CAAFlog » Courts of Criminal Appeals » CCA Opinions

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, __ M.J. __, 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.

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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,
ORDERED:

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, __ M.J. __, 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.

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On Tuesday, in this post, I analyzed the NMCCA’s astonishing opinion in United States v. Begani, __ M.J. __, 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.

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Court-martial jurisdiction for retired members is a big topic in military justice. For instance, it was the #1 Military Justice Story of 2017 and the #6 Military Justice Story of 2018.

Now, with an astonishing opinion in United States v. Begani, __ M.J. __, 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 it does 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.

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In a published decision issued yesterday and available here, a three-judge panel of the Army CCA affirms the findings and sentence in the Bergdahl case.

In 2009, then-Private First Class Bergdahl walked away from his combat outpost in Patika Province, Afghanistan, and was captured by the Taliban and held in captivity for nearly five years. He was recovered in a May 2014 trade for five Guantanamo Bay detainees. Ten months later, in March of 2015, Bergdahl (then a Sergeant) was charged with desertion with the intent to shirk important service and avoid hazardous duty in violation of Article 85(a)(2), and misbehavior before the enemy in violation of Article 99.

Bergdahl’s case made our top ten list two years in a row, as the #8 Military Justice Story of 2015 and 2016, and the processing of the case through the military justice system was bizarre: A protective order prohibited Bergdahl’s defense team from releasing information to the press before trial, Bergdahl confessed to desertion, his recorded conversations with filmmaker Mark Boal were the nucleus for season 2 of NPR’s Serial podcast (and Boal sought to avoid a subpoena), Bergdahl’s defense team went 0-7 at CAAF, and motions to dismiss were filed over and over and over again.

Eventually, however, Sergeant Bergdahl pleaded guilty to both offenses without a pretrial agreement. Then, in sentencing, the defense specifically requested that the military judge sentence Bergdahl to a dishonorable discharge, and the CCA’s opinion noted that Bergdahl “made clear to the court that he believed the appropriate punishment was a dishonorable discharge.” Slip op. at 6. The military judge sentenced Bergdahl to reduction to E-1, forfeiture of $1,000 pay per month for 10 months, and a dishonorable discharge.

During that time, Bergdahl’s case captured the attention of the late Senator John McCain, and of then-candidate and later-President Donald Trump. Specifically, Senator McCain threatened hearings if Bergdahl received no punishment, and President Trump made numerous statements and tweets about the case, both before and after his election, including calling Bergdahl a traitor and calling the adjudged sentence “a complete and total disgrace to our Country and to our Military.” Slip op. at 6 (punctuation in original).

After Bergdahl was sentenced, the defense matters to the convening authority that included a post-sentencing tweet from President Trump but requested only that the case be sent to a different convening authority for possible clemency. The defense did not request sentence reduction. The convening authority did not transfer the case, and approved the findings and sentence as adjudged.

Nevertheless, having pleaded guilty, requested a dishonorable discharge, made clear that a dishonorable discharge was appropriate, and not made any request for clemency, on appeal Bergdahl “contend[ed that] unlawful command influence [UCI] was so endemic to [his] trial and the post-trial processing that [he] was denied a fair trial, or fair post-trial processing, or the appearance thereof.” Slip op. at 1.

The CCA rejected the claim in yesterday’s decision, with a majority of the panel reaching the unsurprising conclusion that, even considering the cumulative impact of all of the potential UCI:

the cumulative effect could not reasonably be perceived by a disinterested member of the public as improper command influence or otherwise indicative of an unfair proceeding.

Slip op at 18-19.

One judge dissents, however, writing that:

The active duty Lieutenant Colonel Judge Advocate Preliminary Hearing Officer, who presided over appellant’s extensive Article 32 proceeding, recommended referral of appellant’s case to a “straight special” court-martial not empowered to adjudge any discharge, and further recommended no jail time. Major General Dahl, who led a team of over twenty investigators and lawyers during the pretrial AR 15-6 investigation into appellant’s case likewise indicated that jail time would be “inappropriate.” In light of these recommendations from senior leaders who looked closely at appellant’s case, the military judge’s ultimate sentence was hardly a windfall, and it would have been conceivable that the convening authority could have provided additional clemency. Contrary to the majority’s holding, I find that UCI infected that critical post-trial process.

