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In a published issued yesterday, in United States v. Dinger, __ M.J. __, No. 201600108 (N.M. Ct. Crim. App. Mar. 28, 2017) (link to slip op.), a three-judge panel of the Navy-Marine Corps CCA affirms a concept that I last noted here: Military retirement isn’t really retirement, it’s merely a change in duty status-

Notwithstanding Barker [v. Kansas, 503 U.S. 594, 605 (1992)] and its implications regarding the tax status of retired pay, we are firmly convinced that those in a retired status remain “members” of the land and Naval forces who may face court-martial. As the appellant was in a retired status during the offenses and the proceedings, he was validly subject to court-martial.

Slip op. at 8.

The appellant, Gunnery Sergeant Dinger, USMC (Ret.), pleaded guilty to two specifications of committing indecent acts, one specification of attempting to produce child pornography, two specifications of wrongfully making an indecent visual recording, and one specification of receiving, viewing, and possessing child pornography, in violation of Articles 80, 120, 120c, and 134, UCMJ.

All of the offenses were committed after Dinger entered a retired status following the completion of 20 years of enlisted service in the active component of the Marine Corps. The military judge sentenced Dinger to confinement for nine years and a dishonorable discharge, and the convening authority suspended all confinement in excess of 8 years in accordance with a pretrial agreement.

Writing for the panel Judge Rugh explains that:

By act of Congress, the appellant was subject to the UCMJ when he committed the offenses. Art. 2(a), UCMJ (“The following persons are subject to this chapter . . . . Retired members of a regular component of the armed forces who are entitled to pay. . . . [and] Members of the Fleet Reserve and Fleet Marine Corps Reserve.”).

Slip op. at 4 (link to Article 2).

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Article 73 allows an accused convicted by a court-martial to petition for a new trial on the grounds of newly discovered evidence or fraud on the court. In a decision issued last week in Cook v. United States, Misc. Dkt. No. 2016-18 (link to slip op.), a three-judge panel of the Air Force CCA grants one such petition on the basis of newly discovered evidence.

Judge Speranza, writing for the unanimous panel, finds that the prosecution made an issue of whether the alleged victim would have consented to the alleged sexual act, rather than whether she did in fact consent. As a result:

newly found evidence regarding [the alleged victim’s] extramarital sexual relationship with [a paramour] would probably produce a substantially more favorable result for Petitioner in findings and, at the very least, sentencing. Moreover, evidence that [the alleged victim] engaged in an extramarital affair with [the paramour] discloses noncumulative impeachment evidence that is relevant not only to a material issue in the case, but the dispositive issue in Petitioner’s case — [the alleged victim’s] credibility.

Slip op. at 12 (emphases in original).

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Mil. R. Evid. 513 is the military psychotherapist-patient privilege. The scope of the rule, and its exceptions, have been a topic in recent high-profile cases including EV v. United States & Martinez, 75 M.J. 331 (C.A.A.F. 2016) (CAAFlog case page), and Randolph v. HV. and United States, No. 16-0678/CG (CAAFlog case page) (argued Tuesday, October 11, 2016).

A recent published opinion by the Air Force CCA in United States v. Chisum, 75 M.J. 943, No. S32311 (A.F. Ct. Crim. App. Nov. 29, 2016) (link to slip op.), provides additionally analysis of the rule. Specifically, the CCA addresses when a military judge is required to conduct an in camera review of mental health records. Acknowledging the three-prong test stated by the NMCCA in United States v. Klemick, 65 M.J. 576, 580 (N-M. Ct. Crim. App. 2006), the Air Force CCA concludes that:

in applying this three-prong test, we recognize that the burden for in camera review is not high because the moving party will often be unable to determine the specific information contained in a psychotherapist’s records. See [Klemick]. We also note that “[w]here discovery obligations potentially impact a recognized privilege, an in camera review is generally the preferred method for resolving the competing compulsions.” Bowser, 73 M.J. at 897.

Slip op. at 6 (emphasis added).

