CAAFlog » Courts of Criminal Appeals » CCA Opinions

In an unpublished opinion in a prosecution appeal under Article 62, a three-judge panel of the Army CCA finds that “when the government concedes an issue [of law] at trial and the military judge accepts the concession, then the government cannot complain to this court that the military judge erred.” United States v. Suarez, No. 20170366, slip op. at 7 (A. Ct. Crim. App. Sep 27, 2017) (link to slip op.).

At stake is the admission of six images of suspected child pornography discovered on the accused’s cell phone after it was searched pursuant to an authorization. The device was protected by a passcode and the investigators asked the accused for that passcode. So the defense moved to suppress. See, generally, United States v. Mitchell, 76 M.J. 413 (C.A.A.F. Aug. 30, 2017) (CAAFlog case page).

Responding to the defense motion, the prosecutors “conceded in their initial brief to the military judge that the accused’s providing a passcode to a CID agent was testimonial and incriminating.” Slip op. at 4. These were significant concessions, because “in conceding the passcode was incriminating, the government necessarily conceded the request for the incriminating response was an interrogation.” Slip op. at 5. And because it was an interrogation, the questioning implicated the accused’s rights under the 5th Amendment and Article 31(b). So the military judge suppressed the images.

The prosecution appealed, “mak[ing] numerous arguments as to why the military judge erred.” Slip op. at 3.

But the panel doesn’t consider those arguments. Rather, it holds that “the substantive issue of this appeal was waived by the government at trial.” Slip op. at 8.

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Congress created Article 6b in the National Defense Authorization Act for Fiscal Year 2014. As originally enacted, the statute had four sections (paragraphs (a-d)), the first of which outlined eight rights of a victim. The next year, in the National Defense Authorization Act for Fiscal Year 2015, Congress made some technical changes and added a fifth section – paragraph (e) – providing an enforcement mechanism. The following year, in the National Defense Authorization Act for Fiscal Year 2016, Congress expanded that enforcement mechanism, so that it now reads:

(e) Enforcement by Court of Criminal Appeals.

(1) If the victim of an offense under this chapter believes that a preliminary hearing ruling under section 832 of this title (article 32) [10 USCS § 832] or a court-martial ruling violates the rights of the victim afforded by a section (article) or rule specified in paragraph (4), the victim may petition the Court of Criminal Appeals for a writ of mandamus to require the preliminary hearing officer or the court-martial to comply with the section (article) or rule.

(2) If the victim of an offense under this chapter is subject to an order to submit to a deposition, notwithstanding the availability of the victim to testify at the court-martial trying the accused for the offense, the victim may petition the Court of Criminal Appeals for a writ of mandamus to quash such order.

(3) A petition for a writ of mandamus described in this subsection shall be forwarded directly to the Court of Criminal Appeals, by such means as may be prescribed by the President, and, to the extent practicable, shall have priority over all other proceedings before the court.

(4) Paragraph (1) applies with respect to the protections afforded by the following:

(A) This section (article).

(B) Section 832 (article 32) of this title [10 USCS § 832].

(C) Military Rule of Evidence 412, relating to the admission of evidence regarding a victim’s sexual background.

(D) Military Rule of Evidence 513, relating to the psychotherapist-patient privilege.

(E) Military Rule of Evidence 514, relating to the victim advocate-victim privilege.

(F) Military Rule of Evidence 615, relating to the exclusion of witnesses.

10 U.S.C. 806b(e).

This is a limited grant of authority that gives only a CCA – and not CAAF – jurisdiction over victim petitions. See Randolph v. HV and United States, 76 M.J. 27 (C.A.A.F. Feb. 2, 2017) (CAAFlog case page).

A three-judge panel of the Army CCA recently rejected a petition that went way beyond the limits of Article 6b(e).

In AG v. Hargis, Military Judge, __ M.J. __, No. 20170417 (A. Ct. Crim. App. Aug. 16, 2017) (link to slip op.), Judge Fleming writes for the panel and holds that:

petitioner, an alleged sexual assault victim, fails to establish that a referred court-martial, or even preferred charges, existed at the time of the military judge’s decision to take no action on a special victim counsel’s [hereinafter SVC] discovery and production request. We further hold the military judge did not err by advising the military magistrate to deny the SVC’s discovery request or by not acting on the SVC request, which created a de facto ruling denying the SVC’s discovery and production request. We, therefore, dismiss the petition for lack of jurisdiction.

