CAAFlog » Courts of Criminal Appeals

With a published decision in United States v. Buford, __ M.J. __, No. 39087 (A.F. Ct. Crim. App. Dec. 19, 2017) (link to slip op.), the Air Force CCA holds:

The members sentenced Appellant to a bad-conduct discharge and reduction to E-1. The convening authority approved the adjudged sentence and ordered that “[u]nless competent authority otherwise directs, [Appellant] will be required, under Article 76a, UCMJ, 10 U.S.C. § 876a, to take leave pending the completion of appellate review.” At the time Appellant began the required period of what is referred to as appellate leave, he had 73 days of accrued leave. When presented with an option to receive a lump sum payment for the accrued leave or to “use” the leave, Appellant elected the latter, or to “[r]eceive pay and allowances during the period of accrued leave, then continue on unpaid required excess leave.” As of the date Appellant filed his appellate brief, he had not been paid for the period of accrued leave.

Appellant asserts he has been improperly denied his pay and this court has jurisdiction under Article 66(c), UCMJ, 10 U.S.C. § 866(c), to provide a remedy. Appellant specifically requests two forms of tailored relief. First, Appellant asks that we prohibit the convening authority from taking final action until Appellant is paid for the period of accrued leave. Secondly, Appellant argues that we should disapprove the approved reduction in grade to E-1 so that his accrued leave is paid at the E-4 rate, which would compensate him for the consequential damages (financial hardships) he attributes to the improper withholding of pay. We hold that Article 66(c), UCMJ, does not grant this court jurisdiction over a pay dispute absent a nexus to the approved sentence. As Appellant’s dispute with military officials does not concern the approved sentence, it is beyond our statutory authority. We find no error that materially prejudiced a substantial right of Appellant and affirm the findings and sentence.

Slip op. at 2 (marks in original) (emphasis added).

The opinion distinguishes the circumstances of this case from those of United States v. Gay, 75 M.J. 264 (C.A.A.F. 2016) (CAAFlog case page), in which CAAF affirmed the CCA’s power to grant sentence appropriateness relief without first finding the existence of cruel and unusual punishment in violation of Article 55 or the Eighth Amendment:

In Gay, the legal deficiency resulted in improper solitary confinement and “conditions of confinement that were more severe than what [appellant] should have experienced.” [75 M.J.] at 269. We note that the authority validated in Gay was rooted and limited to a legal deficiency that directly impacted a component of the sentence. It is clear that Gay may be cited for the proposition that a CCA is not limited to violations of the Eighth Amendment to the United States Constitution, Article 55, UCMJ, 10 U.S.C. § 855, or other defined rights and protections as a basis for granting relief. However, CAAF in Gay did not recognize unlimited authority under Article 66(c), UCMJ, for a CCA to grant sentencing relief, including for errors collateral to the court-martial process. We are neither persuaded that we have such unlimited authority nor convinced that we should exercise any of our limited authority to grant relief for an administrative matter unrelated to any legal deficiency and unconnected to the legality or appropriateness of a court-martial sentence.

Slip op. at 6 (emphasis in original).

The underlying issue seems to be a recurring problem. The CCA made a similar finding of no-jurisdiction in United States v. Whiting, No. S32420 (A.F. Ct. Crim. App. Jan. 4, 2018) (link to slip op.).

In a scathing opinion in United States v. Christopher, No. 201600249 (N.M. Ct. Crim. A.. Dec. 28, 2017) (en banc) (link to slip op.), the NMCCA concludes that:

the appellant’s trial defense team was ineffective because they erroneously concluded that the statute of limitations was inapplicable to his case.

Slip op. at 3. Judge Jones writes for a unanimous court. The counsel are not identified.

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Article 6b states that a crime victim has a “right to be reasonably heard at . . . [a] sentencing hearing relating to the offense.” Article 6b(a)(4)(B). It does not, however, say precisely how the victim may be heard.

