Army Sergeant First Class (E-7) Commisso was a somewhat unsympathetic appellant. In 2013 he became romantically – or, perhaps, unromantically – involved with a Marine Private First Class (E-2) he met while undergoing physical therapy. His case had many of the hallmarks of a modern politicized military sexual assault prosecution: rank disparity, a he-said/she-said allegation, and even distribution of revealing photos of the alleged victim.
Before the case was tried in 2014, the allegations were repeatedly briefed during monthly meetings of a local Sexual Assault Review Board (SARB). CAAF described the purpose of the SARB as “to ensure that sexual assault victims received their legal entitlements throughout the court-martial process,” and the court observed that the “briefings contained only the putative victim’s version of the alleged criminal acts.” 76 M.J. at 319. Three SARB participants were selected to be part of the ten-member general court-martial panel that heard Commisso’s case, and they remained on the panel when it convicted Commisso of numerous offenses and sentenced him to confinement for one year, reduction to E-1, and a bad-conduct discharge.
That those three members were selected for, and remained part of, the panel after such one-sided exposure to the allegations was troubling in its own right, but there was something worse. The three members (two Colonels and a Lieutenant Colonel) concealed their involvement in the SARB and their prior knowledge of the case until after the trial was over.
This week at SCOTUS: On September 28, 2017, the Supreme Court granted certiorari in Dalmazzi v. United States, No. 16-961, Cox, et al., v. United States, No. 16-1017, and Ortiz v. United States, No. 16-1423, consolidating the cases and directing additional briefing on whether the Court has jurisdiction over those where CAAF vacated its grant of review. They are the first military cases to be granted cert. since United States v. Denedo, 556 U.S. 904 (2009). Our coverage of these cases will continue under the heading of Dalmazzi v. United States, No. 16-961 (CAAFlog case page) (SCOTUSblog case page).
In other SCOTUS news, the cert. petitions in Abdirahman, et at., and Alexander were distributed for conference on Oct. 13. Additionally, an extension of time to file a cert. petition was granted in Richards v. United States, No. 17A338, until November 10, 2017. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking six cases:
- Dalmazzi v. United States, No. 16-961 (cert granted Sep. 28) (CAAFlog case page) (SCOTUSblog case page)
- Alexander v. United States, No. 16-9536 (dist. for conf. on Oct. 13)
- Tso v. United States, No. 17A40 (ext. of time to file granted to Sep. 29)
- Bartee v. United States, No. 17-175 (resp. requested, due Oct. 30)
- Abdirahman, et al. v. United States, No. 17-206 (dist. for conf. on Oct. 13)
- Richards v. United States, No. 17A338 (ext. of time to file granted to Nov. 10)
This week at CAAF: The next scheduled oral argument at CAAF is on October 10, 2017.
This week at the ACCA: The Army CCA’s website shows no scheduled oral arguments.
This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on October 24, 2017. The argument will be heard at the Florida International University College of Law.
This week at the CGCCA: The Coast Guard CCA has a new website, but the link to its docket doesn’t work.
This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.
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.
Opinion Analysis: A custodial interrogation without the benefit of requested counsel endangered the Fifth Amendment privilege against self-incrimination in United States v. Mitchell, No. 17-0153/AR
CAAF decided the certified interlocutory Army case of United States v. Mitchell, 76 M.J. 413,No. 17-0153/AR (CAAFlog case page) (link to slip op.), on August 30, 2017. Because continued questioning of a suspect after he invokes his right to counsel violates the Fifth Amendment, CAAF finds that the contents of a cell phone must be suppressed because military investigators requested the passcode to decrypt the phone after the suspect requested an attorney. The phone itself, however, need not be suppressed. CAAF affirms (in part) the decision of the Army CCA and of the military judge suppressing the contents of the phone.
Chief Judge Stucky writes for the court joined by all but Judge Ryan, who dissents.