Slip op. at 28-29. Accordingly, and despite the fact that Bergdahl specifically requested a dishonorable discharge, agreed that a dishonorable discharge is appropriate, and did not request mitigation of the dishonorable discharge from the convening authority, the dissenting judge believes that:

Setting aside appellant’s dishonorable discharge would bring his current sentence into line with these two recommendations, and thus purge the taint of post-trial UCI that emanated from the President’s day-of-sentencing tweet.

Slip op. at 29.

I’m far behind on my coverage of the opinions from the CCAs and of court-martial news, but two big developments this week warrant mention.

First, the court-martial of Navy Special Operations Chief Edward Gallagher – that I previously mentioned here in connection with some questionable conduct by the prosecutor (leading to the prosecutor’s removal from the case) – ended this week, with Gallagher acquitted of everything except for one specification of violation of Article 134 for wrongfully posing for an unofficial picture with a human casualty. According to reports from Fox News and NPR, Gallagher was sentenced to reduction to E-6 (from E-7; in line with the prosecution’s request) and the maximum authorized confinement for four months and forfeiture of pay for four months. Due to pretrial confinement credit, however, Gallagher will not serve any additional confinement.

Second, a three-judge panel of the Navy-Marine Corps CCA issued a massive, 57-page, 21,000+ word opinion in United States v. Wilson, No. 201800022 (N.M. Ct. Crim. App. Jul. 1, 2019) (link to slip op.), in which it finds a conviction of sexual abuse of a child to be factually insufficient. Writing for a unanimous panel, Senior Judge Tang explains:

Carefully evaluating all of BP’s [the child] testimony and statements admitted at trial, we find that BP’s statements were fatally inconsistent and wholly irreconcilable. Based on the evidence, we cannot discern how BP contends the appellant touched her, when he did so, or how many times she contends the abuse occurred. Faced with multiple descriptions of possible contacts—only some of which are consistent with guilt—we cannot find guilt beyond a reasonable doubt based solely on BP’s statements.

We next look to the other evidence admitted at trial for corroboration. We do not find evidence sufficient to overcome the infirmities in BP’s statements. There were no witnesses, physical evidence, or admissions of guilt by the appellant.

We next consider the testimony of several preeminent expert witnesses in the field of child psychology, maltreatment, and forensic interviewing. Most were presented by the government. The experts’ testimony assists us in understanding the limitations in children’s memories and children’s susceptibility to suggestion. But the expert testimony does nothing to resolve our genuine misgivings with the evidence. Rather, the testimony of the government’s expert witnesses only further diminishes the reliability of BP’s forensic inter-view and trial testimony.

Slip op. at 29 (emphasis in original). The analysis concludes:

We do not expect perfect consistency or flawless oratory from a six-year-old child. However, the government’s own experts indicated that, at least in July 2016, BP was capable of providing a narrative clearly describing her abuse but did not. And the government’s own experts found infirmities in the interview technique and a lack of clarity in BP’s statements. The expert testimony cannot reasonably explain the inconsistencies between all of BP’s statements.

. . .

We have carefully reviewed the government’s arguments on the evidence as they view it. We do not find that the proof is “such as to exclude . . . every fair and rational hypothesis except that of guilt.” Loving, 41 M.J. at 281.

Slip op. at 52-53.

Back in January, in United States v. Peebles, 78 M.J. 658 (A. Ct. Crim. App. Jan 10, 2019) (discussed here), the Army CCA held that the minimum mens rea for sexual assault by causing bodily harm (where the sexual act is the bodily harm) is recklessness.

The decision came nearly four months after CAAF granted review of that very issue – and three months before CAAF would reach the opposite decision – in United States v. McDonald, __ M.J. __, (C.A.A.F. Apr. 17, 2019) (CAAFlog case page). The decision also directly contradicted (and specifically rejected) the contrary decision of the Navy-Marine Corps CCA in United States v. Patrick, 78 M.J. 687 (N.M. Ct. Crim. App. Dec. 11, 2018) (link to slip op.).