Article 42(b) states that “each witness before a court-martial shall be examined on oath.”

R.C.M. 1001A states that a victim may make a sworn or unsworn statement during the sentencing phase of the court-martial “independent of whether the victim testified during findings or is called to testify [in sentencing].” R.C.M. 1001A(a).

In United States v. Hamilton, __ M.J. __, No. 39085 (A.F. Ct. Crim. App. Dec. 20, 2017) (en banc) (link to slip op.), the Air Force CCA reconciles the Article 42(b) requirement for testimony under oath with the Article 6b(a)(4)(B) right to be heard in sentencing and concludes:

unsworn victim impact statements offered pursuant to R.C.M. 1001A are not evidence. See also United States v. Provost, 32 M.J. 98, 99 (C.M.A. 1991) (if an accused elects to make an unsworn statement, he is not offering evidence). Both R.C.M. 1001(c)(2)(C) and R.C.M. 1001A(e) allow facts in an unsworn statement to be contradicted or rebutted. This does not change the character of the right to speak.

Slip op. at 5 (emphasis added). Furthermore, because a victim’s unsworn statement is not evidence, the Military Rules of Evidence (including the balancing test in Mil. R. Evid. 403) “do not apply to victim unsworn statements.” Slip op. at 9.

The majority specifically “does not address the application of the Mil. R. Evid. to sworn victim impact statements.” Slip op. at 5 n.3.

The conclusion that an unsworn statement from a victim is not evidence is consistent with precedent explaining that an accused’s unsworn statement “is not evidence.” United States v. Marsh, 70 M.J. 101, 104 (C.A.A.F. 2011) (quoting United States v. Breese, 11 M.J. 17, 23 (C.M.A. 1981)) (last discussed here). But it is not unanimous. Three judges dissent, with Senior Judge Harding writing:

As R.C.M. 1001A victim statements, sworn or unsworn, are presented to the court-martial for use and consideration on the determination of sentence, in addition to empowering a victim to speak, I would treat them as sentencing “evidence” by any other name and follow the Military Rules of Evidence, absent an exception otherwise provided.

Slip op. at 15 (Harding, S.J. dissenting).

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In United States v. Windham, __ M.J. __, No. 20160340 (A. Ct. Crim. App. Nov. 17, 2017) (link to slip op.), a three-judge panel of the Army CCA rejected an equal protection challenge to a prosecution for larceny based on a sham marriage (also known as a contract marriage).

Specialist (E-4) Windham pleaded guilty to larceny (of a housing allowance) and conspiracy to commit larceny (of the allowance), telling the military judge that:

“his marriage to Ms. TG [w]as a ‘fake marriage,’ a “contract marriage,” and stated “we did not get married with the intent of being in a relationship.” The military judge accepted appellant’s plea to conspiracy to commit larceny of BAH and larceny of BAH.

Slip op. at 2. On appeal, Windham asserted that the Supreme Court’s decision in United States v. Windsor, 133 S. Ct. 2675 (2013) (the same-sex marriage case), requires the federal government to recognize his marriage.

The CCA rejected the challenge:

While Windsor nullified DOMA and its extensive applicability to several federal laws and regulations, the Supreme Court continued to recognize the “constitutionality of limited federal laws that regulate the meaning of marriage in order to further federal policy.” For example, even if a marriage was valid under state law, the federal government was not required to recognize, for immigration purposes, a marriage entered into for the sole purpose of procuring a noncitizen’s admission into the United States.

Slip op. at 3 (citations omitted). It concluded:

the issue at bar is not whether appellant’s Texas marriage certificate is or is not valid and should be recognized by the federal government, but rather whether appellant’s sole purpose in entering the marriage was to obtain governmental funds to which he was not otherwise entitled. . . .

A review of appellant’s discussion with the military judge makes it abundantly clear his “sole purpose” in marrying Ms. TG was to obtain a BAH entitlement at the with-dependent rate.

Slip op. at 4.

