CAAFlog » October 2016 Term

CAAF decided the Navy case of United States v. Sager, __ M.J. __, No. 16-0418/NA (CAAFlog case page) (link to slip op.), on  Tuesday, March 21, 2017. Reviewing the text of Article 120(b)(2), as incorporated by Article 120(d), CAAF concludes that the language “asleep, unconscious, or otherwise unaware” creates three separate theories under which an accused may be convicted. The court reverses the decision of the Navy-Marine Corps CCA that found that the language creates only a single theory of criminal liability, and remands the case for further consideration.

Chief Judge Erdmann writes for the court, joined by all but Judge Stucky who dissents.

Aviation Ordnanceman Airman (E-3) Sager was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of one specification of abusive sexual contact in violation of Article 120(d) (2012). That statute criminalizes sexual contact in the same way that Article 120(b) criminalizes sexual acts. The Government charged Sager with two specifications, both related to a sexual encounter between Sager and his roommate. One specification alleged that the roommate was incapable of consenting due to intoxication, while the other alleged that the roommate was asleep, unconscious, or otherwise unaware. The members acquitted Sager outright of the specification implicating intoxication, but returned findings by exceptions to the specification implicating unawareness:

On appeal, Sager asserted that the specification was unconstitutionally vague because it failed to identify how the roommate was otherwise unaware, and also that the finding is factually and legally insufficient because the evidence indicated that the roommate was either asleep or unconscious. Sager’s argument was essentially that the statute’s enumeration of asleep, unconscious, or otherwise unaware creates three separate and distinct theories of criminal liability. The NMCCA, however, rejected this argument, concluding that:

asleep or unconscious are examples of how an individual may be “otherwise unaware” and are not alternate theories of criminal liability.

United States v. Sager, No. 201400356, slip op. at 7 (N-M. Ct. Crim. App. Dec. 29, 2015) (link to slip op.). From this conclusion the NMCCA then found that evidence of the roommate’s degree of intoxication or unconsciousness was relevant, and it affirmed the conviction. CAAF then granted review of two issues questioning both the meaning of the statute and the adequacy of the CCA’s review of the evidence:

I. In affirming the abusive sexual contact conviction, the lower court relied on facts of which the members acquitted appellant. Was this error?

II. Article 120(d), UCMJ, prohibits sexual contact on another person when that person is “asleep, unconscious, or otherwise unaware.” Despite these specific statutory terms, the lower court held that “asleep” and “unconscious” do not establish theories of criminal liability, but only the phrase “otherwise unaware” establishes criminal liability. Did the lower court err in its interpretation of Article 120(d), UCMJ?

In today’s opinion Chief Judge Erdmann and the majority answer the second issue in the affirmative, finding that the CCA erred in its statutory interpretation, but decline to answer the first issue, remanding it to the CCA for further review. Judge Stucky, however, would affirm the conviction.

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CAAF decided the Army case of United States v. Lopez, __ M.J. __, No. 16-0487/AR (CAAFlog case page) (link to slip op.), on Monday March 20, 2017. The court finds error and prejudice in the testimony of a witness that gave her opinion of the appellant’s guilt of the offense of indecent liberties with a child, and it reverses that conviction. But it finds the similar testimony of a second witness, whose testimony supported a conviction of rape, to be harmless.

Judge Stucky writes for the court, joined by all but Judge Sparks who concurs in part but dissents from the court’s reversal of the indecent liberties conviction.

A general court-martial composed of officer members convicted Sergeant (E-5) Lopez, contrary to his pleas of not guilty, of rape of his wife and of indecent liberties with a child by exposing his wife’s minor son to pornographic material, both in violation of Article 120 (2006). Lopez was sentenced to confinement for five years, total forfeitures, reduction to E-1, and a dishonorable discharge. The Army CCA summarily affirmed the findings and sentence. CAAF then granted review, specifying the following issue:

Whether the military judge erred by admitting the testimony of appellant’s wife, Mrs. CL, who testified that appellant’s apology to his stepson meant that appellant was “loosely admitting guilt” to criminal conduct, and by also admitting the testimony of Ms. NM, who testified that appellant “had probably raped” his wife because Mrs. CL had recently researched “spousal rape” on the internet.

Human lie detector testimony occurs when a witness gives “an opinion as to whether the [other] person was truthful in making a specific statement regarding a fact at issue in the case.” United States v. Knapp, 73 M.J. 33, 36 (C.A.A.F. 2014) (CAAFlog case page) (citation omitted). In this case, Judge Stucky’s opinion considers whether human lie detector testimony was improperly admitted in two parts: the first reviewing the testimony of NM (CL’s daughter) to which there was no defense objection at trial, and the second reviewing the testimony of CL to which the defense counsel did object.