Slip op. at 1 (marks in original).

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In Lewis v. United States, __ M.J. __, No. 2017-05 (A.F. Ct. Crim. App. Sep. 20, 2017) (link to slip op.), Senior Judge Johnson writes for a three-judge panel of the Air Force CCA and denies a petition for extraordinary relief in the nature of a writ of coram nobis.

The petition is based on CAAF’s decision in 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 under Mil. R. Evid. 413. The petitioner was convicted of numerous sexual offenses at a general court-martial during which the military judge allowed charged offenses to be used for propensity purposes, and the Air Force CCA affirmed the convictions in 2014. United States v. Lewis, No. 38321 (A.F. Ct. Crim. App. 9 Oct. 2014) (link to slip op.), pet. denied, 74 M.J. 263 (C.A.A.F. 2015). The extraordinary relief petition seeks retroactive application of Hills to the case.

The approved sentence, however, included confinement for nine years and the petitioner is still confined, creating a significant hurdle to coram nobis relief. There are six threshold requirements for a coram nobis petition:

(1) the alleged error is of the most fundamental character;

(2) no remedy other than coram nobis is available to rectify the consequences of the error;

(3) valid reasons exist for not seeking relief earlier;

(4) the new information presented in the petition could not have been discovered through the exercise of reasonable diligence prior to the original judgment;

(5) the writ does not seek to reevaluate previously considered evidence or legal issues; and

(6) the sentence has been served, but the consequences of the erroneous conviction persist.

Slip op. at 4-5 (citing United States v. Denedo, 66 M.J. at 113, 126 (C.A.A.F. 2008), aff’d, 556 U.S. 904 (2009)) (paragraphing added). Senior Judge Johnson explains that the second and sixth requirements aren’t satisfied in this case:

Petitioner remains in confinement; therefore, coram nobis is not the sole remedy available to him because he is eligible to seek a writ of habeas corpus from a federal district court. Similarly, Petitioner has failed to demonstrate his sentence to nine years of confinement has been served.

Slip op. at 5.

But Senior Judge Johnson also considers the underlying error, concluding that the “petition would fail on the issue of retroactive application of Hills.” Slip op. at 6.

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In United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003), the appellant was charged with wrongful use of ecstasy of divers occasions, but was convicted by exceptions and substitutions of wrongful use on only one occasion. But the members did not specify which occasion formed the basis for the conviction. CAAF determined that this created an ambiguous finding.

The NMCCA faced a similar issue in United States v. Tinsley, No. 201600083 (N-M. Ct. Crim. App. Jul. 6, 2017) (link to slip op.). Sergeant (E-5) Tinsley was charged with numerous offenses including larceny of “33 pieces of working dog gear from the United States on divers occasions between 25 January 2013 and 30 June 2014.” Slip op. at 8. Those items included “two kennels.” Slip op. at 8 n.10. The members, however, convicted Tinsley of larceny of only one kennel, and they didn’t specify which of the two kennels was stolen. So, on appeal:

The appellant argues the members’ substitution of “one kennel” and lack of clarification from the military judge regarding whether he was convicted of stealing the kennel found at his residence or the kennel found in his in-laws’ home violates double jeopardy principles, renders impossible our ability to determine which kennel the appellant was convicted of stealing, and precludes our ability to conduct a factual sufficiency review regarding that specific language in Specification 1 of the Charge.