The important point here is that Windham pleaded guilty, and “admitted to the military judge he married Ms. TG ‘for the sole purpose of obtaining money from the United States.'” Slip op. at 2. That’s a crucial fact. See also United States v. Hall, 74 M.J. 525, 530 (A.F. Ct. Crim. App. 2014) (“What we hold today is simply this: It is not the absence of a perfect or ideal ‘love, honor, and cherish’ motivation of the parties that renders the consequences flowing from the appellant’s actions in the case before us criminal; rather, it is the affirmative presence of a singularly focused illicit one—an intent to fraudulently acquire a government payment stream—that does so.”)

The appellant in United States v. Langhorne, ___ M.J. __, No. 39047 (A.F. Ct. Crim. App. Dec. 5, 2017) (link to slip op.), was accused of attempting murder-for-hire. The evidence admitted against him included messages from his Facebook account. Military investigators:

accessed the account by using the user name and password that Appellant provided to a third person over a monitored telephone line from Appellant’s pretrial confinement facility.

Slip op. at 5-6.

No problem, finds the Air Force court.

The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const. amend. IV. Under the Fourth Amendment, a “search” occurs when “the government violates a subjective expectation of privacy that society recognizes as reasonable.” Kyllo v. United States, 533 U.S. 27, 33 (2001). Under the third-party doctrine, “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties . . . even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.” Smith v. Maryland, 442 U.S. 735, 743–44 (1979) (citing United States v. Miller, 425 U.S. 435, 442–44 (1976)). See also United States v. Larson, 66 M.J. 212, 215 (C.A.A.F. 2008); United States v. Caira, 833 F.3d 803, 806 (7th Cir. 2016). When Appellant voluntarily revealed his Facebook username and password to TSgt PF, he no longer had a reasonable expectation of privacy in his Facebook account. The fact that Appellant was aware that his telephone conversation was being recorded and subject to monitoring further cements the conclusion that when AFOSI used the recorded information to access and copy his Facebook messages, the investigator’s actions did not constitute a “search” under the Fourth Amendment, since they did not violate a reasonable expectation of privacy. Accordingly, the military judge did not abuse his discretion when he overruled the Defense objection and admitted Appellant’s Facebook messages.

Slip op. at 8 (marks in original) (emphasis added).

In United States v. Morales, __ M.J. __, No. 20150498 (A. Ct. Crim. App. Dec. 13, 2017) (link to slip op.), a three-judge panel of the Army CCA concludes that a military judge erred in denying a defense motion to suppress images seized from the appellant’s cell phone, because the search authorization for the cell phone lacked probable cause to search for images. The panel then reverses the appellant’s convictions outright (authorizing a rehearing), without discussing whether the admission of the images was harmless.

A general court-martial composed of members with enlisted representation convicted Private First Class (E-3) Morales of abusive sexual contact, indecent viewing, and indecent recording, in violation of Articles 120 and 120c, and sentenced him to confinement for 18 months and a bad-conduct discharge.

The convictions related to an allegation that Morales sexually touched a female soldier (identified by the initials AC) while massaging her legs during an overnight visit at her home. Morales and AC exchanged text messages after the alleged touching, and AC provided screen shots of the messages to military investigators. AC also told investigators that she discovered a nude image of herself on Morales’ cell phone a month earlier (Morales had copied the image from AC’s computer).

Based on that information, military investigators sought a broad search authorization:

[t]o conduct a digital forensic examination of the phone, SIM, and SD Micro Card to include any videos, images, photographs, other graphics, text messages, electronic mail messages, instant messages, short message service (SMS), multimedia message service (MMS), internet data files, deleted files, screen names, email accounts, user names, phone contact lists, calls, electronic account names concerning the exposing, creating, uploading, distributing, sending, deleting of any depiction of SPC AC between the time/date group 0000, 9 F[e]b 14 and 0900, 25 Feb 14.