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Audio of today’s oral arguments at CAAF is available at the following links:

United States v. Reese, No. 17-0028/CG (CAAFlog case page): Oral argument audio.

United States v. Hendrix, No. 16-0731/AR (CAAFlog case page): Oral argument audio.

CAAF decided the Marine Corps case of United States v. Bartee, __ M.J. __, No. 16-0391/MC (CAAFlog case page) (link to slip op.), on Wednesday, March 15, 2017. A majority concludes 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, affirming the decision of the Navy-Marine Corps CCA.

Judge Sparks writes for the court, joined by Judges Stucky and Ohlson. Judge Ryan concurs. Chief Judge Erdmann dissents.

CAAF granted review of a single issue:

The systematic exclusion of individuals by rank from the member-selection process is prohibited. Here, the military judge dismissed the panel for violating Article 25, UCMJ, but the convening authority reconvened the exact same panel the same day. Is this systematic exclusion based on rank reversible error?

Lance Corporal (E-3) Bartee demanded trial by a general court-martial composed of members with enlisted representation. The convening authority’s staff judge advocate prepared a draft convening order appointing only officers at paygrade 0-4 and above and enlisted personnel at paygrade E-8 and above, and the convening authority signed that order. But Bartee objected to the composition of the panel on the basis that it improperly excluded members of junior ranks.

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Audio of Wednesday’s oral arguments at CAAF is available at the following links:

United States v. Richards, No. 16-0727/AF (CAAFlog case page): Oral argument audio.

United States v. Gurczynski, No. 17-0139/AR (CAAFlog case page): Oral argument audio.

CAAF will hear oral argument in the certified Army case of United States v. Gurczynski, No. 17-0139/AR (CAAFlog case page), on Wednesday, March 15, 2017, after the argument in Richards. A single issue continues an interlocutory Government appeal of a military judge’s ruling suppressing evidence:

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.

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.

In his ruling suppressing the images the military judge found that:

“[SA CJP] opened item 18 – the thumb drive – and saw several file names of videos normally associated with child pornography” and “[SA CJP] immediately suspected that these video files were child pornography.” (JA 167) (emphasis added). The military judge did not find SA CJP saw an image preview indicative of child pornography, nor did he find that SA CJP’s suspicion was based on an image preview. (JA 167).

The military judge also found that “[w]ithout seeking or obtaining a new search warrant, [SA CJP] opened one file and viewed it and determined that, based upon his professional experience in such matters, the video was child pornography.” (JA 167).

Appellee’s Br. at 10. The military judge determined that this action exceeded the scope of the warrant and suppressed the resulting images. The Army CCA affirmed. Gurczynski’s brief relies heavily on the military judge’s finding of fact as a basis to affirm the suppression.

The Army Appellate Government Division, however, asserts that the military judge got the facts wrong:

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CAAF will hear oral argument in the Air Force case of United States v. Richards, No. 16-0727/AF (CAAFlog case page), on Wednesday, March 15, 2017, at 1 p.m. The court will hear argument on one issue challenging the validity of a search authorization as overbroad (an Ortiz trailer issue won’t be argued):

I. Whether the panel of AFCCA that heard appellant’s case was improperly constituted.

II. 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 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 sexual 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 with another minor and involving electronic communications. That evidence supported a search authorization “to conduct a search to obtain ‘all electronic media and power cords for devices cable of transmitting or storing online communications.'” App. Br. at 7. Numerous devices were seized and searched by digital forensic analysis, eventually leading to the discovery of “thousands of images of child pornography.” Gov’t Div. Br. at 8.

At trial Richards moved to suppress the child pornography and derivative evidence “on several grounds, including that the search authorization was overbroad.” Gov’t Div. Br. at 9. The military judge denied the motion, concluding that the authorization was not overbroad and also that the good faith exception would apply even if it were overbroad. Richards renewed this claim at the Air Force CCA, where it was also rejected. He now takes the claim to CAAF to determine:

whether the Fourth Amendment requires a search authorization to include a temporal limitation when that information was available and known to law enforcement at the time the authorization was requested.

App. Br. at 17.

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CAAF will hear oral argument in the Army case of United States v. Hendrix, No. 16-0731/AR (CAAFlog case page), on Tuesday, March 14, 2017, after the argument in Reese. The court will hear oral argument on two issues challenging admission of a voice lineup (three other issues raised Ortiz issues):

I. Whether the military judge abused his discretion when he denied a defense motion to suppress related to the identification of the appellant during a voice lineup.