Sergeant (E-5) Mitchell is charged with various offenses at a general court-martial. The prosecution wants to use evidence obtained from Mitchell’s cell phone. But the military judge suppressed the contents of the phone (and the phone itself) because military investigators continued to question Mitchell after he requested an attorney. The investigators had a search authorization for the phone, and had asked Mitchell for the passcode to the device. Mitchell (after requesting counsel) refused to tell them the passcode, but he entered the code into the phone and then entered it two more times to permanently disable the security features for the investigators. The prosecution appealed the suppression ruling under Article 62, the Army Court of Criminal Appeals affirmed the military judge’s ruling, and the Judge Advocate General of the Army certified three issues to CAAF:
I. Whether the Fifth Amendment’s self-incrimination clause is violated when a suspect voluntarily unlocks his phone without giving his personal identification number to investigators.
II. Whether the Edwards rule is violated when investigators ask a suspect, who has requested counsel and returned to his place of duty, to unlock his phone incident to a valid search authorization.
III. Whether, assuming investigators violated appellant’s Fifth Amendment privilege or the Edwards rule, the military judge erred by suppressing the evidence.
Concluding that “the Government violated [Mitchell’s] Fifth Amendment right to counsel as protected by [Miranda v. Arizona, 384 U.S. 436 (1966)] and [Edwards v. Arizona, 451 U.S. 477 (1981)],” slip op. at 5, Chief Judge Stucky and the majority apply the plain language of Mil. R. Evid. 305(c)(2) (as rewritten in 2013) to suppress the contents of the phone because it is evidence derived from the interrogation after Mitchell requested counsel.
But Judge Ryan dissents because Mitchell merely entered his passcode into the device while he “declined to state or otherwise speak his passcode to the Government. He declined. There is nothing to suppress there.” Diss. op. at 3.
Opinion Analysis: The unit of prosecution for child pornography is the material containing the pornography, even if it is duplicative, in United States v. Forrester, No. 17-0049/MC
CAAF decided the Marine Corps case of United States v. Forrester, 76 M.J. 389, No. 17-0049/MC (CAAFlog case page) (link to slip op.), on Wednesday, August 16, 2017. Considering four separate convictions for possession of child pornography, where all four convictions involved the same contraband images but possessed on four separate electronic devices, a sharply-divided court concludes that the Manual for Courts-Martial creates a separate offense for each separate possession of the contraband, affirming the convictions, the decision of the Navy-Marine Corps CCA, and the approved sentence. The dissenters, however, find that the Manual is not so clear and would resolve the ambiguity in favor of lenity, merging the four convictions into one and remanding for reassessment of the sentence.
Judge Ryan writes for the court, joined by Chief Judge Stucky and Judge Sparks. Judge Ohlson dissents, joined by Senior Judge Erdmann.
Corporal (E-4) Forrester was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of six specifications of wrongful possession of child pornography in violation of Article 134. Forrester was acquitted of five additional specifications of the same offense. He was sentenced to confinement for 40 months, total forfeitures, reduction to E-1, and a dishonorable discharge. The convening authority approved the sentence.
Forrester was originally charged with just seven specifications of wrongful possession of child pornography, but those specifications alleged date ranges beginning before and ending after the effective date of Executive Order 13593 (enumerating a child pornography offense under Article 134). To address this overlap, the military judge split the seven specifications into eleven, separating them into pre- and post-Order time periods. Then, after findings, the military judge merged the six convictions into four, each alleging possession of child pornography on a different electronic device: three external hard drives and a Google email account. The prosecution’s evidence proved that 23 images and one video, copies of which were found on each device, were contraband child pornography.
After findings, Forrester’s defense counsel moved for the four convictions “to be merged into a single specification for purposes of sentencing only,” arguing that the images and time periods were the same and “the only difference is the device on which it was charged.” Slip op. at 4 (quoting record). Forrester’s goal was to be sentenced for one act of wrongful possession, not four. The military judge denied the motion and the NMCCA affirmed, concluding that “each charged possession was a separately punishable transaction.” Slip op. at 5. CAAF then granted review to determine:
Whether punishing the same transaction of obtaining child pornography with four convictions unreasonably exaggerates Appellant’s criminality and triples his punitive exposure, constituting an unreasonable multiplication of charges.