Applying this not high burden, the CCA finds that the military judge abused his discretion by failing to conduct an in camera review of the mental health records of the two prosecution witnesses whose testimony was the primary evidence that the appellant wrongfully used cocaine. The witnesses acknowledged receiving mental health treatment for perception and memory issues, and the CCA finds that this was “a reasonable basis for the military judge to conclude that the mental health records contained further information reflecting the extent and severity” of those conditions. Slip op. at 7.

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In this post from November I noted a published opinion by a three-judge panel of the NMCCA in United States v. Kruse, No. 201600101, in which the court found that the convening authority did not have the power to disapprove an adjudged punitive discharge when the pretrial agreement stated that the convening authority may approve the discharge, but the agreement only required suspension of the discharge. The panel reinstated the discharge but then suspended it – an action that I noted was outside the power of a CCA.

The CCA has reconsidered the case en banc. United States v. Kruse, __ M.J. __ (N.M. Ct. Crim. App. Dec. 22, 2016) (en banc) (link to slip op.). While it reaches the same conclusion about the convening authority’s power, the en banc court does not suspend the discharge. Rather, noting that the appellant was administratively separated post-trial, the CCA concludes that the discharge was remitted by the administrative separation. This conclusion is consistent with CAAF’s explanation in United States v. Watson, 69 M.J. 415, 416 (C.A.A.F. 2011), that “a post-trial administrative discharge operates to remit the unexecuted punitive discharge portion of an adjudged court-martial sentence.”

Chief Judge Palmer authored both of the CCA’s opinions in Kruse.

Kruse is notable because it involves the new Article 60(c) but in the reverse of the fact pattern from United States v. Roller, 75 M.J. 659, (N-M. Ct. Crim. App. Mar. 31, 2016) (discussed here), in which the NMCCA held that it was an affirmative misstatement of the law for a SJA to fail to advise the convening authority of the restored power in a case involving an offense that occurred before June 24, 2014. In Roller the convening authority was not constrained by the new Article 60(c) but was improperly advised that he was. In Kruse, however, the convening authority was constrained by the new Article 60(c) but he did more than the pretrial agreement authorized (also on the improper advice of a staff judge advocate).

Here’s the bottom line: The new Article 60(c) applies in all cases tried on or after June 24, 2014, unless the case involves a conviction of an offense occurring before June 24, 2014.

The authority for this is the Carl Levin And Howard P. “Buck’” Mckeon National Defense Authorization Act For Fiscal Year 2015, § 531(g)(2)(A)(ii), 128 Stat. 3292, 3366 (2015) (discussed here):

With respect to the findings and sentence of a court-martial that includes both a conviction for an offense committed before [June 24, 2014] and a conviction for an offense committed on or after that effective date, the convening authority shall have the same authority to take action on such findings and sentence as was in effect on the day before such effective date, except with respect to a mandatory minimum sentence under section 856(b) of title 10, United States Code (article 56(b) of the Uniform Code of Military Justice).

Subsequently, on June 19, 2015, the President inserted a note into R.C.M. 1107 to emphasize this exception:

Note: Subsections (b)–(f) of R.C.M. 1107 apply to offenses committed on or after 24 June 2014; however, if at least one offense in a case occurred prior to 24 June 2014, then the prior version of RCM 1107 applies to all offenses in the case, except that mandatory minimum sentences under Article 56(b) and applicable rules under RCM 1107(d)(1)(D)–(E) still apply.

R.C.M. 1107, note (M.C.M. 2016 ed.). See also Executive Order 13696, 80 Fed. Reg. 35,783, 35,810 (June 22, 2015) (discussed here).

In a published decision in United States v. Guardado, 75 M.J. 889, No. 20140014 (A. Ct. Crim. App. Nov. 15, 2016) (link to slip op.), a three-judge panel of the Army CCA dissects CAAF’s blockbuster opinion in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page).

Reading Hills broadly to state “that propensity evidence may never be used between charged offenses, regardless of how separate and distinct the offenses [are] in time and place,” slip op. at 12 (emphasis added), the CCA nevertheless finds that the use of charged sexual offenses as evidence of the appellant’s propensity to commit the same charged sexual offenses – in a trial before members – was harmless based on five factors.