Now, with the ink barely dry on CAAF’s decision in McDonald (and despite the possibilities of reconsideration by CAAF and review by SCOTUS) the Army CCA hastily retreats with this per curiam decision on reconsideration in Peebles, issued on April 24, 2019:

In light of our superior court’s decision in United States v. McDonald, __M.J.__, 2019 CAAF LEXIS 271 (C.A.A.F. 17 Apr. 2019), this court sua sponte reconsiders its 10 January 2019 decision in this case

For the reasoning set forth by our superior court in McDonald, the 10 January 2019 published opinion of this court, United States v. Peebles, 78 M.J. 658 (Army Ct. Crim. App. 2019), is hereby VACATED.

Pursuant to our reconsideration of the entire record, we hold the findings of guilty and the sentence as approved by the convening authority correct in law and fact. Accordingly, those findings of guilty and the sentence are AFFIRMED.

With a published opinion issued in United States v. Peebles, __ M.J. __, No. 20170044 (A. Ct. Crim. App. Jan 10, 2019) (link to slip op.), a three-judge panel of the Army CCA holds:

recklessness is the mens rea applicable to the element of non-consent in Article 120(b)(l)(B), where the bodily harm is alleged to be the sexual act itself.

Slip op. at 10. Writing for the panel, Judge Salussolia elaborates:

Recognizing the application of the general principle that “wrongdoing must be conscious to be criminal” and that we cannot discern the level of mens rea Congress intended to apply to Article 120(b)(l)(B), UCMJ, we find the mens rea of “recklessness” is the minimum mental state necessary to separate wrongful conduct from otherwise innocent conduct. See Gifford, 75 M.J. at 144. Recklessness requires an accused “knew that there was a substantial and unjustifiable risk that the social harm the law was designed to prevent would occur and ignored this risk when engaging in the prohibited conduct.” Haverty, 76 M.J. at 204-05 (citing Black’s Law Dictionary 1462 (10th ed. 2014)). Put differently, in the context of Article 120(b)(l)(B), UCMJ, an accused acts recklessly with respect to a victim’s nonconsent when he consciously disregards a substantial and unjustifiable risk that the victim does not consent to his engaging in the sexual act. See Model Penal Code § 2.02. Thus, to convict the appellant of sexual assault caused by bodily harm, the government had to prove the following: (1) that appellant committed a sexual act upon alleged victim; (2) that the alleged victim did not consent to the sexual act; and (3) that appellant committed the sexual act with a reckless disregard as to the alleged victim’s non-consent.

Slip op. at 13.

The decision comes in advance of CAAF’s resolution of the same question in the Army case of United States v. McDonald, No. 18-0308/AR (grant of review discussed here). CAAF has not (yet) scheduled oral argument in McDonald.

The decision also supersedes a prior – though unpublished – decision by the Army CCA, in which the court held:

We reject appellant’s assertion that “lack of consent” is a material element of the crime of sexual assault or abusive sexual contact requiring a separate mens rea. Consistent with our superior court, we believe it is more precise to treat the “nonconsensual” requirement as a potential subsidiary fact with respect to the element of bodily harm rather than a distinct element of the offense. See United States v. Neal, 68 M.J. 289, 301-02 (C.A.A.F. 2010) (interpreting the 2006 version of Article 120 to allow “treating evidence of consent as a subsidiary fact potentially relevant to a broader issue in the case, such as the element of force.”).

United States v. Rivera, No. ARMY 20160393, 2017 CCA LEXIS 740, at *7 n.3 (A. Ct. Crim. App. Nov. 28, 2017) (link to slip op.), rev. denied, 77 M.J. 313 (C.A.A.F. 2018)

With a published decision in United States v. Hernandez, __ M.J. __, No. 1452 (C.G. Ct. Crim. App. Oct 31, 2018) (link to slip op.), a three-judge panel of the Coast Guard CCA consolidates three convictions of assault consummated by a battery into one, concluding “that separate assaults consummated by battery of a single person that are united in time, circumstance, and impulse fall within one unit of prosecution under Article 128, not several.” Slip op. at 5.

