CAAFlog » October 2016 Term

CAAF decided the Marine Corps case of United States v. Chikaka, __ M.J. __, 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.

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CAAF decided the Army case of United States v. Herrmann, __ M.J. __, 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.

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Did you listen to the oral argument in United States v. Hukill, 76 M.J. 219 (C.A.A.F. May 2, 2017) (CAAFlog case page)?

Hukill was a trailer to Hills (CAAFlog case page) for judge-alone cases. But rather than focus on the difference between a panel and a military judge, the Army Appellate Government Division used the case as a vehicle to re-litigate the underlying holding of Hills.

It lost. Bigly.

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CAAF decided the Coast Guard case of United States v. Reese, __ M.J. __, No. 17-0028/CG (CAAFlog case page) (link to slip op.), on Wednesday, June 14, 2017. The court dismisses two charges after concluding that the conviction on the first (alleging sexual abuse of a child) was the product of an improper major change during the trial, and that the second charge failed to state an offense. The decision of the Coast Guard CCA is reversed and the case is remanded for reassessment of the sentence or a sentence rehearing.

Chief Judge Erdmann writes for a unanimous court.

CAAF granted review of two issues:

I. Whether the military judge erred in allowing the government to make a major change to a specification after the complaining witness’s testimony did not support the offense as originally charged.

II. Whether the specification of the additional charge fails to state an offense where the terminal element failed to allege words of criminality and where the alleged conduct fell within a listed offense of Article 134, UCMJ.

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CAAF decided the certified Air Force case of United States v. Carter, __ M.J. __, Nos. 17-0079/AF & 17-0086/AF (CAAFlog case page) (link to slip op.), on Monday, June 5, 2017. In a short opinion issued less than a month after oral argument, CAAF agrees with the Air Force CCA’s “interpretation of its own holding . . . the AFCCA did not authorize a rehearing.” Slip op. at 4. The CCA’s decision dismissing the charges with prejudice is affirmed.

Judge Ryan writes for a unanimous court.

Back in 2010, Master Sergeant (E-7) Carter was convicted of indecent liberties with a child in violation of Article 120(j) (2016), and of child endangerment and indecent acts with a child, both in violation of Article 134, and sentenced to confinement for 4 years, reduction to E-1, total forfeitures, and a dishonorable discharge. The convening authority disapproved the conviction of violation of Article 120(j) and reduced the sentence to confinement to three years, but approved the remainder of the findings and sentence.

The Article 134 specifications, however, failed to allege a terminal element and so therefore failed to state offenses. See United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011) (discussed here). The CCA reversed the findings in 2013, the JAG certified, and CAAF summarily affirmed. The case was remanded and two specifications under a new charge were preferred and referred to a new general court-martial. Carter made numerous objections (including objecting based on the statute of limitations), but the trial proceeded and Carter was again convicted. The second sentence included confinement for 40 months, total forfeitures, and reduction to E-1 (but not a punitive discharge).

The Air Force court, however, reversed again. In a 2016 decision discussed here, a three-judge panel of the Air Force CCA split 2-1 to conclude that the court’s 2013 decision did not authorize further proceedings and that the charge should be dismissed with prejudice. The dissenting judge found that the second trial was an independent proceeding based on a totally new charge. The Judge Advocate General of the Air Force then certified the case to CAAF challenging the CCA’s dismissal, and CAAF granted review of five additional issues.

Judge Ryan’s opinion, however, only discusses the certified issue, because CAAF finds that “under these circumstances, the convening authority was not authorized to order any further proceedings.” Slip op. at 2.

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CAAF issued the following summary disposition in United States v. Brantley, __ M.J. __, No.17-0055/AR (CAAFlog case page), on Thursday, June 1, 2017:

No. 17-0055/AR. U.S. v. Mitchell L. Brantley. CCA 20150199. On further consideration of the granted issue (76 M.J. 62 (C.A.A.F. 2017)), the briefs of the parties, and oral argument, it is ordered that the decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals for a new review under Article 66, Uniform Code of Military Justice, 10 U.S.C. § 866 (2012), to evaluate the case in light of United States v. Sager, 76 M.J. 158 (C.A.A.F. March 21, 2017).

In United States v. Sager, 76 M.J. 158 (C.A.A.F. Mar. 21, 2017) (CAAFlog case page), reviewing the text of Article 120(b)(2), as incorporated by Article 120(d), CAAF concluded that the language “asleep, unconscious, or otherwise unaware” creates three separate theories under which an accused may be convicted. The court reversed the decision of the Navy-Marine Corps CCA that found that the language creates only a single theory of criminal liability, and remanded the case for further consideration.