II. Whether the military judge abused his discretion in denying appellant’s motion to compel an expert consultant, EP, in the field of audio forensic science and voice identification.

Specialist (E-4) Hendrix was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of sexual abuse of a child in violation of Article 120b. He was sentenced to confinement for 30 months, reduction to E-1, total forfeitures, and a dishonorable discharge.

The charge involved an allegation by a ten year old girl that “a tall man came into her room, pulled down her pants and underwear, and touched her . . . [she] also remembered the man saying, ‘Is your sister asleep’ and ‘Promise me you won’t tell anybody.'” App. Br. at 5 (citing record). Hendrix was a friend of the family and was charged. An Article 32 pretrial investigation, however, found no reasonable grounds to believe that Hendrix committed the offense in part because “CID never did a voice lineup to confirm whether [the child] could identify [Hendrix’s] voice.” App. Br. at 5 (quoting record). The prosecution then decided to conduct a voice lineup. But the process they used was less than ideal.

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CAAF will hear oral argument in the Coast Guard case of United States v. Reese, No. 17-0028/CG (CAAFlog case page), on Tuesday, March 14, 2017, at 9:30 a.m. Two granted issues challenge the wording of the charges; the first based on a change made during the trial and the second based on the omission of words of criminality from a specification under Article 134:

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.

Aviation Maintenance Technician First Class (E-6) Reese elected to be tried by a military judge alone. Reese pleaded guilty to numerous offenses but he pleaded not guilty to other offenses including allegations of sexual abuse of a four year old boy, EV. Reese was also charged with engaging in service discrediting conduct in violation of Article 134 for telling the boy to keep quiet about the alleged sexual abuse.

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CAAF decided the Air Force case of United States v. Price, __ M.J. __, No. 16-0611/AF (CAAFlog case page) (link to slip op.), on Friday, March 3, 2017. In a short opinion the court concludes that the military judge did not elicit too much information about the appellant’s misconduct during the plea inquiry. CAAF affirms the findings and sentence and the decision of the Air Force CCA

Judge Ohlson writes for a unanimous court.

CAAF granted review to determine:

Whether the military judge abused his discretion by forcing appellant to admit to misconduct greater than was necessary for a provident plea.

Airman First Class (E-3) Price pleaded guilty at a special court-martial composed of a military judge alone to wrongfully using, possessing, and distributing various controlled substances. He was sentenced to confinement for four months, reduction to E-1, and a bad-conduct discharge.

In order to ensure that a plea of guilty at a court-martial is made voluntarily – and in light of the fact that military service involves all manner of coercion – a military judge must “conduct a detailed inquiry into the offenses charged, the accused’s understanding of the elements of each offense, the accused’s conduct, and the accused’s willingness to plead guilty.” Slip op. at 4 (quoting United States v. Perron, 58 M.J. 78, 82 (C.A.A.F. 2003)) (additional citation omitted) (emphasis in original).

When Price pleaded guilty, however, he offered only a “limited, generic recitation” of the factual basis for his plea (the things that made him guilty). Slip op. at 2. The military judge pressed for additional details over defense objection, eventually eliciting aggravating facts that were not perhaps totally necessary to a sufficient guilty plea.

But CAAF finds no error.

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Audio of today’s oral arguments at CAAF is available at the following links:

United States v. Erikson, No. 16-0705/AR (CAAFlog case page): Oral argument audio.

United States v. Ahern, No. 17-0032/AR (CAAFlog case page): Oral argument audio.

Audio of today’s oral arguments at CAAF is available at the following links:

United States v. Hukill, No. 17-0003/AR (CAAFlog case page): Oral argument audio.

United States v. Feliciano, No. 17-0035/AR (CAAFlog case page): Oral argument audio.

CAAF will hear oral argument in the Army case of United States v. Ahern, No. 17-0032/AR (CAAFlog case page), on Wednesday, March 1, 2017, after the oral argument in Erikson. The case presents a challenge to the Army CCA’s interpretation of Mil. R. Evid. 304(a)(2), which governs a person’s failure to deny an accusation of wrongdoing made while the person was under investigation. In an unpublished decision (previously discussed here) the CCA concluded that the rule is only triggered by an investigation when the accused is actually aware of the investigation. CAAF granted review to determine:

Whether the lower court erred when it held that the prohibition against using an admission by silence provided by Mil. R. Evid. 304(a)(2) is triggered only “when the accused is aware of” an investigation contrary to the plain language of the rule.