Slip op. at 4. A military magistrate then authorized seizure of:

All [c]ellphones and/or hard drives and any physical evidence concerning digital communication pertaining to the sexual assault of SPC AC, and subsequent digital forensic examination of the collected items.

Slip op. at 4. The phone was seized and searched, and three images possibly showing the alleged sexual touching were discovered and admitted into evidence over objection by the defense.

The problem is that military investigators informed the magistrate about the text message exchange between Morales and AC, but did not inform the magistrate about the nude image (or any other images). As a result, the CCA concludes that:

Although evidence supporting probable cause to search for photographs existed, it was not presented to the magistrate. We therefore hold that the military magistrate did not have a substantial basis to conclude probable cause existed to search for any photographs.

Slip op. at 7.

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With a published decision in United States v. Kokuev, __ M.J. __, No. 201700216 (N.M. Ct. Crim. App. Nov. 8, 2017) (link to slip op.), a three-judge panel of the NMCCA denies an interlocutory prosecution appeal of a military judge’s rulings denying a request to sever the attorney-client relationship between the accused and his detailed military defense counsel, and denying a prosecution request to recall a witness.

The CCA finds that it lacks jurisdiction to review the request to sever the attorney-client relationship, and that the military judge did nor err in denying the prosecution request to recall a witness.

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In United State v. Ferrando, __ M.J. __, No. 39039 (A.F. Ct. Crim. App. Oct. 16, 2017) (link to slip op.), a three-judge panel of the Air Force CCA rejects a challenge to court-martial jurisdiction over a reservist.

Master Sergeant (E-7) Ferrando pleaded guilty to the wrongful possession of child pornography while on active duty in 2010. The charges, however, weren’t preferred until 2015, when Ferrando was a reservist. He was involuntarily activated for the purpose of receiving the preferred charges and for trial, but the orders activating him referenced 10 U.S.C. § 12301(d) (which requires the reserve member consent to the activation) rather than Article 2(d) (which does not require consent). This is an error of notable recent frequency in the Air Force. See United States v. O’Connor, No. 38420 (A.F. Ct. Crim. App. Feb. 12, 2015) (link to slip op.); United States v. Toro, Misc. Dkt. No. 2013-23 (A.F. Ct. Crim. App. Oct. 2, 2013) (link to order).

The Secretary of the Air Force approved Ferrando’s recall as needed for trial, making it possible for Ferrando to receive a sentence to confinement. See Article 2(d)(5). Ferrando then signed a pretrial agreement that limited his confinement to 90 days, and he challenged the existence of court-martial jurisdiction at trial. The military judge rejected that challenge, and the CCA agrees.

Writing for the panel, Judge Speranza explains:

Appellant committed his offense while on active duty. Importantly, Appellant retained his military status as a reservist, thus remaining subject to court-martial jurisdiction.

Slip op. at 5. As for the reference to § 12301(d) rather than Article 2(d), Judge Speranza notes:

[A]n administrative or clerical error committed by the Air Force in properly exercising its statutory jurisdiction over a member does not divest the court-martial of its otherwise lawful jurisdiction over that member.

Slip op. at 8.

A recent published decision by the Army CCA, in United States v. Russell, 76 M.J. 855, No. 20130463 (A. Ct. Crim. App. Sep 28, 2017) (link to slip op.) grappled with a military judge’s comments made prior to adjudging a sentence of confinement for life without the possibility of parole, reduction to E-1, and a dishonorable discharge.

“While deployed to Iraq, appellant fatally shot five service members at the Camp Liberty Combat Stress Clinic (CSC). Appellant suffered from mental illness and was seen by several mental health practitioners during the days immediately preceding the offenses.” Slip op. at 2. For this, Sergeant (E-5) Russell pleaded guilty to attempted premeditated murder and five specifications of premeditated murder in violation of Articles 80 and 118, and the convening authority approved the sentence as adjudged.