Judge Wolfe writes for the panel. Senior Judge Mulligan concurs but authors a brief separate opinion that dissents from Judge Wolfe’s broad reading of Hills, concluding instead that “Hills should not be read sweepingly to preclude evidence of other offenses, charged or uncharged, on different victims, at different times and locations.” Slip op. at 30.

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In a published opinion in United States v. Kruse, __ M.J. __, No. 201600101 (N.M. Ct. Crim. App. Nov. 3, 2016) (link to slip op.), a three-judge panel of the NMCCA finds that the convening authority did not have the power to disapprove an adjudged punitive discharge when the pretrial agreement only provided for suspension of any adjudged discharge.

The appellant pleaded guilty to numerous drug offenses and was sentenced to confinement for 100 days, reduction to E-1, forfeiture of $300.00 pay per month for three months, and a bad-conduct discharge. A pretrial agreement required suspension of the bad-conduct discharge. But the CCA disapproved the punitive discharge and the appellant was administratively separated.

As part of the 2013 changes to the UCMJ, Congress significantly limited the convening authority’s Article 60(c) power to act on the results of a court-martial. I analyzed the changes in depth in this post and in this LexisNexis Emerging Issues Analysis. Those changes were effective on June 24, 2014, and applied only to offenses that occurred on or after that effective date. However, because courts-martial adjudge unitary sentences (a single sentence for all convictions), a case involving convictions for offenses committed both before and after June 24, 2014, presented a paradox. Congress resolved this problem in December 2014 by mostly restoring the convening authority’s original power in cases involving convictions for misconduct that occurred before June 24, 2014. See Carl Levin And Howard P. “Buck’” Mckeon National Defense Authorization Act For Fiscal Year 2015, § 531(g)(2)(A)(ii), 128 Stat. 3292, 3366 (2015) (discussed here).

Earlier this year, in United States v. Roller, 75 M.J. 659, (N-M. Ct. Crim. App. Mar. 31, 2016) (discussed here), the Navy-Marine Corps CCA held that it was an affirmative misstatement of the law for a SJA to fail to advise the convening authority of the restored power in a case involving an offense that occurred before June 24, 2014.

Kruse presents the opposite problem from Roller. In Roller the convening authority was not constrained by the new Article 60(c), but was improperly advised that he was. In Kruse, however, the convening authority was constrained by the new Article 60(c), but he did more than the pretrial agreement authorized.

Writing for the panel, Chief Judge Palmer (who also authored the CCA’s opinion in Roller) explains that:

Here, the government does not offer, nor do we find in the legislative history, any clear expression of Congressional intent permitting a CA to take action inconsistent with the law or plain terms of a pretrial agreement. Indeed, we need look no further than the FY14 NDAA which presages the Article 60 changes with the section heading: “Elimination of Unlimited Command Prerogative and Discretion; Imposition of Additional Limitations.” Given Congress’ clear desire to limit CA discretion in granting post-trial sentencing relief, we are unable, as the government urges, to read this agreement so broadly as to permit the CA to grant relief that was not specifically contained within the pretrial agreement.

Slip op. at 5. The CCA concludes that the convening authority’s disapproval of the discharge was a nullity.

But then, noting that the appellant was administratively discharged post-trial, the CCA does something strange:

We affirm the findings and the sentence of a bad-conduct discharge, 100 days’ confinement, and forfeiture of $300.00 pay per month for three months. We further enforce the terms of the pretrial agreement by suspending and remitting the adjudged bad-conduct discharge.

Slip op. at 6.

While a CCA may disapprove a punitive discharge (functionally the same result as suspending and remitting), it’s well-settled that a CCA does not have the authority to suspend any part of a sentence on its own. That, however, hasn’t stopped the NMCCA from doing so in the recent past (discussed here).