Brantley challenged the legal sufficiency of the evidence that an alleged victim was unaware of a sexual touching in a case where the prosecution’s argument focused on the alleged victim’s impairment. I concluded my argument preview with the following observation:

Yet I think there is also a strong argument that CAAF should summarily reverse and remand to the CCA for further consideration in light of Sager. There the CCA can also determine – based on a proper understanding of the law – whether it is personally convinced of Brantley’s guilt beyond a reasonable doubt (the test for factual sufficiency; a review available only at the CCA).

CAAF decided the Army case of United States v. Hendrix, __ M.J. __ No. 16-0731/AR (CAAFlog case page) (link to slip op.), on Thursday, June 1, 2017. Concluding that a voice lineup was so flawed as to render the result meaningless, CAAF finds that admission of evidence of the lineup caused prejudice because it was important for the prosecution. The court reverses the appellant’s conviction of sexual abuse of a child, authorizing a rehearing.

Judge Ohlson writes for a unanimous court.

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CAAF decided the Air Force case of United States v. Shea, __ M.J. __, No. 16-0530/AF (CAAFlog case page) (link to slip op.), on Tuesday, May 30, 2017. Concluding that an appellant has no right to a CCA panel on remand that is composed of the same judges who considered the case on initial review, CAAF finds that there was no error in the changed composition of the panel in this case, and also that there is no evidence of unlawful influence in the circumstances leading to that change. The court affirms the decision of the Air Force CCA that reversed one of the convictions but affirmed the sentence as approved by the convening authority.

Judge Sparks writes for a unanimous court.

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CAAF decided the Air Force case of United States v. Oliver, __ M.J. __, No. 16-0484/AF (CAAFlog case page) (link to slip op.), on Wednesday, May 24, 2017. Finding forfeiture (and not waiver) in the absence of objection to the military judge considering wrongful sexual contact as a lesser included offense of abusive sexual contact, CAAF concludes that wrongful sexual contact is not a lesser included offense of abusive sexual contact but the conviction may stand nevertheless because there was no prejudice to the defense in this case. CAAF affirms the finding of guilty and the decision of the Air Force CCA.

Judge Sparks writes for the court joined by all by Judge Stucky, who concurs in the result but would have found the error was waived.

Senior Airman Oliver was tried on numerous charges by a general court-martial composed of a military judge alone. One charge alleged abusive sexual contact by placing in fear in violation of Article 120(h) (2006) in that Oliver – who was at the time a Staff Sergeant assigned as a training instructor at Lackland Air Force Base – groped a female trainee “by placing her in fear of an impact on her military career through the use and abuse of [his] military rank, position, and authority.” Slip op. at 2 (quoting charge sheet). Oliver’s defense was that the touching occurred but was consensual.

The military judge acquitted Oliver of abusive sexual contact by placing in fear and instead convicted him of wrongful sexual contact, which occurs when:

Any person subject to this chapter who, without legal justification or lawful authorization, engages in sexual contact with another person without that other person’s permission. . .

Article 120(m) (2006). The military judge notified both sides that he was going to consider this potential lesser included offense in his deliberations and Oliver’s defense counsel did not object. CAAF granted review to determine:

Whether wrongful sexual contact was a lesser-included offense of abusive sexual contact.

In yesterday’s opinion, Judge Sparks grapples with the defense failure to object but ultimately applies last term’s decision in United States v. Riggins, 75 M.J. 78 (C.A.A.F. Jan. 7, 2016) (CAAFlog case page), to hold that wrongful sexual contact is not a lesser included offense of abusive sexual contact. However, because Oliver’s “theory throughout the court-martial was that [the alleged victim] consented to the sexual activity. . . there is nothing to indicate material prejudice to Appellant’s substantial rights” to notice, and so the conviction is affirmed. Slip op. at 7.

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Audio of yesterday’s oral argument at CAAF is available at the following link:

United States v. Chikaka, 16-0586/MC (CAAFlog case page): Oral argument audio.

CAAF decided the Army case of United States v. Tucker, __ M.J. __, No. 17-0160/AR (CAAFlog case page) (link to slip op.), on Wednesday, May 23, 2017. With a per curiam opinion issued just thirteen days after oral argument, the court explains that the term neglects in Article 134 does not mean negligence, rejecting the published decision of the Army CCA that found that the term states a negligence standard. CAAF reverses the CCA’s decision and remands for a new Article 66 review “to evaluate this case in light of Elonis v. United States, 135 S. Ct. 2001 (2015), and United States v. Haverty, 76 M.J. 199 (C.A.A.F. 2017) [CAAFlog case page].”