Electrician’s Mate Second Class (E-5) Hernandez unconditionally pleaded guilty at a special court-martial to three specifications of assault consummated by a battery in violation of Article 128. His pleas at a special court-martial avoided a trial by a general court-martial for touching another service member in a sexual manner. The three specifications “alleged that in the same location on the same date, [Hernandez] unlawfully touched [the alleged victim] ‘on the leg, above the knee, with his pelvis,’ (Specification 1), ‘on her ribs and upper torso with his hands,’ (Specification 2), and ‘on her hips with his hands’ (Specification 3).” Slip op. at 2. Hernandez was sentenced to confinement for eight months, reduction to E-1, and a bad-conduct discharge.

“The prohibition against multiplicity is necessary to ensure compliance with the constitutional and statutory restrictions against Double Jeopardy.” United States v. Campbell, 71 M.J. 19, 23 (C.A.A.F. 2012) (CAAFlog case page) (quoting United States v. Quiroz, 55 M.J. 334, 337 (C.A.A.F. 2001)). Multiplicity generally arises when an accused is charged with violating two separate statutes based on a single bad act. If the two offenses are related such that one is a lesser included offenses of the other, then conviction of both violates the prohibition against double jeopardy. See United States v. Elespuru, 73 M.J. 326, 328 (C.A.A.F. 2014) (citations omitted) (CAAFlog case page).

But a lesser-known kind of multiplicity arises when an accused is charged with multiple violations of a single statute based on a single course of conduct, such as a physical attack where every strike results in a separate charge of assault consummated by a battery. When that happens it is necessary to determine if Congress intended the offense to be applied as a “continuous-course-of-conduct offense or as an individual-act offense.” United States v. Neblock, 45 M.J. 191, 197 (C.A.A.F. 1996). In Neblock, CAAF explained that:

If [the offense] is a continuous-course-of-conduct offense as a matter of law, a separate conviction for each alternative method of commission or component of this offense during the course of conduct might not be authorized. If it is a distinct or discrete-act offense, separate convictions are allowed in accordance with the number of discrete acts.

Neblock, 45 M.J. at 197 (citations omitted). So, for example, in a case involving multiple charges of assault, CAAF has held that assault is “a continuous course-of-conduct-type offense and that each blow in a single altercation should not be the basis of a separate finding of guilty.” United States v. Flynn, 28 M.J. 218, 221 (C.M.A. 1989).

In Hernandez the Coast Guard CCA considers a number of precedents including Flynn (but not Neblock) and concludes that the three specifications of assault consummated by a battery are multiplicious (and even facially duplicative, allowing Hernandez to raise the issue for the first time on appeal) because:

The three touchings “happened around the same time,” “happened really fast,” and were part of an uninterrupted sequence in which Appellant attempted “to make a pass” on a single victim. (R. at 42, 46.) The stipulation of fact illustrates the point. It begins the recitation of each touching with, “I climbed on top of SK3 J.C., who was lying on the bed, and touched . . . .” (Prosecution Ex. 1 at 2–3). It says that SK3 JC “felt uncomfortable” and “felt threatened” by each touching. (Id. at 2–4.) After describing the third touching, it says that SK3 JC was “immediately startled,” at which point she told him to stop, pushed him off her, and the unwanted physical contact ceased. (Id. at 3). Given congressional intent as pronounced in Morris and this unity of time, circumstance, and impulse, the three convictions under Article 128 were for touchings that fell within but one unit of prosecution and therefore violated the Double Jeopardy Clause. We thus consolidate the specifications in our decretal paragraph.

Slip. op. at 6-7. The CCA reassesses the sentence, reducing the confinement to six months and the reduction in rank to E-2 but affirming the bad-conduct discharge.

With a published opinion captioned In re: Vance, __ M.J. __, No. 20180011 (A. Ct. Crim. App. Nov. 5, 2018) (link to slip op.), a three-judge panel of the Army CCA issues a writ of mandamus “directing the convening authority to take action on this case in the manner required under Article 60, UCMJ” – meaning to approve the findings and sentence of a general court-martial. Slip op. at 9.

Captain Vance was accused of misuse of his government travel card and of unauthorized absences in 2016 and 2017. He submitted a request to resign in lieu of court-martial. Soon afterward, he submitted an offer to plead guilty at a general court-martial. The plea offer was accepted by the convening authority and Vance pleaded guilty in January 2018 and was sentenced to a dismissal and forfeiture of $1,000 pay per month for three months. Then, in March 2018, Vance’s resignation request was accepted by the Deputy Assistant Secretary of the Army. “The Secretary’s designee issued a directive that CPT Vance be administratively discharged with an Under Other Than Honorable Conditions characterization of service and, as to the court-martial, ‘both findings and sentence, if any, be vacated.'” Slip op. at 2.