In United States v. Reese, 76 M.J. 297 (C.A.A.F. Jun. 14, 2017) (CAAFlog case page), a unanimous CAAF found no requirement to show prejudice in the case of an objected-to major change (functionally rendering this a structural error), and reversed a conviction of sexual abuse of a child after concluding that the change altered the means of committing the offense and was not fairly included in the original specification. The court also held that a novel Article 134 specification must allege an act or omission that is not already an enumerated Article 134 offense, reversing a conviction of a specification that amounted to obstruction of justice (but omitted an element of that offense).
Reese remained convicted of making false official statements and of wrongful use, possession, or distribution of marijuana, and CAAF remanded the case to the Coast Guard court to reconsider the adjudged sentence. Reese had pleaded guilty to all of those offenses except for one specification of making a false official statement (he contested the charges CAAF reversed), and he was sentenced by a general court-martial composed of a military judge alone to confinement for five years, reduction to E-1, and a dishonorable discharge.
Last week the Coast Guard CCA reassessed the sentence, reducing it dramatically:
We have reviewed the record in accordance with Article 66, UCMJ. Upon such review, the findings of guilty of Charges I and II and their specifications are reaffirmed. A sentence providing for confinement for three months, reduction to E-1, and a bad-conduct discharge is affirmed.
United States v. Reese, No. 1422, slip op. at 3 (C.G. Ct. Crim. App. Jul. 20, 2017) (link to slip op.).
Sometimes such reductions do not result in meaningful relief to the appellant because they come after the confinement has already been served. For Reese, however, the reduction is very meaningful, as he was sentenced in November 2014.
Opinion Analysis: Nine months and an intervening conviction make any search constitutionally unreasonable in United States v. Gurczynski, No. 17-0139/AR
CAAF decided the certified Army case of United States v. Gurczynski, 76 M.J. 381, No. 17-0139/AR (CAAFlog case page) (link to slip op.) on Monday, July 24, 2017. Rejecting a Government interlocutory appeal of a military judge’s ruling suppressing evidence, CAAF finds that the plain view exception to the Fourth Amendment’s warrant requirement does not apply because the underlying search was unreasonable due to the fact that it was based on a warrant issued for offenses of which the appellant was convicted at a different court-martial nine months prior. CAAF affirms the military judge’s suppression ruling and the decision of the Army CCA.
Judge Ryan writes for a unanimous court.
Private (E-1) Gurczynski is charged with two specifications of wrongful possession of child pornography, and the suppressed evidence is the images that are the subject of the specifications. These charges are tangentially related to Gurczynski’s commission of sexual offenses with a child (and other offenses) to which he pleaded guilty in 2014 (CCA op. here). The images were discovered on devices seized from Gurczynski pursuant to a warrant that authorized a search for evidence of communications with the child victim. But that discovery occurred five months after Gurczynski’s guilty pleas, and nine months after the warrant was issued.
The circumstances of the search (including that the searcher did not obtain a new warrant after suspecting the presence of child pornography) led to a motion to suppress that was granted by the military judge. The prosecution appealed but the Army court affirmed. The Judge Advocate General of the Army then certified a single, straightforward issue to CAAF:
Whether the military judge erred in suppressing evidence of child pornography a digital forensic examiner discovered during a search for appellee’s communications with a child victim.
CAAF heard oral argument on March 15, 2017 (noted here). Then it specified a different issue and ordered additional briefs:
The Fourth Amendment prohibits unreasonable searches. Was the search of [Gurczynski’]s thumb drive unreasonable, despite being executed pursuant to a facially valid warrant, in light of the facts that: 1) [Gurczynski] was convicted of the offense for which the search warrant was issued five months prior to the search; and 2) over nine months had passed between the issuance of the search warrant and the digital examination of the seized devices?
Slip op. at 5. With today’s opinion the court finds that the search was not reasonable, and that the military judge did not err, for three reasons:
First, Appellee [Gurczynski] had already been convicted of the offenses for which the warrant was issued. Second, the warrant and supporting affidavits did not mention child pornography. Third, SA JT [the searcher] nonetheless directed the DFE [digital forensic examination] to search for child pornography.