Immediately prior to announcing the sentence, the military judge said:

Like everyone, I have great compassion for the victims of Sergeant Russell’s crimes. I have never been so grieved as I have been by learning of the impact of Sergeant Russell’s crimes on the lives of so many, including his own family. They are indelible, unchangeable, and of an indescribable magnitude.

Sergeant Russell, I want you to know that I have compassion for you. I have anguished over both the findings and the sentence I am about to impose. No person is fully defined by his behavior at a moment in time. I know from your fellow soldiers, your sisters, your brother-in-law, your son, your mother, and your wife, that you have the capacity for good. You have endured much in your life, including some things that only soldiers must endure. And I know that good has resided in you.

You also have enormous capacity for evil, as great an evil as human beings are capable of possessing. As for the debate between the prosecution and the defense as to whether every person categorically is or is not capable of committing a certain act, in your case, that subject is not a matter of debate. I agree with you, Sergeant Russell, you are not a monster, but you have knowingly and deliberately done incredibly monstrous things. You bear the full responsibility of your decisions and your actions; and I am obligated to adjudicate the consequences. And you must, and I believe that you will, accept those consequences.

Sergeant Russell, you have forced many to drink from a bitter cup, and that includes this court. That cup is now before you.

Slip op. at 4-5. The CCA specified an issue questioning whether these remarks reflect improper sentencing considerations, but concludes that they do not.

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With a published decision in United States v. Robertson, __ M.J. __, No. 39061 (A.F. Ct. Crim. App. Oct. 30, 2017) (link to slip op.), a three-judge panel of the Air Force CCA affirms the appellant’s conviction of one specification of abusive sexual contact in violation of Article 120, for which he was sentenced to reduction to E-3 and a bad-conduct discharge, rejecting assignments of error based on alleged member misconduct affecting deliberations and the improper use of charged offenses for propensity purposes under Mil. R. Evid. 413.

Staff Sergeant (E-5) Robertson was charged with four sexual offenses all related to an encounter with another Staff Sergeant. The members found him not guilty of the three more-serious allegations, and convicted him of abusive sexual contact by touching the alleged victim’s buttocks and breasts without her consent. Slip op. at 6. Robertson testified in his own defense and admitted to the touching, but he claimed it was consensual. Slip op. at 4. The alleged victim, however, testified that all of the contact – including allegations of rape of which Robertson was acquitted – was nonconsensual, that she told him to stop, and that she resisted. Slip op. at 3-4.

The members were instructed that they could use evidence that Robertson committed the three more-serious offenses as proof of Robertson’s “propensity or predisposition to engage in a sexual offense.” Slip op. at 14 (quoting instructions). The defense did not object to the instruction.

After the members convicted Robertson, one of the members told the baliff “that another member had something in his – or her because he did not identify who it was – past that should have been disclosed that swung the vote in favor of conviction.” Slip op. at 6 (quoting military judge’s summary of the baliff’s disclosure). The military judge questioned the member, and the defense moved for a mistrial and also sought to re-open voir dire. The military judge, however, concluded that the general prohibition against inquiring into member deliberations in Mil. R. Evid. 606(b) prevented further inquiry, and denied the defense motion for a mistrial and request for voir dire.

The CCA finds that the military judge’s Mil. R. Evid. 606(b) ruling was correct, and that the erroneous propensity instruction was harmless “under the particular circumstances of this case.” Slip op. at 16.

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In January 2012 a video surfaced showing four Marines urinating on the bodies of deceased insurgent fighters in Afghanistan. The following year the investigation and military prosecutions arising from that video were our #6 Military Justice Story of 2013.

When the video appeared, then-Commandant of the Marine Corps, General James Amos, withheld disposition authority over cases associated with the video, exercising a power provided in Rule for Courts-Martial (R.C.M.) 306. Amos assigned that authority to then-Lieutenant General (now General) Thomas Waldhauser, appointing him as the consolidated disposition authority (CDA) for the cases.

