CAAFlog » October 2016 Term » United States v. Chikaka

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.

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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 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 granted review in two cases on the 12th.

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Audio of this week’s oral arguments at the NMCCA is available at the following links:

United States v. Hackler: Oral argument audio

United States v. Chikaka: Oral argument audio

This week at SCOTUS: The Court further extended the time for the Solicitor General to provide the requested response in Sullivan to March 30. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking three cases:

This week at CAAF: CAAF will hear oral argument in four cases this week:

Tuesday, February 23, 2016, at 9:30 a.m.:

United States v. Gay, Nos. 15-0742/AF & 15-0750/AF (CAAFlog case page)

Granted Issue: Whether the Air Force Court of Criminal Appeals erred by failing to remand appellant’s case for a hearing pursuant to United States v. Dubay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), to determine the facts surrounding appellant’s post-trial solitary confinement. See United States v. Ginn, 47 M.J. 236 (1997).

Certified Issue: Whether the Air Force Court of Criminal Appeals (AFCCA) abused its discretion and committed legal error by reaching its decision that Article 66, UCMJ, grants it the authority to grant sentence appropriateness relief for post-trial confinement conditions even though there was no violation of the Eighth Amendment or Article 55, UCMJ, in direct contravention of this court’s binding precedent.

Case Links:
AFCCA opinion
Blog post: The AFCCA finds that using solitary confinement to avoid violating Article 12 isn’t cruel and unusual, but deserves relief
Blog post: The Air Force JAG certifies two cases to CAAF
Blog post: CAAF specifies an additional issue in Gay
Appellant’s brief (granted issue)
Appellee’s (Government) brief (granted issue)
Cross-appellant’s (Government) brief (certified issue)
Cross-appellee’s brief (certified issue)

Followed by:

United States v. Atchak, No. 16-0054/AF (CAAFlog case page)

Issue: Whether the Air Force Court of Criminal Appeals erred in setting aside and dismissing the specifications of aggravated assault without authorizing the convening authority to order a rehearing for the lesser included offenses of assault consummated by a battery.

Case Links:
AFCCA opinion
Blog post: Two Air Force certifications, and a grant in a Marine Corps case
Appellant’s (Government) brief
Appellee’s brief

Wednesday, February 24, 2016, at 9:30 a.m.:

United States v. Caldwell, No. 16-0091/AR (CAAFlog case page)

Issue: Whether the military judge committed plain error when he instructed the panel using a negligence standard for maltreatment of a subordinate in violation of Article 93.

Case Links:
ACCA opinion (summary disposition)
Blog post: CAAF grants review of a Grostefon issue
Appellant’s brief
Appellee’s (Government) brief

Followed by:

United States v. Williams, No. 16-0053/AF (CAAFlog case page)

Issue (specified by the court): Whether the United States may file successive motions for reconsideration of a decision of the Court of Criminal Appeals, and thereby effectively extend the 60-day filing deadline for a certificate of review of such decision. See CAAF Rules of Practice and Procedure 19(b)(3); 22(b)(3); and 34(a).

Case Links:
AFCCA opinion
Blog post: Two Air Force certifications, and a grant in a Marine Corps case
Blog post: Three new CAAF grants
• Appellant’s (Government) brief
Appellee’s brief

This week at the ACCA: The Army CCA’s website is not accessible to the public (discussed here). However, I can report that the CCA will hear oral argument in two cases this week:

Wednesday, February 24, 2016 at 10 a.m.: United States v. Allen, No. 20130521

Issues:
I. [Whether t]he findings that the appellant committed sexual assault are factually and legally insufficient.
II. [Whether t]he military judge erred by not replaying testimony after a panel member requested a transcript of testimony and telling the panel members that replaying testimony would cause a delay.

Thursday, February 25, 2016 at 10 a.m.: United States v. Mitchell, No. 20150776

Issue: Whether the military judge erred in suppressing Appellee’s cell phone and the evidence from it by holding that unlocking his cell phone constituted a testimonial act and law enforcement re-initiated communication with Appellee in violation of the Edwards rule.

Note: This is a government appeal under Article 62.

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 will hear oral argument in two cases on Wednesday, February 24, 2016:

At 10 a.m.: United States v. Hackler (before the CCA en banc)

Case summary: A panel of members with enlisted representation sitting as a general court-martial convicted Appellant contrary to his pleas, of one specification of assault consummated by battery and one specification of adultery, in violation of Articles 128 and 134, UCMJ, 10 USC §§ 928 and 934 (2012). The members sentenced Appellant to reduction to pay grade E-1, ninety days hard labor without confinement, and a bad-conduct discharge. The convening authority approved the sentence as adjudged, and, except for the bad-conduct discharge, ordered the sentence executed.

Issue: Equal protection requires the law to treat similarly-situated individuals alike. The offense of adultery treats heterosexual and homosexual servicemembers disparately in two ways: 1) adultery applies only to heterosexuals by requiring sexual intercourse for criminal liability and punishment to attach; 2) adultery denies homosexuals the same marriage-fostering enforcement of fidelity afforded heterosexual servicemembers. The UCMJ has no equivalent offense for same-sex sexual relations. Does equal protection require setting aside appellant’s conviction for adultery?

At 1 p.m.: United States v. Chikaka

Case summary: A panel of members with enlisted representation sitting as a general court-martial convicted Appellant contrary to his pleas, of attempted abusive sexual contact, orders violations, wrongful sexual contact, abusive sexual contact, obstructing justice, indecent language, and adultery in violation of Articles 80, 92, 120, and 134, UCMJ, 10 U.S.C. §§ 880, 892, 920, and 934 (2012). The members sentenced the appellant to a reduction to pay grade E-1, twelve years’ confinement, forfeiture of all pay and allowances, and a dishonorable discharge. The Convening Authority approved the sentence as adjudged and, except for the punitive discharge, order it executed.

Issues:
I. Only relevant evidence is admissible. Over defense objection, the military judge admitted on the merits “operation restore vigilance,” a campaign plan to “fully operationalize the commandant’s guidance” from the heritage tour; a photo of the commandant posing with an accuser’s grandfather as sentencing evidence; and then allowed appellant’s commanding officer to testify that it was important for the members to adjudge a harsh sentence in this case. Did the military judge abuse his discretion?
II. Disjunctive pleading is improper because it creates ambiguity and may fail to inform an accused of what he must defend against. Here, the Government charged 18 specifications with alternate theories of liability, all pleaded disjunctively to create 65 possible theories of liability. Did the members’ general verdict of guilt without exceptions or substitutions create an ambiguous verdict that prevents this court from reviewing this case for factual sufficiency?