Slip op. at 5.
Opinion Analysis: Questioning for a disciplinary purpose with no operational exigency required a rights warning in United States v. Ramos, No. 17-0143/CG
CAAF decided the Coast Guard case of United States v. Ramos, 76 M.J. 372, No. 17-0143/CG (CAAFlog case page) (link to slip op.), on Wednesday, July 19, 2017. The court finds that Coast Guard Investigative Service (CGIS) agents were required to give Article 31(b) rights, and that there was no immediate operational necessity justifying the failure to do so. Accordingly, the military judge erred in failing to suppress Ramos’ statement, and the Coast Guard CCA erred in affirming that ruling.
Chief Judge Erdmann writes for the court, joined by all but Judge Stucky who dissents.
CAAF granted review to determine:
Whether Appellant was entitled to Article 31(b), UCMJ, warnings at any point during his interrogation by CGIS, and if so, whether he was prejudiced by the admission of any of his statements.
Boatswain’s Mate First Class (E-6) Ramos was convicted contrary to his pleas of not guilty, by a special court-martial composed of officer members, of one specification of conspiracy to manufacture and distribute marijuana, three specifications of making a false official statement, and one specification of wrongful possession of marijuana with intent to distribute. The panel sentenced Ramos to confinement for 90 days, reduction to E-3, and a bad-conduct discharge, and the convening authority approved the sentence as adjudged. The CCA disapproved two of the false official statement convictions (seemingly for factual insufficiency), but approved the sentence.
The convictions related to Ramos’ civilian wife’s efforts to start a business manufacturing marijuana under Washington State’s recreational marijuana law. Such a business, however, violates federal civil and military law. The business failed, and the wife’s business partner (named Hart) made threats. Ramos reported those threats to his chain of command and was then interviewed by CGIS. Despite the Government’s knowledge about Ramos’ connection to an unlawful marijuana business, the CGIS agent did not provide Ramos with an Article 31(b) warning during the interview. Ramos then made statements that were admitted against him during his court-martial.
The military judge denied a defense motion to suppress, concluding that there was “no requirement to give Ramos his Article 31(b) rights because [the agent] was not conducting a law enforcement or disciplinary inquiry, but was instead focused on ‘force protection.'” Slip op. at 4. The Coast Guard CCA affirmed, concluding that “the agents’ questions were focused on identifying and mitigating the threat.” Id.
In today’s opinion a majority of CAAF rejects this conclusion, finding instead that this case presents “a classic ‘mixed purpose'” of both force protection and a disciplinary inquiry. Slip op. at 7. The majority then concludes that the circumstances of the questioning “reflect conduct that appears intentionally designed to evade Ramos’s codal rights in furtherance of a law enforcement investigation. ” Slip op. at 8. It also rejects the operational context exception, finding that “there was no immediate operational necessity that required the agents to forgo the Article 31(b) warnings.” Slip op. at 11. But CAAF only reverses Ramos’ conviction of making a false official statement because “Ramos has not challenged his convictions on the drug-related offenses.” Slip op. at 11.
Judge Stucky’s dissent reaches the opposite conclusion on the purpose of the interview, finding that it “was not done for a law enforcement or disciplinary purpose” and so no warning was required. Diss. op. at 3.
Opinion Analysis: The authorization to search electronic media did not require a temporal limitation in United States v. Richards, No. 16-0727/AF
CAAF decided the Air Force case of United States v. Richards, 76 M.J. 365, No. 16-0727/AF (CAAFlog case page) (link to slip op.), on Thursday, July 13, 2017. The court holds that a search authorization for electronic media need not include a temporal limitation, even when the facts enable investigators to limit the search to a specific time period, so long as the authorization is otherwise sufficiently particularized so as to avoid an unconstitutionally broad search. Applying that rule to the facts of this case, CAAF affirms the military judge’s ruling that admitted the fruits of the search of the appellant’s electronic media, the decision of the Air Force CCA, and the appellant’s convictions.
Judge Sparks writes for a unanimous court.
CAAF granted review to determine:
Whether the 9 November 2011 search authorization was overbroad in failing to limit the dates of the communications being searched, and if so, whether the error was harmless.