But Walshauser was replaced as CDA by Lieutenant General Richard Mills (since retired) in February 2012 after – according to Waldhauser – General Amos told Waldhauser that he wanted the Marines involved in the video “crushed” and kicked out of the Corps (CNN report). General Amos eventually publicly denied making that statement.

The month after replacing Waldhauser with Mills as CDA, General Amos issued White Letter 1-12, referencing “a number of recent, widely-publicized incidents [that] have brought discredit on the Marine Corps and reverberated at the strategic level.” Amos then began a tour of Marine Corps installations, giving a presentation that became known as the Heritage Brief. I discussed the Heritage Brief in depth in this post.

Ultimately, a handful of Marines were disciplined in connection with the urination video. Some accepted non-judicial punishment. Others pleaded guilty at special courts-martial with pretrial agreements.

One of the Marines who pleaded guilty at a special court-martial was Staff Sergeant (E-6) Chamblin. On Dec. 19, 2012, Chamblin pleaded guilty to willful dereliction of duty, two orders violations, and wrongfully urinating on deceased enemy combatants. The approved sentence was confinement for 30 days (suspended), forfeiture of $500 pay per month for one month (additional months suspended), and reduction to E-5. Chamblin subsequently left active duty, wrote a book about his experiences, and foiled an alleged attempted murder.

Three days ago a three-judge panel of the Navy-Marine Corps CCA reversed Chamblin’s convictions and dismissed the charges with prejudice (meaning Chamblin cannot be re-tried) based on the appearance of unlawful command influence stemming from the actions of General Amos and his legal advisers. United States v. Chamblin, No. 201500388 (N.M. Ct. Crim. App. Nov. 8, 2017) (link to slip op.).

Writing for the unanimous panel and applying reasoning from last term’s decision in United States v. Boyce, 76 M.J. 242 (C.A.A.F. May 22, 2017) (CAAFlog case page), Judge Fulton concludes:

the burden is on the government to show, beyond a reasonable doubt, that the UCI did not place an intolerable strain upon the public’s perception of the military justice system and that an objective disinterested observer, fully informed of all the facts and circumstances, would not harbor a significant doubt about the fairness of the proceeding. We think that such an observer would share the SJA’s sense that the CMC and lawyers who reported to him “severely and systematically interfered” with this case and would harbor significant doubt about the fairness of the proceeding.

Slip op. at 16. But unlike in Boyce – where a slim majority of CAAF found that reversal with prejudice “would result in an improper windfall” in the absence of individualized prejudice, 76 M.J. at 253 n.10 (and the minority wouldn’t have reversed at all) – the NMCCA finds that:

public confidence in military justice requires dismissal with prejudice in this case. Nearly six years have passed since LtGen Waldhauser was named the CDA. Like the appellant in Salyer, this appellant had a right to a timely trial free from UCI. Col Gruter, who would have recommended that this case be disposed of nonjudicially had evidence not been withheld, has recused himself, and cannot participate further. We find lesser remedies inadequate to the harm. Dismissal of the charges and specifications with prejudice is necessary in this case to ‘“foster[ ] public confidence in the . . . fairness of our system of justice.”’

Slip op. at 17 (emphasis added) (marks in original).

It’s a remarkable conclusion not just because of the result, but because of the analysis that gets the court there.

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Last month, in this post, I discussed the decision of a three-judge panel of the Army CCA in AG v. Hargis, Military Judge, 77 M.J. 501, No. 20170417 (A. Ct. Crim. App. Aug. 16, 2017), in which the court found no jurisdiction to entertain a pre-preferral petition from an alleged victim.

Two days ago, in this published order, 77 M.J. 505, the CCA granted the alleged victim’s request for reconsideration en banc and again denied the petition.

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In A.M. v. United States, No. 201700158 (N-M. Ct. Crim. App. Jul. 31, 2017) (link to slip op.), a three-judge panel of the Navy-Marine Corps CCA denied an alleged victim’s petition for a writ of mandamus under Article 6b, making two significant findings regarding the scope of an alleged victim’s rights during the Article 32 preliminary hearing process.