Slip op. at 8. The majority of a three-judge panel disagrees. Writing for the majority, Chief Judge Glaser-Allen rejects application of Walters (finding that it only applies in cases where divers occasions is narrowed to one occasion) and also finds that:

That the members excepted “two kennels” while substituting “one kennel” is of little concern given the facts of this case and the nature of a general verdict, because the members still convicted the appellant of stealing multiple items on divers occasions (between 25 January 2013 and 30 June 2014) in the specification. An acquittal of an offense is not a general repudiation of all the underlying facts related to that offense. Because we find there was enough evidence to sustain convictions to either kennel, we are unconvinced this case requires “greater specificity in the findings . . . to determine which act survives the verdict for appellate review.” Thus, we are satisfied that jeopardy attached for the entire charged time period and the exception and substitution from “two kennels” to “one kennel” does not render the verdict ambiguous.

Slip op. at 9.

Senior Judge Marks dissents from this part of the decision, and believes that the findings regarding the kennel are ambiguous, because “the distinction between ‘occasion’ or ‘incident’ in Walters and ‘kennel’ in this case is semantics.” Slip op. at 12. Senior Judge Marks would set aside the conviction of larceny of the kennel but otherwise approve the findings and sentence.

I didn’t cover it at the time, but back in March a three-judge panel of the Army CCA published a significant opinion about unsworn statements in United States v. Martinez, 76 M.J. 541 (A. Ct. Crim. App. Mar. 13, 2017), rev. denied. 76 M.J. __ (C.A.A.F. Jun. 22, 2017) (link to slip op.).

Unsworn statements are a unique feature of military law. “The right of an accused to make an unsworn statement is long-standing, predating adoption of the UCMJ. Among other things, the unsworn statement is an opportunity for an accused to bring information to the attention of the members or a military judge, including matters in extenuation, mitigation, and rebuttal, without ordinary evidentiary constraints.” United States v. Johnson, 62 M.J. 31, 37 (C.A.A.F. 2005) (citing United States v. Grill, 48 M.J. 131 (C.A.A.F. 1998)).

An unsworn statement, however, “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)). See also United States v. Provost, 32 M.J. 98, 99 (C.M.A. 1991) (quoting W. Winthrop, Military Law and Precedents at 300 (2d ed.1920 reprint) (It must be remembered that, if an accused elects to make an unsworn statement, he is not offering evidence)); United States v. Briggs, 69 M.J. 648, 651 (A.F. Ct. Crim. App. 2010), rev. denied, 69 M.J. 177 (C.A.A.F. 2010) (“an unsworn statement. . . is not evidence”).

As Winthrop explained:

the statement is not evidence but a personal declaration or defen[s]e, and cannot legally be acted upon as evidence either by the court or reviewing authority. Nor can it be a vehicle of evidence, or properly embrace documents or other writings, or even averments of material facts, which, if duly introduced, would be evidence; and if such are embraced in it, they are no more evidence than any other part.

W. Winthrop, Military Law and Precedents at 300.

In Martinez, the accused pleaded guilty and stipulated to the relevant facts of his offenses. Then:

At the conclusion of the defense’s sentencing case, the defense attorney informed the military judge that appellant would be making an unsworn statement which would come in two parts. One part would be an oral statement from appellant. The other part would be given by counsel. Counsel’s statement, however, consisted of reading a letter from appellant’s pastor into the record.

Slip op. at 2. The prosecution objected to reading the letter as part of the unsworn statement, the military judge sustained the objection, and the Army CCA affirmed.

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Back in 2013, in this post, I discussed a pair of Marine Corps cases involving guilty pleas with pretrial agreements that promised deferment and waiver of forfeitures of pay even though the service members’ enlistments were already over (meaning that once they were placed into post-trial confinement there was no pay due to forfeit, and so no forfeitures to defer or waive).

Forfeitures (whether adjudged by a court-martial or imposed automatically under Article 58b) begin 14 days after a court-martial. Deferment postpones them until the convening authority acts. Adjudged forfeitures may then be suspended or disapproved outright, but automatic forfeitures may only be waived for a maximum of six months (and only for the benefit of a service member’s dependents). Six months after a convening authority acts, however, automatic forfeitures (if applicable) must begin. This “reflects congressional concern ‘that some military service members continued to receive active duty pay and allowances while serving extended prison sentences,'” while “[a]t the same time, in recognition of the hardship that mandatory forfeitures might work on dependents, Congress included discretionary authority ‘to provide transitional compensation for the dependents of the accused.'” United States v. Emminizer, 56 M.J. 441, 443 (C.A.A.F. 2002) (marks and citations omitted).

