Audio of today’s oral arguments at CAAF is available at the following links:
Argument Preview: Considering the difference between being impaired and being unaware (and possibly revisiting Sager), in United States v. Brantley, No.17-0055/AR
CAAF will hear oral argument in the Army case of United States v. Brantley, No.17-0055/AR (CAAFlog case page), on Tuesday, April 25, 2017, after the argument in Ramos. A single issue questions 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:
Whether the government proved beyond a reasonable doubt that Appellant knew or reasonably should have known that SR was “otherwise unaware” of sexual contact.
Private First Class (E-3) Brantley 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) by touching the alleged victim’s breasts while she was otherwise unaware. The panel sentenced Brantley to confinement for 90-days, reduction to E-1, and a bad-conduct discharge. The convening authority approved the findings and sentence and the Army CCA summarily affirmed.
Brantley’s conviction was of a statute that prohibits sexual touching of “another person when the person knows or reasonably should know that the other person is asleep, unconscious, or otherwise unaware that the sexual act is occurring.” Article 120(b)(2). In United States v. Sager, __ M.J. __ (C.A.A.F. Mar. 21, 2017) (CAAFlog case page), CAAF concluded that the statute’s enumeration of “asleep, unconscious, or otherwise unaware” creates three separate theories under which an accused may be convicted, and the court reversed a decision by the NMCCA that had held the language creates only a single theory of criminal liability based upon unawareness (the three enumerations being ways that a person may be unaware).
The prosecution of Brantley doesn’t seem to involve the kind of error committed by the NMCCA in Sager. Rather, Brantley’s brief focuses on the trial counsel’s argument to the members (apparently without objection or correction by the military judge) that Brantley was guilty because the alleged victim was merely impaired (by a combination of alcohol and prescription drugs); a condition that is fundamentally different from being unaware and alone likely too vague to form a basis for criminal liability.
CAAF granted review in three cases last Thursday. The first involves an issue of unreasonable multiplication of charges:
No. 17-0049/MC. U.S. v. Tanner J. Forrester. CCA 201500295. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:
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.
Briefs will be filed under Rule 25.
The NMCCA’s opinion is available here and reveals that the appellant downloaded child pornography and then copied it to multiple devices, leading to the four separate specifications.
The second grant involves an issue similar to the issue in United States v. Sager, No. 16-0418/NA (CAAFlog case page) (argued on Tuesday, November 15, 2016):
No. 17-0055/AR. U.S. v. Mitchell L. Brantley. CCA 20150199. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:
WHETHER THE GOVERNMENT PROVED BEYOND A REASONABLE DOUBT THAT APPELLANT KNEW OR REASONABLY SHOULD HAVE KNOWN THAT SR WAS “OTHERWISE UNAWARE” OF SEXUAL CONTACT.
Briefs will be filed under Rule 25.
I don’t see an opinion on the Army CCA’s website (suggesting that the court summarily affirmed).
The final grant involves whether CAAF’s decision in Hills (our #3 Military Justice Story of 2016) applies in judge-alone trials – an issue currently pending before CAAF in two cases: United States v. Hukill, No. 20140939 (A. Ct. Crim. App. Aug. 16, 2016) (discussed here), rev. granted, __ M.J. __ (C.A.A.F. Nov. 23, 2016) (discussed here). United States v. Phillips, No. 38771 (A.F. Ct. Crim. App. Sep. 7, 2016) (discussed here), rev. granted, __ M.J. __ (C.A.A.F. Jan. 3, 2017) (discussed here):
No. 17-0087/AR. U.S. v. Jameson T. Hazelbower. CCA 20150335. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:
WHETHER, IN A COURT-MARTIAL TRIED BY MILITARY JUDGE ALONE, THE MILITARY JUDGE ABUSED HIS DISCRETION BY GRANTING THE GOVERNMENT’S MOTION TO USE THE CHARGED SEXUAL MISCONDUCT FOR MILITARY RULE OF EVIDENCE 413 AND 414 PURPOSES TO PROVE PROPENSITY TO COMMIT THE CHARGED SEXUAL MISCONDUCT.
II. WHETHER JUDGE PAULETTE V. BURTON AND JUDGE LARSS CELTNIEKS, JUDGES ON THE COURT OF MILITARY COMMISSION REVIEW, WERE STATUTORILY AUTHORIZED TO SIT ON THE ARMY COURT OF CRIMINAL APPEALS, AND EVEN IF THEY WERE STATUTORILY AUTHORIZED TO BE ASSIGNED TO THE ARMY COURT OF CRIMINAL APPEALS, WHETHER THEIR SERVICE ON BOTH COURTS VIOLATED THE APPOINTMENTS CLAUSE GIVEN THEIR NEWLY ATTAINED STATUS AS A SUPERIOR OFFICER.
Briefs will be filed under Rule 25 on Issue I only.
The Army CCA’s opinion is available here. The court applied Hukill and affirmed.