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CAAF decided the Air Force case of United States v. Boyce, __ M.J. __, No. 16-0546/AF (CAAFlog case page) (link to slip op.), on Monday, May 22, 2017. A deeply-divided court concludes that the conduct of senior Air Force officials created an appearance of unlawful command influence (UCI) in this case. And while the court finds no prejudice to Boyce, the majority “conclude[s] that an objective, disinterested observer with knowledge of all the facts would harbor a significant doubt about the fairness of the court-martial proceedings.” Slip op. at 17. As a remedy CAAF sets aside Airman (E-2) Boyce’s convictions of the rape and battery of his wife, authorizing a rehearing.

Judge Ohlson writes for the court, joined by Chief Judge Erdmann and Judge Sparks. Judge Stucky and Judge Ryan dissent, both writing separately.

CAAF reviewed a single issue:

The Chief of Staff of the Air Force advised the convening authority that, unless he retired, the Secretary of the Air Force would fire him. Was the convening authority’s subsequent referral of charges unlawfully influenced by the threat to his position and career?

The convening authority at issue was Air Force Lieutenant General Craig Franklin, whose exercise of command discretion under Article 60(c) to set aside the sexual assault conviction of Air Force Lieutenant Colonel James Wilkerson in 2013 was our #5 Military Justice Story of 2013. After Franklin acted in the Wilkerson case, and after he ordered the pretrial dismissal of charges in another sexual assault case (that eventually went to trial and resulted in an acquittal), he referred Airman Boyce’s case for trial by general court-martial.

The briefs explained that numerous subordinates recommended that Franklin make that referral decision, including Boyce’s Squadron Commander, the Staff Judge Advocate to the Special Court-Martial Convening Authority, the Special Court-Martial Convening Authority himself, and Lt Gen Franklin’s Staff Judge Advocate. Nevertheless, Airman Boyce’s defense asserted at trial, on appeal at the Air Force CCA, and finally to CAAF that the referral decision was the product of unlawful influence. CAAF’s five judges are unanimous in their rejection of this claim of actual influence. But a bare majority of the court “deem[s] the totality of the circumstances in this case to be particularly troubling and egregious,” slip op. at 17, and “conclude[s] that the appearance of unlawful command influence in this case cannot go unaddressed,” slip op. at 18.

Leading this majority, Judge Ohlson provides a comprehensive review of CAAF’s UCI jurisprudence, meticulously differentiating between “actual unlawful command influence and the appearance of unlawful command influence.” Slip op. at 6 (emphases in original). He explains that:

[U]nlike actual unlawful command influence where prejudice to the accused is required, no such showing is required for a meritorious claim of an appearance of unlawful command influence. Rather, the prejudice involved in the latter instance is the damage to the public’s perception of the fairness of the military justice system as a whole and not the prejudice to the individual accused.

Slip op. at 10. The dissenters, however, strongly disagree with this standard, though they clearly disapprove of the actions of Air Force officials that brought this issue before CAAF.

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This week at SCOTUS: The conference on the cert. petition in Sterling was rescheduled. A combined reply brief was filed in Dalmazzi and Cox (available here). The petition for a rehearing was denied in Howell (noted here).

A cert. petition was filed in Ortiz (available here).

An application for an extension of time to file a cert. petition was filed in Bartee v. United States, No. 16A1135. In United States v. Bartee, 76 M.J. 141 (C.A.A.F. Mar. 15, 2017) (CAAFlog case page), a majority of CAAF concluded that there was no systemic exclusion of court-martial members on the basis of rank despite the fact that the convening order duplicated an earlier order that was found to have systemically excluded.

I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking five cases:

This week at CAAF: CAAF will hear the final oral argument of the term on Tuesday, May 23, 2017, at 9:30 a.m.:

United States v. Chikaka, 16-0586/MC (CAAFlog case page)

Issues:
I. Where the military judge admitted on the merits a campaign plan to “fully operationalize the Commandant’s guidance” from the Heritage Tour, and then during sentencing admitted a picture of the Commandant and allowed Appellant’s commanding officer to testify that it was important for the members to adjudge a harsh sentence, did the lower court err in failing to find evidence of unlawful command influence sufficient to shift the burden to the Government to disprove unlawful command influence in this case?
II. Whether the military judge erred when he instructed the members, “if, based on your consideration of the evidence, you are firmly convinced that the accused is guilty of the crime charged, you must find him guilty,” where such an instruction is in violation of United States v. Martin Linen Supply Co., 430 U.S. 564, 572-73 (1977), and there is inconsistent application between the services of the instructions relating to when members must or should convict an accused.