The NMCCA reversed the guilty pleas in those two cases back in 2013 because it found that the forfeiture and waiver provisions were important terms that made the underlying pleas improvident because the appellants’ dependents did not receive any money since the appellants’ enlistments were over (both enlistments ended prior to the pleas, in fact).

Last week the NMCCA reversed yet another guilty plea because of confusion about forfeitures, but this time it’s even worse. Pursuant to a pretrial agreement, the convening authority “waived automatic forfeitures for the remainder of the appellant’s enlistment, which was a period greater than six months.” United States v. Miceli, No. 201700062, slip op. at 2 (N.M. Ct. Crim. App. Aug. 31, 2017) (link to slip op.). But while the military judge failed to catch this forbidden term in the pretrial agreement, the CCA finds that:

The fault does not lie with the military judge alone, however. The record demonstrates that the appellant, the trial defense counsel, the trial counsel, the staff judge advocate, and the CA all failed to recognize the CA’s inability to waive automatic forfeitures for a period extending beyond six months, as set forth in Article 58b, UCMJ.

Slip op. at 4. Actually it’s worse, as the opinion explains that:

After the case was submitted without assignment of error, we specified two issues [related to the waiver term].

Slip op. at 2 (emphasis added). So at least five judge advocates – military judge, SJA to a general court-martial convening authority, trial counsel, defense counsel, and appellate defense counsel – didn’t realize that the pretrial agreement contained, and the convening authority purported to grant, a forbidden waiver of forfeitures in excess of six months. Yikes!

The CCA, however, comes to the rescue. Six months and 23 days after the convening authority took action, the CCA reverses the guilty plea and authorizes a rehearing. And now, since the appellant’s “enlistment is projected to end on 17 March 2018,” Slip op. at 5, a convening authority will have the power to defer and waive forfeitures right up to the end.

In United States v. Bruno, No. 2017-03 (A.F. Ct. Crim. App. Aug. 23, 2017) (link to slip op.), a three-judge panel of the Air Force CCA reverses a military judge’s ruling suppressing the results of a urinalysis, agreeing with the prosecution that:

Appellee’s second urinalysis was taken in accordance with a standing inspection order issued by the installation commander and minor deviations in the execution of the policy did not mandate suppression.

Slip op. at 2.

The accused – Second Lieutenant (O-1) Bruno – tested positive for methamphetamine on a random urinalysis, and then tested positive a second time on a follow-up urinalysis. The military judge suppressed the results of the second urinalysis after finding that it was the product of an interrogation by AFOSI (that was also suppressed). But the CCA finds that the second urinalysis was the product of a standing order that required follow-up urinalysis any time a member tests positive on a random urinalysis (a Bickel policy, named after United States v. Bickel, 30 M.J. 277, 287 (C.M.A. 1990), in which the court observed that “it was quite rational for Bickel’s company commander to determine whether any member of his unit who had tested positive on one occasion–and so was indicated by the test to be unfit for military duty–had corrected his substandard condition”).

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In United States v. Swift, 76 M.J. 210, (C.A.A.F. Apr. 26, 2017) (CAAFlog case page), a unanimous CAAF found that the Army CCA improperly based its review on uncharged conduct. Writing the court, Judge Ryan explained that:

The CCA simply may not substitute uncharged for charged conduct as either the basis for a conviction or the basis for affirming a finding of guilty under Article 66(c), and its review was legally infirm.

76 M.J. at 217.

The CCA conducted a new review. United States v. Swift, No. 20100196 (A. Ct. Crim. App. Aug. 29, 2017) (link to slip op.). Finding that the uncharged misconduct was properly admitted under both Mil. R. Evid. 404(b) and Mil. R. Evid. 414 – findings not made in the first decision – the CCA again affirms the findings and sentence.

Adopting the Army CCA’s tortured reasoning from United States v. Kelly, __ M.J. __, No. 20150725 (A. Ct. Crim. App. Jul. 5, 2017) (discussed here), and ignoring a library of contrary precedent, an unpublished decision by a three-judge panel of the NMCCA agrees that the failure to object to improper closing argument before the military judge begins to instruct the members waives any error.