Can’t do that.

The current version of Article 60 – as amended by the 2013 changes to the UCMJ – prohibits a convening authority from disapproving a finding of guilty except in cases involving only minor offenses or in cases involving an offense committed before June 24, 2014. Neither exception applies to Vance’s general court-martial conviction. Nevertheless, the convening authority (as instructed by the Deputy Assistant Secretary of the Army) disapproved the findings in Vance’s case.

The CCA finds that action to be void:

The convening authority’s action complied . . . was prohibited by the amendments to Article 60, UCMJ. The convening authority was prohibited from setting aside any finding. The convening authority was also prohibited from setting aside the dismissal. Accordingly, we reach the same result as we did in Alvin, and determine that the convening authority’s action was void ab initio.

Slip op. at 5. Writing for the panel, Judge Wolfe further explains:

As we see it, according to Congress’s amendment to Article 60, UCMJ, the convening authority’s only authorized action was to approve the findings and the dismissal. If the convening authority could not change the sentence, under the statutory scheme that results, review by this Court was mandatory once the sentence was determined by the court-martial. Put differently, our mandatory review under Article 66(c), UCMJ, was triggered by the sentence to a dismissal, which the convening authority was prohibited from changing.

Slip op. at 6.

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In United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), a unanimous CAAF upended precedent to hold that the offense of rape of an adult (without aggravating factors) is not constitutionally punishable by death, and so the statute of limitations for a court-martial prosecution for that offense (prior to amendments enacted in 2006) is just five years. Mangahas was charged with rape in 2015 based on allegations dating from 1997. He moved to dismiss on both due process (speedy trial) grounds and based on the statute of limitations (even though precedent was solidly against the statute of limitations challenge). The military judge agreed with the due process challenge and dismissed the charge, but the prosecution appealed and the Air Force CCA reversed the military judge. CAAF then granted review and reinstated the dismissal, but it did so by re-interpreting the applicable statute of limitations (CAAF did not decide the due process challenge).

A recent decision by the Air Force CCA applies Mangahas to reverse a rape conviction and dismiss the charge, even though the appellant did not object at trial. In United States v. Collins, __ M.J. __, No. 39296 (A.F. Cr. Crim. App. Jul 23, 2018) (link to slip op.), a three-judge panel of the CCA explains:

Appellant contends that in light of Mangahas, the military judge committed plain error which requires this court to set aside the findings and sentence and to dismiss the charge and specification. We agree.

Under Mullins and Harcrow, we must apply the clear law at the time of appeal to cases that, like Appellant’s, are pending direct review. Mullins, 69 M.J. at 116. In light of Mangahas, the statute of limitations applicable to the charged offense of rape in violation of Article 120, UCMJ, committed on or about 25 August 2000 was five years. See Mangahas, 77 M.J. at 225. Therefore, the statute of limitations in Appellant’s case expired in August 2005, more than ten years before the charge and specification were preferred and delivered to the summary court-martial convening authority in March 2016. Accordingly, we must evaluate the events at trial in this light.

Slip op. at 6.

The case involves an allegation dating to 2000, when the alleged victim was attending initial accession training in the Air Force and Collins was one of her instructors. The alleged victim made the allegation in 2000, but she would not identify the assailant because “she did not want to ‘ruin a family.'” Slip op. at 3. The alleged victim specifically “denied that it had been one of her course instructors.” Slip op. at 3. Because she would not identify the assailant, military and civilian prosecutors ended their investigation, and the physical evidence was destroyed in 2012.

The alleged victim renewed her allegation in 2014, “this time identifying Appellant as having raped her at Sheppard AFB in 2000.” Slip op. at 3. A court-martial prosecution followed, and in 2017 Collins (then a Master Sergeant (E-7)) was convicted of a single specification of rape in violation of Article 120 and sentenced to confinement for 198 months, total forfeitures, reduction to E-1, and a dishonorable discharge.

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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, [1998] 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).

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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).

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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).

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