Today CAAF will hear oral argument in the Air Force case of United States v. McClour, No. 16-0455/AF (CAAFlog case page). The case presents a single issue that challenges the propriety of an instruction to members that:

if based on your consideration of the evidence, you are firmly convinced that the accused is guilty of any offense charged, you must find him guilty

(emphasis added). Despite the question pending before CAAF, yesterday, in a published opinion in United States v. Rendon, __ M.J. __, No. 201500408 (N.M. Ct. Crim. App. Nov. 1, 2016), a three-judge panel of the NMCCA affirmed the use of such an instruction. The opinion isn’t yet posted on the CCA’s website, but it’s available here.

Writing for the panel, Senior Judge Campbell explains:

Specifically regarding the “must find him guilty” portion of the Federal Judicial Center’s instruction, the Air Force Court of Criminal Appeals and numerous Federal Circuit and state appellate courts have expressly held that jurors may be instructed that they “must find” a defendant guilty if they are convinced of the guilt beyond a reasonable doubt. Indeed, the Eighth and Tenth Circuit Courts of Appeals’ own model criminal jury instructions have the same language that the military judge used in this case.

Despite this well-settled law, the appellant contends the reasonable doubt instruction here was the equivalent of a directed guilty verdict, in violation of United States v. Martin Linen Supply Co., 430 U.S. 564 (1977). In dicta, Martin Linen Supply Co. states that “a trial judge is prohibited from entering a judgement of conviction or directing the jury to come forward with such a verdict . . . regardless of how overwhelmingly the evidence may point in that direction.” Id. at 572-73 (citations omitted). However, cases in which that prohibition has truly been at issue are clearly distinguishable from this case and in no way suggest that the military judge directed a conviction, or otherwise erred, in providing the reasonable doubt instruction at issue here.

Slip op. at 12-13 (emphasis added).

In a published opinion in United States v. Hennis, 75 M.J. 796, No. 20100304 (A. Ct. Crim. App. Oct. 6, 2016) (en banc) (link to slip op.), the Army Court of Criminal Appeals unanimously affirms the findings and the sentence to death of Master Sergeant Timothy Hennis (U.S. Army Ret.) for three specifications of premeditated murder.

Our #2 military justice story of 2010 was the conviction and capital sentence of Hennis.. Hennis is one of only five current military death row inmates (the others are Gray, Loving, Akbar, and Hasan; Witt is pending a sentence rehearing).

Hennis was tried three times for the gruesome 1985 rape and murder of Kathryn Eastburn, the wife of an Air Force captain who was out of town on temporary duty, as well as the murder of their two daughters. The first two prosecutions were by state authorities in North Carolina. First, Hennis was convicted of the murders in 1986 and he was sentenced to death. The North Carolina Supreme Court reversed that conviction in 1988. Hennis was then retried by North Carolina in 1989, and he was acquitted.

Hennis decided to remain on active duty in the Army after his acquittal, and he retired in 2004. However, retired members of an active component aren’t retired in the traditional sense of the word; they remain in the military, they’re subject to the UCMJ, and their retirement pay isn’t a pension but rather “is reduced compensation for reduced current services.” McCarty v. McCarty, 453 U.S. 210, 222 (1981). And so when advances in DNA allowed investigators to determine with scientific certainty that sperm found in the body of the murdered woman came from Hennis, he was recalled to active duty in 2006 and tried by court-martial for the murders.

He was convicted and, on April 15, 2010, the court-martial sentenced him to death, dishonorable discharge, total forfeitures, and E-1.

After rejecting numerous assertions of error (including jurisdictional challenges) the Army CCA finds the capital sentence appropriate for Hennis, concluding:

We are required to assess the proportionality of appellant’s death sentence. Under Article 66(c), UCMJ, we conclude the approved sentence is correct in law and fact. Further, under the circumstances of this case, including appellant’s rape of one of the murder victims, the vulnerability inherent in the young ages of the other two murder victims, and appellant’s mutilation of all three murder victims, we conclude the adjudged and approved death sentence fits the crimes of which he was found guilty. We further find “the sentence is generally proportional to those imposed by other jurisdictions in similar situations.”

Slip op. at 106 (citations omitted).

In United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page), a unanimous CAAF held that charged offenses may not be used under Mil. R. Evid. 413 to prove an accused’s propensity to commit the charged offenses, and also that the standard instruction given to members regarding how to handle such propensity undermines the presumption of innocence. Since deciding Hills, CAAF has summarily remanded five additional cases for reconsideration in light of Hills.