The government avers that Ahern applies to RULE FOR COURTS-MARTIAL (R.C.M.) 919(c), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2016 ed.), which states, “[f]ailure to object to improper argument before the military judge begins to instruct the members on findings shall constitute waiver of the objection.” Analyzing R.C.M. 919(c), in light of Ahern, our sister court came to the same conclusion. Finding that the “plain language of the rule, and our superior court’s decision in Ahern” compelled their result, the Army Court of Criminal Appeals held that the failure to object to government counsel’s closing argument constituted waiver, leaving nothing to review on appeal. United States v. Kelly, No. 20150725, 2017 CCA LEXIS 453, at *9 (A. Ct. Crim. App. 5 Jul 2017). We agree. Like MIL. R. EVID. 304, R.C.M. 919(c) provides no provision for plain error review, and therefore, when a defense counsel fails to object to improper argument of government counsel, the defense waives the issue on appeal. We recognize that this conclusion differs from recent cases where CAAF has tested improper arguments for plain error. See, e.g., Pabelona, 76 M.J. at 11 (“Because defense counsel failed to object to the arguments at the time of trial, we review for plain error.”). However, “[t]o the extent we are presented with contrary case law, we follow our superior court’s most recent decision.” Kelly, 2017 CCA LEXIS 453, at *9.

United States v. Motsenbocker, No. 201600285, slip op. at 17-18 (N-M. Ct. Crim. App. Aug 10, 2017) (emphasis added) (link to slip op.). The decision is written by Senior Judge Hutchinson, with Judge Fulton concurring. Senior Judge Campbell dissents, primarily for a different reason but with a comment that suggests dissent on the finding of waiver as well (“even if the appellant waived the improper argument . . . issue as the lead opinion suggests. . .” Slip op. at 40 (emphasis added)).

The notion that CAAF’s opinion in United States v. Ahern, 76 M.J. 194 (C.A.A.F. Apr. 20, 2017) (CAAFlog case page), surreptitiously overruled its longstanding and unambiguous interpretation of R.C.M. 919(c), is particularly troubling.

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The unpublished opinion on reconsideration of a three-judge panel of the Army CCA in United States v. Sanchez, No. 20140735 (A. Ct. Crim. App. Jul. 17, 2017) (link to slip op.), involves charged offenses used to prove propensity to commit other charged offenses in a trial before a military judge alone.

CAAF explained that charged offenses may not be used this way in the Army case of United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page) (our #3 Military Justice Story of 2016). The Army CCA had endorsed the practice a year earlier and CAAF had denied review. 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). The Army CCA’s decision in Hills was based on that earlier decision in Barnes, and CAAF’s reversal of Hills was a belated reversal of Barnes. The Army CCA then found Hills to be inapplicable to judge-alone trials, but CAAF reversed that opinion too. United States v. Hukill, No. 20140939 (A. Ct. Crim. App. Aug. 16, 2016) (discussed here), reversed, 76 M.J. 219 (C.A.A.F. May. 2, 2017) (CAAFlog case page).

Staff Sergeant (E-6) Sanchez, however, was tried by a court-martial composed of a military judge alone way back in 2014, before the Army CCA decided Barnes and at a time when the appropriateness of using charged offenses for propensity purposes was unsettled. Or, perhaps, not so unsettled.

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With a published opinion in United States v. Leonhardt, __ M.J. __, No. 39014 (A.F. Ct. Crim. App. Aug. 16, 2017) (link to slip op.), a three-judge panel of the Air Force CCA reverses the appellant’s convictions of sexual assault and abusive sexual contact because the military judge applied an improper burden of proof on the defense for the introduction of evidence bearing on the alleged victim’s credibility.

The charges again Second Lieutenant (O-1) Leonhardt arose out of a sexual encounter with a fellow cadet at the Air Force Academy. Leonhardt’s defense wanted to introduce evidence that after the alleged assault, Leonhardt and the alleged victim:

had consensual sex . . . at least twice in his room . . . within approximately a week and a half of the alleged assaults, that he told three other lieutenants about these encounters, and that one of these individuals also saw [the alleged victim] in Appellant’s room during this time frame.

