CAAFlog » Courts of Criminal Appeals » CCA Opinions

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

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

Read more »

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

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

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

Writing for the panel, Judge Speranza explains:

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

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

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

Slip op. at 8.

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

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

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

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

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

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

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

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

Read more »

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

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

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

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

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

Read more »

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

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

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

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

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

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

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

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

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

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

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

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

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

Read more »

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

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

Read more »

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

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

Ultimately, the CCA concludes that:

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

Slip op. at 9.

Read more »

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

The catch?

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

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

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

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

The implication?

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

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

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

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

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

Slip op. at 14.

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

Read more »

With a published opinion in United States v. Leal, __ M.J. __, No. 24949 (C.G. Ct. Crim. App. Oct. 19, 2017) (link to slip op.), the Coast Guard CCA reverses a conviction of abusive sexual contact and dismisses the specification, finding that it fails to state an offense because the specification does not allege touching of a body part. Chief Judge McClelland writes:

The specification of which Appellant was found guilty alleges that Appellant committed sexual contact upon NP, “to wit: pulled down the shorts and underwear of [NP] with his hands, exposing [NP]’s buttocks, when the accused knew or reasonably should have known that [she] was asleep.”

Article 120(g)(2) defines sexual contact, in relevant part, as “(A) touching . . ., either directly or through the clothing, the . . . buttocks of any person,” with a certain intent; or “(B) any touching . . ., either directly or through the clothing, any body part of any person,” if done with a certain intent.

The specification in this case does not allege the touching of the buttocks or any other body part of NP. While it may seem impossible to pull down a person’s shorts and underwear without touching a body part at least through the shorts and underwear, the specification does not allege any touching. That the buttocks are alleged to have been exposed does not change the fact that no touching is alleged.

Slip op. at 2.

The opinion is short because at trial, “after the Government presented its case, Appellant moved to dismiss the specification for failure to state an offense.” Slip op. at 3. The military judge denied the motion, and Chief Judge McClelland explains that “the remedy for this erroneously denied motion to dismiss is dismissal.” Slip op. at 3 (quoting United States v. Fosler, 70 M.J. 225, 233 (C.A.A.F. 2011)).

Leal was only convicted of the single specification of abusive sexual contact. The CCA concludes:

We have reviewed the record in accordance with Article 66, UCMJ. Upon such review, the findings of guilty of the charge and specification are set aside and the charge and specification are dismissed. A new trial may be ordered upon a different specification.

Slip op. at 3 (emphasis added). Double jeopardy problems? Nope. Jeopardy is based on the offense. Since the specification failed to state an offense, there was no jeopardy.

One day after CAAF granted review of the same issue in a different case, the NMCCA reconsiders its decision in United States v. Motsenbocker, No. 201600285 (original decision discussed here) (link to op. on recon) and holds that the failure to object to improper argument merely forfeits any error.

Senior Judge Hutchinson again writes for the panel:

[U]pon reconsideration, we conclude Ahern is distinguishable from the case at bar and does not mandate the application of waiver. Instead, we adhere to the longstanding precedent reaffirmed in Pabelona, Fletcher, and Diffoott and apply a plain error analysis to those allegations of improper argument not preserved by objection.

United States v. Motsenbocker, No. 201600285, slip op. at 5 (N.M. Ct. Crim. App. Oct 17, 2017) (op. on recon.) (link to slip op.). The opinion distinguishes Ahern for two reasons:

First, Ahern was not a case that involved allegations of improper argument under R.C.M. 919(c); rather, it dealt specifically with waiver as it applied to MIL. R. EVID. 304. As such, the defense counsel in Ahern had numerous opportunities to object to the admission of the evidence at issue both before and during the trial. Ahern, 76 M.J. at 198. Yet, Ahern’s defense counsel did not contest a government motion in limine to admit the evidence, and later affirmatively stated he had no objection to the admission of that evidence. Id.

Second, the CAAF decided Ahern less than three months after deciding Pabelona, but did not cite or otherwise reference Pabelona, much less explicitly discuss any impact of its holding in Ahern on review of allegations of improper arguments—unobjected to at trial. See 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.”) (citation omitted).

Slip op. at 5. I think there are more reasons, but this works.

This decision now leaves the Army CCA as the only federal court to hold that the failure to object to improper argument waives any error. Cf. United States v. Young, 470 U.S. 1, 14 (1985) (applying plain error to claim of improper argument).

Despite a different standard of review, however, the NMCCA still affirms the findings and sentence in Motsenbocker.

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.

Read more »

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).

Read more »

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.

Read more »

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.