Lieutenant Colonel (O-5) Ahern was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of aggravated sexual assault of a child, aggravated sexual assault, assault consummated by a battery, indecent acts with a child, and child endangerment in violation of Articles 120, 128, and 134. The members sentenced Ahern to confinement for 17 years and six months and to a dismissal.

The charges alleged that Ahern sexually abused his step-daughter. After the girl made the allegations, law enforcement directed her to send a pretext text message to Ahern in an effort to elicit an incriminating statement. Ahern did not respond to the message. The defense admitted evidence of this exchange at trial. The girl’s mother also conducted a recorded pretext phone call with Ahern, again in an effort to elicit an incriminating statement. The mother confronted Ahern with the allegation during the call and he did not directly deny it. The prosecution admitted the call into evidence without objection from the defense. Then, in closing argument, the prosecution asserted that Ahern’s failure to deny the allegations in response to the text message and the phone call were evidence of his guilt. The defense did not object to the argument.

The CCA affirmed after concluding that it was not plain error for the prosecution to assert in closing argument that Ahern’s failures to deny the allegations during pretext communications facilitated by law enforcement were admissions by silence.

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CAAF will hear oral argument in the Army case of United States v. Erikson, No. 16-0705/AR (CAAFlog case page), on Wednesday, March 1, 2017, at 9:30 a.m. The court will review a military judge’s exclusion of evidence that the alleged sexual assault victim made a prior (and ostensibly false) allegation of sexual assault against a different soldier; evidence that was offered to show the alleged victim’s motive to fabricate the allegation against the appellant:

I. Whether the military judge erred in excluding evidence that the victim previously made a false accusation of sexual contact against another soldier.

II. CMCR Judges Larss G. Celtnieks and Paulette V. Burton are not statutorily authorized to sit on the Army Court of Criminal Appeals.

III. Even if CMCR Judges Larss G. Celtnieks and Paulette V. Burton are statutorily authorized to be assigned to the Army Court of Criminal Appeals, their service on both courts violates the appointments clause given their newly attained status as superior officers.

Specialist (E-4) Erikson was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of two specifications of sexual assault and one specification of adultery in violation of Articles 120 and 134. The members sentenced Erikson to confinement for three years, reduction to E-1, and a bad-conduct discharge. The convening authority disapproved one of the sexual assault specifications and approved the adjudge sentence. The Army CCA summarily affirmed.

In advance of trial Erikson’s defense counsel sought a ruling on the admissibility of the alleged victim’s prior allegation. The defense theory was that at the time of both the prior allegation and the allegation against Erikson the alleged victim was in a failing relationship and the allegation was made to “attempt[] to avoid or resolve conflicts by making false accusations.” App. Br. at 5 (quoting record). “The defense [also] claimed that SPC BG [the alleged victim] knew she would receive favorable treatment each time she reported the sexual incidents, which gave her a motive to fabricate each report.” Gov’t Div. Br. at 9. The other alleged perpetrator was acquitted of the allegation at a summary court-martial.

The military judge denied Erikson’s motion to admit evidence of the other allegation, concluding that “the ‘defense failed to establish any similarity of the assault involved with [the other alleged offender] in May 2013 to the facts of this case which allegedly occurred in 2014’ and that it would lead to a trial within a trial and the probative value would be substantially outweighed.” App. Br. at 6 (quoting record). The military judge based his ruling in part on Mil. R. Evid. 412, which is the military’s rape shield statue.

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CAAF will hear oral argument in the Army case of United States v. Feliciano, No. 17-0035/AR (CAAFlog case page), on Tuesday, February 28, 2017, after the oral argument in Hukill. The case presents two issues related to the appellant’s convictions of attempted sexual assault:

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.

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 and told Feliciano to stop, warning him 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.” App. Br. at 4 (quoting record). Upon hearing this Feliciano ceased sexual contact with the alleged victim (who later returned to her own barracks room where she spent the night with the other soldier).

The members were not instructed on the defense of voluntary abandonment, which “is raised when the accused abandons his effort to commit a crime under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.” App. Br. at 10 (citations omitted). The members were instructed on the defense of mistake of fact as to consent, however they were instructed that any mistake needed to be reasonable. That is the standard for a general intent crime, but an attempt requires specific intent.

The Army CCA affirmed without considering either of the issues before CAAF. I noted the CCA’s opinion in this post for its suggestion that it might be proper to prohibit an accused from referencing sex offender registration in an unsworn statement.

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