Slip op. at 4. Leonhardt testified to these facts in a pretrial hearing. The alleged victim also testified in the hearing, but she denied any subsequent sexual contact.

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A three-judge panel faced a difficult situation in United States v. Wiredu, No. 201600243 (N-M. Ct. Crim. App. Aug. 17, 2017) (link to slip op.). Personnel Specialist Second Class (E-5) Wiredu was convicted of sexual assault based on an encounter with a woman he had just met. But Wiredu was also charged with sexual offenses involving two other, otherwise-unrelated, women. At trial the prosecution was allowed to use (over a defense objection) the three allegations as evidence of Wiredu’s propensity to commit the allegations, and the military judge so instructed the members (also over objection). The members then convicted Wiredu of assaulting one of the three alleged victims.

The prosecution’s tactic is prohibited by Mil. R. Evid. 413 and the military judge’s instructions denied Wiredu due process. See United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016) (CAAFlog case page) (our #3 Military Justice Story of 2016). So the CCA finds error.

Nevertheless, the CCA concludes that Wiredu is guilty. Writing for the panel Judge Rugh explains that:

After weighing all the evidence in the record of trial and recognizing that we did not see or hear the witnesses, we are convinced of the appellant’s guilt beyond reasonable doubt.

Slip op. at 2.

But that’s not the end of the opinion.

Because the error implicates a constitutional protection, reversal is required unless the error is harmless beyond a reasonable doubt (meaning that there must be no reasonable probability that the error might have contributed to the conviction). Put differently, even though the panel is personally convinced of Wiredu’s guilt beyond a reasonable doubt, it still has to answer the altogether different question of whether it is similarly convinced that the members’ decision was not influenced by the improper propensity evidence.

It’s not so convinced.

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With a published opinion in United States v. Hardy, __ M.J. __, No. 38937 (A.F. Ct. Crim. App. Jun. 22, 2017) (link to slip op.), a three-judge panel of the Air Force CCA finds that the appellant’s guilty pleas waived his claim that his convictions of various offenses related to sexual contact with a minor are an unreasonable multiplication of charges.

“[T]he prohibition against unreasonable multiplication of charges addresses those features of military law that increase the potential for overreaching in the exercise of prosecutorial discretion.” 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)). Unreasonable multiplication of charges is different from multiplicity, which “is necessary to ensure compliance with the constitutional and statutory restrictions against Double Jeopardy.” Ibid.

In the Air Force case of United States v. Gladue, 67 M.J. 311 (C.A.A.F. 2009) (discussed here), CAAF split 3-2 to find that a pretrial agreement provision to waive all waivable motions served as a waiver – rather than forfeiture – of any objection to both multiplicity and unreasonable multiplication of charges. Writing for the majority, Judge Stucky explained that:

Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.  The distinction between the terms is important. If an appellant has forfeited a right by failing to raise it at trial, we review for plain error. When, on the other hand, an appellant intentionally waives a known right at trial, it is extinguished and may not be raised on appeal.

71 M.J. at 313 (marks and citations omitted). The minority concurred in the result (finding neither multiplicity nor unreasonable multiplication), because:

“Although Appellant expressly waived all waivable motions, the military judge delimited that waiver by cataloguing the specific motions and issues waived. This catalogue did not include multiplicity or an unreasonable multiplication of charges. . .”

67 M.J. at 314. This analysis included the observation that:

[A]n accused cannot silently waive appellate review of plain error.


Gladue strongly suggested – but did not explicitly state – that a guilty plea alone does not waive a claim to an unreasonable multiplication of charges (because if the plea alone was a waiver, then the pretrial agreement waiver provision interpreted by the court was mere surplusage). But in Hardy the Air Force court reaches the opposite conclusion.

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On May 20, 2016, the President signed Executive Order 13,730 (discussed here) that amended Mil. R. Evid. 311 to limit application of the exclusionary rule in the case of an unlawful search or seizure, requiring a balancing that weighs the deterrent effect of exclusion.