Case Links:
NMCCA oral argument audio
NMCCA opinion
Appellant’s brief
Appellee’s (Navy-Marine Corps App. Gov’t Div.) brief
Appellant’s brief
Blog post: Argument preview

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Wednesday, May 24, 2017, at 12:45 p.m.:

United States v. Close, No. 20140984

Issue: Whether trial defense counsel were ineffective by failing to move to suppress all of the evidence seized and subsequently examined from appellant’s off-post residence as an unreasonable search and seizure.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard CCA’s oral argument schedule shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

CAAF will hear the final oral argument of the October 2016 term in the Marine Corps case of United States v. Chikaka, No. 16-0586/MC (CAAFlog case page), on Tuesday, May 23, 2017, at 9:30 a.m. The court granted review of two issues, but only the first issue will get the court’s attention (as the second was resolved in favor of the Government in McClour):

I. Where the military judge admitted on the merits a campaign plan to “fully operationalize the Commandant’s guidance” from the Heritage Tour, and then during sentencing admitted a picture of the Commandant and allowed Appellant’s commanding officer to testify that it was important for the members to adjudge a harsh sentence, did the lower court err in failing to find evidence of unlawful command influence sufficient to shift the burden to the Government to disprove unlawful command influence in this case?

II. Whether the military judge erred when he instructed the members, “if, based on your consideration of the evidence, you are firmly convinced that the accused is guilty of the crime charged, you must find him guilty,” where such an instruction is in violation of United States v. Martin Linen Supply Co., 430 U.S. 564, 572-73 (1977), and there is inconsistent application between the services of the instructions relating to when members must or should convict an accused.

Staff Sergeant (E-6) Chikaka was convicted contrary to his pleas of not guilty, by a general composed of members with enlisted representation, of attempted abusive sexual contact (as a lesser-included offense of abusive sexual contact), wrongful sexual contact, abusive sexual contact, nine specifications of violating general orders, four specifications of obstructing justice, one specification of indecent language, and one specification of adultery. The adjudged and initially-approved sentence was confinement for 12 years, reduction to E-1, total forfeitures, and a dishonorable discharge. A second convening authority’s action (after the Navy-Marine Corps CCA found error in the post-trial processing) reduced the confinement to 10 years. The CCA further reduced the sentence to confinement to five years.

Chikaka’s convictions arose from his improper relationships with prospective Marine Corps applicants while serving as a recruiter in Douglasville, Georgia, in 2012. But CAAF’s review will focus on something else that happened that year: a presentation given multiple times by then-Commandant of the Marine Corps General James Amos known as the Heritage Brief.

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CAAF decided the Army case of United States v. Feliciano, __ M.J. __, No. 17-0035/AR (CAAFlog case page) (link to slip op.), on Wednesday, May 17, 2017. Concluding that the defenses of voluntary abandonment and mistake of fact as to consent were not raised by the evidence, CAAF finds no error in the omission of an instruction on the former, and no error in the specific wording of the instruction given on the latter. A footnote also distinguishes a special defense from an affirmative defense. CAAF affirms the decision of the Army CCA and the findings and sentence.

Judge Stucky writes for a unanimous court.

Private (E-2) Feliciano was convicted of two specifications of attempted aggravated sexual assault in violation of Articles 80 and 120(c) (2006). Both specifications arose out of a sexual encounter in Feliciano’s barracks room with a female soldier who had been drinking. A third soldier witnessed the encounter, heard the female soldier repeatedly say no, and intervened by telling Feliciano: “That if he continued along that they would definitely get him for rape, and that will be 25 to life and that people would probably also rape him in jail.” Slip op. at 2 (marks omitted). Upon hearing this Feliciano ceased contact with the alleged victim.

CAAF granted review of two issues:

I. Whether the military judge erred when he failed to instruct the panel on the defense of voluntary abandonment, and if so, whether the error was harmless beyond a reasonable doubt.

II. Whether the military judge erred when he instructed the panel that appellant’s mistake of fact as to consent must be both honest and reasonable, and if so, whether the error was harmless beyond a reasonable doubt.

In today’s opinion, Judge Stucky explains that neither voluntary abandonment nor mistake of fact as to consent were raised by the evidence, and so there was no error in the failure to give the first instruction or in the wording of the second. These conclusions are unsurprising considering the facts. But the opinion also includes a lengthy footnote that distinguishes the uniquely-military special defense from a more-common affirmative defense. Unfortunately, while the distinction in the footnote is clear, the opinion itself seems to blur the line.

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