military judge that actual and apparent UCI occurred and the government failed to establish “beyond a reasonable doubt that UCI . . . was not improperly brought to bear on any member during the findings phase of [appellant’s] court-martial.” As correctly noted by the DuBay military judge “[COL
JW] injected policy and career concerns into the deliberations [and h]e did so despite the military judge’s clear guidance that the case be decided solely on the evidence presented in court and the instructions on the law given by the military
judge.” The UCI was a “palpable cloud throughout the deliberations” left to permeate in each panel member’s decision-making process.
Allowing this UCI to hover would prejudicially impact the fairness of appellant’s court-marital.
United States v. Schloff, No. 20150724, slip op. at 4 (A Ct. Crim. App. Feb. 5, 2018) (link to slip op.).
In United States v. Zegarrundo, __ M.J. __, No. S32430 (A.F. Ct. Crim. App. Jan. 31, 2018) (link to slip op.) (CAAFlog link), a three-judge panel of the Air Force CCA finds that an error in the clemency submission from the appellant’s defense counsel requires remand for a new convening authority’s action.
The error was that defense counsel wrongly believed that the convening authority had no power to reduce the adjudged sentence to confinement, when in reality the convening authority had such power because the adjudged sentence to confinement was not more than six months.
A three-judge panel of the Navy-Marine Corps CCA issued a published opinion in United States v. Shields, __ M.J. __, No. 201600133 (N.M. Ct. Crim. App. Jan. 31, 2018) (link to slip op.), holding that a Secretary of the Navy Instruction (SECNAVINST) in effect at the time of the appellant’s misconduct (but since changed), that purported to automatically cancel any directive older than seven years, did not apply to regulations already older than seven years, including the Navy’s sexual harassment instruction of which the appellant was convicted of violating.
It’s the CCA’s second opinion in the case; the court previously reversed two of the appellant’s convictions with an unpublished opinion (available here), findings that a Hills error was not harmless. This new, published opinion restates the Hills analysis from the prior, unpublished opinion, and reaches the same result.