Separate from those remands, but also the wake of Hills, the Air Force, Army, and Navy-Marine Corps CCA have each decided cases involving the use of charged offenses as evidence to prove the accused’s propensity to commit the charged offenses.

In United States v. Hukill, No. 20140939 (A. Ct. Crim. App. Aug. 16, 2016) (discussed here), the Army CCA concluded that CAAF’s decision in Hills does not apply in judge-alone trials.

In United States v. Ellis, No. 201500163 (N.M. Ct. Crim. App. Aug. 30, 2016) (discussed here) the Navy-Marine Corps CCA applied Hills to reverse the appellant’s convictions of sexual assault upon two different women whose allegations were separated in time by nine months but shared numerous similarities. Ellis was tried before members.

In United States v. Phillips, No. 38771 (A.F. Ct. Crim. App. Sep. 7, 2016) (discussed here), the Air Force CCA reached a similar conclusion to that reached by the Army CCA in Hukill, affirming sex offense convictions in a case where a military judge alone considered the charged offenses as propensity evidence.

Now, in United States v. Bonilla, No. 20131084 (A. Ct. Crim. App. Sep 30, 2016) (link to slip op.), a three-judge panel of the Army CCA goes a step further and affirms convictions by members despite the prosecution’s use of the charged offenses for propensity purposes. Significantly, similar to the facts of Hills, the case involved a single alleged victim where multiple alleged sexual assaults were charged and then each used as proof of the others. The military judge also used the standard Benchbook instruction that CAAF found constitutionally defective in Hills. However, the Army CCA finds these errors to be harmless, distinguishing the facts of Bonilla from those of Hills on five bases:

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A recent published decision of the Air Force CCA, in United States v. Kerns, __ M.J. __, No. 38792 (A.F. Ct. Crim. App. Sep. 22, 2016) (link to slip op.), reaches two significant conclusions.

First, the CCA finds that the appellant’s statements to Air Force investigators, made ten days after he terminated a prior interrogation and asked for a lawyer, were improperly admitted by the military judge because the investigators re-initiated interrogation before expiration of the 14-day cooling-off period required by the Supreme Court in Maryland v. Shatzer, 559 U.S. 98, 110-111 (2010).

Second – and unique to military law – the CCA refuses to undertake an appellate rescue mission that might salvage the statements. Shatzer only applies if both interrogations were custodial, but none of the trial-stage participants considered Shatzer when litigating the admissibility of the appellant’s statements and the military judge made no determination about whether the first interrogation was custodial and started the 14-day clock. The prosecution, of course, had the burden to prove the admissibility of the statements at trial, and the failure to present evidence about the custodial nature of the first interrogation is a failure of proof by the prosecution. See Mil. R. Evid. 304(f)(6). See also 18 U.S.C § 3501; Lego v. Twomey, 404 U.S. 477, 489 (1972). But on appeal:

The Government argues that we should use our Article 66(c), UCMJ, 10 U.S.C. § 866(c), fact-finding power to supplement the military judge’s findings and hold that the 18 January interview was non-custodial.

Slip op. at 9. The CCA declines for numerous reasons including that “a record this undeveloped precludes us from meaningfully exercising our fact-finding power.” Slip op. at 11.

The CCA reverses all but one of the appellant’s convictions and authorizes a rehearing.

Having closed many of its military confinement facilities, the Air Force often relies on civilian jails and prisons to house military inmates. Two years ago, in the companion Air Force cases of United States v. McPherson, 73 M.J. 393 (C.A.A.F. Aug. 21, 2014) (CAAFlog case page), and United States v. Wilson, 73 M.J. 404 (C.A.A.F. Aug. 21, 2014) (CAAFlog case page), CAAF held that the Article 12 prohibition against confining service members in immediate association with non-service member aliens applies even when a service member is confined in a civilian facility. But CAAF also held that a service member must exhaust all administrative remedies prior to seeking judicial relief for a violation of that prohibition.