Lieutenant Colonel (O-5) Richards was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of possession of child pornography and committing indecent acts with children under the age of 16 in violation of Article 134, and of four specifications of failing to obey a lawful order in violation of Article 92. The military judge sentenced Richards to confinement for 17 years and a dismissal. In a lengthy opinion the CCA affirmed the findings and the sentence.
The charges arose after a former participant in a Big Brothers of America program alleged that he was sexually assault by Richards some years earlier. The Air Force Office of Special Investigations (AFOSI) began an investigation that revealed evidence of an ongoing sexual relationship between Richards and another minor and involving electronic communications. That evidence supported a search authorization “for Appellant’s residence and person for items used to electronically communicate with [the minor].” Slip op. at 3. Numerous devices and hard drives were seized and sent to the Defense Computer Forensic Laboratory (DCFL) for extraction, whereby a software program “goes through the image – the mirrored copy of the drive, it looks for those files, pictures, chat logs, Word documents, Internet history, and it pulls them all out and throws them into a directory on a new drive.” Slip op. at 4 (quoting examiner). “DCFL simply dumped all pictures and on-line chats from these [multiple] drives onto one big drive for review.” Slip op. at 4 (quoting a Special Agent). While searching the compiled extracted materials, the investigator discovered suspected child pornography and obtained new search authorizations. Subsequent investigation revealed more images, leading to Richards’ convictions.
Richards moved to suppress the fruits of the searches on the basis that the original search authorization was overbroad. That motion was rejected at trial and on appeal before the Air Force court, and is now rejected by CAAF as well.
Writing for the unanimous court, Judge Sparks avoids any bright-line rule for electronic searches except for the Fourth Amendment’s particularity requirement that prevents general searches, which are “a general exploratory rummaging in a person’s belongings.” Slip op. at 6 (quoting United States v. Carey, 172 F.3d 1268, 1272 (10th Cir. 1999)). Instead, Judge Sparks explains that “the courts have looked to what is reasonable under the circumstances.” Slip op. at 6. And here, because the authorization was limited to evidence of communications with the minor (which could include images), it was reasonable.
Opinion Analysis: “Gross governmental misconduct” is remarkable but harmless in United States v. Claxton, No. 17-0148/AF
CAAF decided the Air Force case of United States v. Claxton, 76 M.J. 356, No. 17-0148/AF (CAAFlog case page) (link to slip op.), on Thursday, July 6, 2017. Finding “gross governmental misconduct” in the failure to disclose the fact that two prosecution witnesses were confidential informants – and identifying by name the prosecutors, the chief of justice (senior prosecutor), the staff judge advocate (commander’s lawyer), and the commander – a four-judge majority finds the nondisclosure to be harmless and affirms the convictions and the decision of the Air Force CCA.
Judge Stucky writes for the court joined by all but Chief Judge Erdmann, who dissents and would reverse the convictions.
Air Force Cadet Claxton was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of wrongful sexual contact of one alleged victim, attempted abusive sexual contact and assault consummated by a battery of a second alleged victim, and two specifications of assault consummated by a battery for a physical altercation with two other cadets, in violation of Articles 80, 120, and 128, UCMJ. He was sentenced to confinement for six months, total forfeitures, and a dismissal.
The charges involved two separate encounters between Claxton and female Air Force Academy cadets, and a physical altercation that occurred after Claxton was confronted by other cadets about one of the encounters. Numerous witnesses testified against Claxton, including two cadets who were also confidential (undercover) informants for the Air Force Office of Special Investigations (AFOSI). But their informant status was not disclosed to the defense despite a specific discovery request for details about any confidential informants. Slip op. at 2. After trial, however, one of the informants disclosed his status to a newspaper, which printed the fact. CAAF then ordered a DuBay (post-trial fact-finding) hearing, after which the Air Force CCA reviewed the matter and found a Brady violation but no prejudice to Claxton. CAAF then granted review to determine:
Whether the government’s failure to disclose that Air Force Academy Cadet E.T. was a confidential informant for the Air Force Office of Special Investigations (AFOSI) pursuant to Brady v. Maryland, 373 U.S. 83 (1963), was harmless beyond a reasonable doubt.