First, the CCA found that the Article 6b(a)(5) right to confer with trial counsel does not include contemporaneous access to written comments submitted by the trial counsel to an Article 32 preliminary hearing officer, nor does it include participation in discussions about the case between trial and defense counsel. Second, the CCA found that the Article 6b(a)(3) right to not be excluded from a preliminary hearing does not include contemporaneous access to exhibits submitted by the parties but not displayed during the preliminary hearing.

Ultimately, the CCA concludes that:

Article 6b affords the petitioner no greater access to the documents not publically displayed while passing between the parties during the hearing than it affords to any other courtroom observer watching the proceeding.

Slip op. at 9.

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In United States v. Mark, No. 20160101 (A. Ct. Crim. App. Oct. 23, 2017) (per curiam) (link to slip op.), a three-judge panel of the Army CCA finds that the appellant waived the erroneous use of charged offenses for propensity purposes under Mil. R. Evid. 413 because his defense counsel withdrew the objection.

The catch?

The withdrawal of the objection (and the trial) occurred before CAAF decided United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page), holding that charged offenses may not be used for propensity purposes.

Prior to CAAF’s decision in Hills, Army courts-martial were bound by the Army CCA’s decision in United States v. Barnes, 74 M.J. 692 (A. Ct. Crim. App. May 8, 2015) (discussed here), pet. denied, 75 M.J. 27 (C.A.A.F. July 28, 2015), holding that:

We find no prohibition against or reason to preclude the use of evidence of similar crimes in sexual assault cases in accordance with Mil. R. Evid. 413 due to the fact that the “similar crime” is also a charged offense.

74 M.J. at 697-98. So, by withdrawing the objection, the defense merely followed the CCA’s binding precedent.

The implication?

If you follow the Army CCA’s published opinions, you waive errors on appeal.

In an unpublished opinion in United States v. Morales, No. 39018 (A.F. Ct. Crim. App. Sep. 13, 2017) (link to slip op.), a three-judge panel of the Air Force CCA considers the new Military Rule of Evidence 513 – the psychotherapist-patient privilege – as modified by Executive Order 13,696 (Jun. 17, 2015). It’s the first opinion from the Air Force court to consider the new rule.

Each of the other three CCAs have published decisions considering the new rule. In H.V. v. Kitchen, 75 M.J. 717, 718 (C.G. Ct. Crim. App. 2016) (discussed here), the Coast Guard CCA held that the rule extends “to the psychotherapist’s conclusions (diagnoses) and resulting treatments.” In L.K. v. Acosta, 76 M.J. 611 (A. Ct. Crim. App. May 24, 2017) (discussed here), the Army CCA held that the exception for evidence of child abuse or of neglect applies only inculpatory (and specifically not to exculpatory) evidence, and that the exception for a proceeding in which one spouse is charged with a crime against a child of either spouse applies only to the admission of evidence (and not to its production pursuant to an order from the court-martial). In J.M. v. Payton-O’Brien and Ravenscraft, 76 M.J. 782 (N-M. Ct. Crim. App. Jun 28, 2017) (discussed here), the Navy-Marine Corps CCA held that the constitutional rights of the accused don’t override the privilege, but a military judge may apply other remedies to protect an accused’s rights.

Writing for the Air Force panel in Morales, Senior Judge Johnson observes that the Army and Navy-Marine Corps decisions “present very different approaches to reconciling an accused’s constitutional rights with the current Mil. R. Evid. 513.” Slip op. at 14. A third approach is seen in United States v. Chisum, 75 M.J. 943 (A.F. Ct. Crim. App. Nov. 29, 2016) (discussed here), but that was  “decided under the prior version of the rule.” Slip op. at 14. And so Senior Judge Johnson writes:

In such an unsettled area of the law, it behooves us to tread lightly.

Slip op. at 14.

The opinion then discusses four issues involving Mil. R. Evid. 513.

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