The Air Force responded to McPherson and Wilson by using solitary confinement to avoid co-mingling. That, predictably, led to other complaints. In United States v. Gay, 74 M.J. 736 (A.F. Ct. Crim. App. Jun. 12, 2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016) (CAAFlog case page), the AFCCA held that solitary confinement (where the appellant was alone 23 hours per day, and suffered other administrative hardships) in a civilian facility, imposed in response to a complaint of co-mingling in violation of Article 12, was not cruel and unusual punishment but is deserving of relief under the CCA’s Article 66(c) sentence-appropriateness power, and CAAF affirmed the CCA’s grant of sentencing relief under such circumstances.

Recently, however, the AFCCA denied relief to an appellant who suffered similar deprivations because “unlike the situation in Gay, Appellant in the present case—despite having mechanisms to do so—made no complaint regarding any condition of his confinement before raising the matter on appeal.” United States v. Garcia, No. 38814, slip op. at 8 (A.F. Ct. Crim. App. Aug. 16, 2016) (link to slip op.). This is not the only factor, however, as the CCA also finds that “nothing regarding Appellant’s confinement strikes us as especially unusual or egregious.” Id.

In United States v. Talkington, 73 M.J. 212 (C.A.A.F. 2014) (CAAFlog case page), CAAF held that because sex offender registration is a collateral consequence of the conviction and not the sentence, a military judge did not err in instructing the members that they could disregard the appellant’s discussion of sex offender registration in his unsworn statement during the sentencing phase of the court-martial.

Talkington was a significant decision, but also a limited one. In particular, the unsworn statement was the only source of information about registration in Talkington, meaning that the issue was a fact not in evidence because “the ‘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)).

After CAAF decided Talkington, military judges began to give instructions that functionally told members to disregard registration when determining a sentence. However, in a recent unpublished decision the Army CCA suggests that military judges should go further and “limit unsworn statements to the matters allowed under the rules.” United States v. Feliciano, No. 20140766, slip op. at 9 (A. Ct. Crim. App. Aug. 22, 2016) (link to slip op.).

A footnote elaborates:

Consider the following: Were a military judge to prevent an accused from mentioning sex offender registration during an unsworn statement, such an action will almost certainly be harmless error. Since the panel may be instructed to ignore the information during deliberations, there cannot be prejudice from excluding in the first instance what the panel would be told to ignore in the second.

Id., slip op. at 9 n.4.

In United States v. Henegar, __ M.J. __ (N.M. Ct. Crim. App. Aug. 18, 2016) (link to slip op.), the NMCCA addresses the apparent tension between the Article 56 mandatory minimum punishment of dismissal or dishonorable discharge for a conviction of an attempt to commit certain sex offenses, and language in the Manual for Courts-Martial that states:

Any person subject to the code who is found guilty of an attempt under Article 80 to commit any offense punishable by the code shall be subject to the same maximum punishment authorized for the commission of the offense attempted, except that in no case . . . shall any mandatory minimum punishment provisions apply . . .

MCM, Part IV, ¶4.e.

Writing for the court, Senior Judge Palmer explains that the statute prevails and the mandatory minimum applies:

we cannot effect a Presidential directive which “clearly contradicts the express language of the Code,” even if it purports to “unambiguously give[] an accused greater rights than those conveyed by higher sources[.]” United States v. Davis, 47 M.J. 484, 486 (C.A.A.F. 1998). Indeed, the Rules for Courts-Martial acknowledge that a Congressional statute imposing a mandatory minimum must prevail, even if it precludes a court-martial from adjudging a lesser punishment to the benefit of the accused. See RULE FOR COURTS-MARTIAL 1002, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.) (“[E]xcept when a mandatory minimum sentence is prescribed by the code, a court-martial may adjudge any punishment authorized in this Manual”) (emphasis added).