(note: CAAF also granted a Hills trailer issue, but subsequently vacated that grant. See slip op. at 1 n.1).
Criticizing everyone from the trial counsel (who failed to disclose) to the then-acting Judge Advocate General of the Air Force (who mishandled an Article 73 petition for a new trial based on the failure to disclose), Judge Stucky finds that “it is profoundly disturbing that officers of the court would engage in such conduct.” Slip op. at 10. Yet this great disturbance wins Claxton nothing, as the majority is convinced that the circumstances of the case leaves “no reasonable likelihood” that the fact that two witnesses were confidential informants could have affected the findings or sentence. Slip op. at 9. Chief Judge Erdmann, however, finds that “due to the nondisclosure, the defense was denied the ability to pursue a strategic option and present their best defense.” Diss. op. at 3.
Opinion Analysis: Finding no probable cause to apprehend and a clear violation of the Fourth Amendment, CAAF reverses the convictions in United States v. Darnall, No. 16-0729/NA
CAAF decided the Navy case of United States v. Darnall, 76 M.J. 326, No. 16-0729/NA (CAAFlog case page) (link to slip op.), on Wednesday, June 28, 2017. Concluding that military criminal investigators did not have probable cause to apprehend Darnall, CAAF finds that the fruits of his subsequent interrogation should have been suppressed by the military judge. The findings and sentence are set aside, and the decision of the Navy-Marine Corps CCA is reversed, with a rehearing authorized.
Judge Sparks writes for a unanimous court.
Hospitalman (E-3) Darnall was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of various offenses related to the importation, manufacture, and distribution of controlled substances (steroids and designer drugs). He was sentenced to confinement for six years, reduction to E-1, total forfeitures, and a dishonorable discharge. The convening authority suspended one year of the confinement but otherwise approved the findings and sentence.
CAAF granted review to determine:
Whether the military judge erred in failing to suppress evidence directly flowing from the illegal apprehension of Appellant, whether the NMCCA ruling upholding this decision conflated reasonable suspicion with probable cause, and whether this decision should be reversed.
Darnall became a suspect when a U.S. Mail package containing dimethylone (a controlled substance analogue) was intercepted. The package was addressed to someone with Darnall’s name at an address in the town of Twentynine Palms, California, (the location of a large Marine Corps base where Darnall was stationed). Based on the address, Agent Pledger of the Marine Criminal Investigative Division (CID) suspected that the intended recipient of the package might be a servicemember, and he arranged “to have a counterfeit version of the package containing no real drugs delivered to Appellant at the regimental mailroom and to apprehend him after he picked it up.” Slip op. at 3. This occurred, and Darnall was apprehended (arrested), handcuffed, and interrogated, leading to the discovery of much incriminating evidence.
Darnall moved to suppress the evidence at trial on the basis that the apprehension was without probable cause. The military judge denied the motion and the the Navy-Marine Corps CCA affirmed. The CCA found that the military judge wrongly determined that Darnall previously lived at the residential address on the package, but the CCA concluded that even without this information there was probable cause to apprehend Darnall.
CAAF reverses. Judge Sparks finds that the CCA “provided minimal analysis” in its opinion and “unlike the lower court, we do not conclude that the facts . . . provide sufficient evidence to establish probable cause to apprehend.” Slip op. at 7. Rather, CAAF concludes that Agent Pledger’s actions were not “objectively reasonable law enforcement activity,” but instead was a “somewhat sloppy and apathetic investigation” leading to an apprehension “in clear violation of [Darnall’s] Fourth Amendment rights.” Slip op. at 10.
Opinion Analysis: Members have a duty to be candid, and the dishonesty of three members required a mistrial in United States v. Commisso, No. 16-0555/AR
CAAF decided the Army case of United States v. Commisso, 76 M.J. 315, No. 16-0555/AR (CAAFlog case page) (link to slip op.) on Monday, June 26, 2017. The court finds that the military judge abused his discretion when he denied a post-trial motion for a mistrial that was based on dishonest answers from three members during voir dire (the members concealed their participation in Sexual Assault Review Board (SARB) meetings where the case was discussed). CAAF reverses the findings and sentence and the decision of the Army CCA, and authorizes a rehearing.