The prior (and longstanding) rule stated that “evidence obtained as a result of an unlawful search or seizure made by a person acting in a governmental capacity is inadmissible against the accused” if the accused (1) makes a timely objection and (2) has an adequate privacy interest. Mil. R. Evid. 311(a) (2015). The new (current) rule adds a third requirement:

exclusion of the evidence results in appreciable deterrence of future unlawful searches or seizures and the benefits of such deterrence outweigh the costs to the justice system.

Mil. R. Evid. 311(a)(3) (2016).

In United States v. Mottino, No. 201700153 (N-M. Ct. Crim. App. Jul. 27, 2017) (link to slip op.), a three-judge panel of the Navy-Marine Corps CCA grants a prosecution appeal and reverses a military judge’s ruling suppressing evidence because:

the military judge’s findings of fact are not clearly erroneous, but that her analysis and application of the law do not include the balancing test required under MIL. R. EVID. 311(a)(3).

Slip op. at 2.

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The Army CCA’s published en banc opinion in United States v. Kelly, __ M.J. __, No. 20150725 (A. Ct. Crim. App. Jul. 5, 2017) (link to slip op.), is notable for a number of reasons. The case involves a claim of ineffectiveness of counsel based on the defense counsel foregoing any peremptory challenge in pursuit of a certain number of members (a strategy known as the numbers game), the members repeatedly asked questions about uncharged adultery after the military judge instructed them to disregard it, and a split en banc court concludes that it has no authority to set aside a mandatory minimum dismissal or dishonorable discharge for a sexual offense required by Article 56.

But the CCA also finds that the failure of defense counsel to object to improper prosecution closing argument waived – rather than forfeited – any error.

Kelly is one of a number of recent cases in which the Army CCA reaches the same remarkable conclusion. See United States v. Burris, No. 20150047 (A. Ct. Crim. App. Jul. 28, 2017) (link to slip op.); United States v. Sanchez, No. 20140735 (A. Ct. Crim. App. Jul. 17, 2017) (link to slip op.); United States v. Marcum, No. 20150500 (A. Ct. Crim. App. May 5, 2017) (link to slip op.). The CCA also reached the same conclusion for improper sentencing argument in United States v. Hoffman, __ M.J. __, No. 20140172 (A. Ct. Crim. App. Jun. 27, 2017) (link to slip op.).

Errors are preserved by timely objections, and an appellant is entitled to relief from a preserved error (unless it is harmless). Waiver of an error means that there is no error to correct on appeal and an appellant is not entitled to any relief (though a CCA may, nevertheless, grant relief). But waiver is the intentional relinquishment or abandonment of a known right. The mere failure to make a timely objection, however, usually forfeits any error, and an appellant is entitled to relief from a forfeited error upon showing that the error was plain, obvious, and prejudicial (the plain error test).

The Army CCA’s conclusion in Kelly that failure to object to improper closing argument waives – rather than merely forfeits – the error is remarkable because CAAF’s precedent (and the CCA’s own practice) clearly state the opposite. Writing for the en banc CCA, Judge Wolfe finds that:

R.C.M. 919(c) governs argument on findings. The rule states: “[f]ailure to object to improper argument before the military judge begins to instruct the members on findings shall constitute waiver of the objection.” R.C.M. 919(c). The rule has no “plain error” condition.

Kelly, __ M.J. at __, slip op. at 6. CAAF, however, has long held that:

Despite the language of “waiver” in RCM 919(c), Manual for Courts-Martial, United States (1995 ed.), we have repeatedly held that where there is no defense objection to the prosecution’s argument, we review for plain error. See United States v. Carpenter, 51 MJ 393, 396 (1999); United States v. Sweeney, 48 MJ 117, 121 (1998); cf. United States v. Causey, 37 MJ 308, 312 (CMA 1993) (Sullivan, J., concurring).

United States v. Diffoot, 54 M.J. 149, 151 n.1 (C.A.A.F. 2000). Judge Wolfe’s opinion in Kelly does not acknowledge (or even cite) CAAF’s decision in Diffoot.

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