Here, the appellant pleaded guilty to a specification of attempted sexual assault of a child, Article 120b(b), UCMJ, in violation of Article 80, UCMJ. Congress unambiguously provided in Article 56(b), UCMJ, that punishment adjudged for this offense “must include, at a minimum . . . [a] dishonorable discharge.” Article 56(b), UCMJ, is coherent within a statutory scheme (including Articles 18 and 56(a), UCMJ) that generally allows the President to set limits on punishment. But Congress’s specific mandatory minimum punishment statute prevails over statutes allowing the President to generally limit minimum punishment. We find the President’s statement in MCM, Part IV, ¶4.e, that no “mandatory minimum punishment provisions apply” to Article 80, UCMJ, clearly contradicts Article 56(b), UCMJ, for attempted sexual assault of a child (among other offenses). Thus, we conclude the mandatory dishonorable discharge term, as set forth by Congress, applies to the appellant.

Slip op. at 5-6 (marks in original).

In an unpublished decision in United States v. Ahern, No. 20130822 (A. Ct. Crim. App. Aug. 24, 2016) (link to slip op.), a three-judge panel of the Army CCA interprets Mil. R. Evid. 304(a)(2) which states:

Failure to deny an accusation of wrongdoing is not an admission of the truth of the accusation if at the time of the alleged failure the person was under investigation or was in confinement, arrest, or custody for the alleged wrongdoing.

At issue is the trial counsel’s closing argument that the appellant’s failure to deny sexual abuse of his step-daughter during a pretext phone call with the child’s mother was “because he is guilty.” This issue sparked a lot of discussion when I noted the CCA’s oral argument of the case in this TWIMJ post.

The CCA ultimately affirms the appellant’s child sex assault (and similar offense) convictions because the child’s mother “testified that appellant had repeatedly admitted to having sex with [the child],” the child herself gave “detailed testimony about his misconduct,” the appellant was not silent but rather called the mother’s allegations crazy, and “the same conversations that government counsel argued were evidence of guilt [] were argued by appellant as evidence of his innocence.” Slip op. at 3.

But before reaching that conclusion the CCA makes a first-impression interpretation of Mil. R. Evid. 304(a)(2) and concludes that:

Mil. R. Evid. 304(a)(2) is triggered by an investigation when the accused is aware of the investigation. Whether an accused is aware of an investigation should be determined using the same objective test as is used in the Article 31(b) context. Jones, 73 M.J. at 362 [(CAAFlog case page)].

Slip op. at 11.

The CCA’s analysis is reproduced after the break.

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Articles 120(b)(3)(A) and 120(d) prohibit sexual activity with a person who is incapable of consenting due to impairment by any drug, intoxicant, or other similar substance.

In recent decision in United States v. Newlan, No. 201400409 (N.M. Ct. Crim. App. Sep. 13, 2016) (link to slip op.), a three-judge panel of the NMCCA finds that a military judge erred when he defined impairment under Article 120 as:

“Impaired” means any intoxication which is sufficient to impair the rational and full exercise of the mental or physical faculties.

Slip op. at 8 (quoting instructions). This definition was drawn from language in the Manual for Courts-Martial that defines impairment under Article 111 (drunken or reckless operation of vehicle, aircraft, or vessel). See MCM, Part IV, ¶ 35.c.(6).

Writing for the panel, Judge Rugh explains that:

Article 120(b)(3)(A), UCMJ, does not prohibit engaging in sexual acts with a person who is drunk or impaired by alcohol. Put more plainly, mere impairment is no more the standard under Article 120(b)(3)(A), UCMJ, than the SAPR-perpetuated “one drink and you can’t consent” axiom is the standard. And litigants and military judges who fixate solely on the term “impairment” do so at their peril.

Instead, the statute establishes a required level of impairment. In other words, sexual acts are prohibited only when the person’s impairment rises to the level of rendering him or her “incapable of consenting to the sexual act.” Art. 120(b)(3)(A), UCMJ.

Slip op. at 10 (emphasis in original). By appropriating the Article 111 definition of impaired, “the military judge’s instructions failed to provide the members with an accurate, complete, and intelligible statement of the law.” Slip op. at 12.

The opinion is the latest in a number of recent decisions that reach the blindingly-obvious conclusion that intoxicated or otherwise impaired people can legally consent, despite popular misconceptions to the contrary (see our #9 military justice story of 2015).

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