Judge Ryan writes for a unanimous court.
Sergeant First Class (E-7) Commisso was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of abusive sexual contact, indecent viewing, indecent recording, indecent broadcasting, violating a lawful general regulation, obstructing justice, and making a false official statement, in violation of Articles 120, 120c, 92, 134, and 107, UCMJ. He was sentenced to confinement for one year, reduction to E-1, and a bad-conduct discharge. The Army CCA set aside the convictions of violating a lawful general regulation and making a false official statement, but otherwise affirmed the findings and the sentence. But the CCA did not discuss the issue that CAAF granted to review, which is:
Whether the military judge abused his discretion in denying the defense’s post-trial motion for a mistrial, thereby violating appellant’s right to have his case decided by a panel of fair and impartial members, because three panel members failed to disclose that they had prior knowledge of the case.
In today’s unanimous decision Judge Ryan excoriates the members – two Colonels and a Lieutenant Colonel, all identified by name – for their “lack of candor” (slip op. at 2 and 12) and their “dishonesty” (slip op. at 11) during voir dire, concluding that had they been honest then Commisso “would have had at least a valid basis for challenging one or more of the panel members for cause.” Slip op. at 11.
Opinion Analysis: The commanding officer’s testimony about the importance of a harsh sentence is some evidence of unlawful command influence in United States v. Chikaka, No. 16-0586/MC
CAAF decided the Marine Corps case of United States v. Chikaka, 76 M.J. 310, No. 16-0586/MC (CAAFlog case page) (link to slip op.), on Tuesday, June 20, 2017. A short opinion finds that the sentencing-phase testimony of the appellant’s commanding officer, that opined in favor of a harsher sentence, constitutes some evidence of unlawful command influence (UCI) sufficient to require further review by the Navy-Marine Corps Court of Criminal Appeals. CAAF reverses the CCA’s decision that found no merit in the assertion of UCI and remands for further consideration.
Judge Ohlson writes for a unanimous court.
Opinion Analysis: A natural and probable consequence, and maybe something less, sustains a conviction of reckless endangerment in United States v. Herrmann, No. 16-0599/AR
CAAF decided the Army case of United States v. Herrmann, 76 M.J. 304, No. 16-0599/AR (CAAFlog case page) (link to slip op.) on Monday, June 19, 2017. Defining the term likely in the element of conduct likely to produce death or grievous bodily harm, CAAF affirms a conviction of reckless endangerment in violation of Article 134 for the pencil packing of reserve parachutes.
Judge Ohlson writes for a unanimous court.
Sergeant (E-5) Herrmann was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of willful dereliction in the performance of his duties in violation of Article 92, and of reckless endangerment in violation of Article 134. Herrmann was sentenced to confinement for 10 months, reduction to E-1, total forfeitures, and a bad conduct discharge. The Army CCA affirmed the findings and sentence in a published opinion. 75 M.J. 672.
CAAF then granted review of a single issue:
Whether the evidence is legally sufficient to find appellant committed reckless endangerment, which requires proof the conduct was likely to produce death or grievous bodily harm.
The convictions were based on the pencil packing of reserve parachutes, Judge Ohlson defines pencil packing as:
illicit conduct where a soldier responsible for packing or inspecting a parachute fails to do so, but then falsely indicates in writing that the proper packing and inspecting procedures were followed.
Slip op. at 2-3 n.2. The prosecution introduced testimony by Herrmann’s subordinates admitting to the pencil packing, and also presented evidence of various ways the parachutes could have failed. A conviction of reckless endangerment, however, requires “conduct . . . likely to produce death or grievous bodily harm to another person.” ¶ 100a, Part IV, Manual for Courts-Martial (2016). Herrmann’s defense was that any possibility of such harm was less than likely, primarily because the parachutes were merely reserves.
But CAAF is unconvinced and affirms the conviction.