Argument Preview: Determining the reach of CAAF’s decision in Mitchell, in United States v. Robinson
CAAF will hear oral argument in the Air Force case of United States v. Robinson, No.17-0504/AF (CAAFlog case page), on Wednesday, January 24, 2018, after the argument in Blanks. Two granted issues challenge the admission of evidence obtained by military investigators from the appellant’s cell phone, based on the fact that the investigators requested the passcode to the phone from the appellant after he involved his right to counsel:
I. Whether the military judge abused his discretion by failing to suppress evidence obtained from Appellant’s cell phone.
II. Whether the Air Force Court erred in holding Appellant waived objections regarding investigators’ exceeding the scope of Appellant’s consent.
Last term, in the interlocutory case of United States v. Mitchell, 76 M.J. 413 (C.A.A.F. Aug. 30, 2017) (CAAFlog case page), CAAF held that because continued questioning of a suspect after he invokes his right to counsel violates the Fifth Amendment, the contents of a cell phone must be suppressed when military investigators request the passcode to decrypt the phone after the suspect requests an attorney. The decision was the #4 Military Justice Story of 2017.
Senior Airman (E-4) Robinson was convicted of communicating indecent language to a minor in violation of Article 120b, and sentenced to confinement for one month, reduction to E-1, and a bad-conduct discharge. The evidence admitted against Robinson included text messages extracted from his cell phone. Those messages were obtained after the investigators asked Robinson for the passcode to the phone. That request, however, came after Robinson informed the investigators that he had an attorney and invoked his right to remain silent.
Robinson both consented to a search of the phone and provided the passcode after that invocation, and his defense counsel moved to suppress the contents of the phone at trial.
Now Robinson seeks to apply CAAF’s reasoning in Mitchell to the circumstances of his case.
• AFCCA decision (76 M.J. 663)
• Blog post: CCA opinion analysis
• Blog post: CAAF grants review in related case
• Blog post: CAAF grants review in this case
• Appellant’s brief
• Appellee’s (A.F. Gov’t App. Div.) brief
• Appellant’s reply brief
• Amicus brief (supporting Robinson): Army Defense App. Div.
• Amicus brief (supporting Robinson): EFF, ACLU, ACLU of DC
• Blog post: Argument preview
CAAF granted review in two cases on Friday. The first is a Navy case:
No. 17-0480/NA. U.S. v. Raiden J. Andrews. CCA 201600208. 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:
THE LOWER COURT FOUND SEVERE PROSECUTORIAL MISCONDUCT. THEN IT AFFIRMED THE FINDINGS AND SENTENCE, GIVING ITS IMPRIMATUR TO THE PROSECUTORIAL MISCONDUCT IN APPELLANT’S CASE. DID THE LOWER COURT ERR?
Briefs will be filed under Rule 25.
The NMCCA’s opinion is available here. The CCA found that the trial counsel committed prosecutorial misconduct in the form of improper argument by calling the appellant a liar, mischaracterizing the appellant’s statements to NCIS, asserting that the defense counsel did not believe the appellant, and misstating the law. But, applying the plain error test – because “the civilian defense counsel did not contemporaneously object,” slip op. at 7, something that the Army court recently held constitutes waiver of any error – the CCA found the improper arguments to be harmless.
The second is an Air Force case that is a Mitchell (CAAFlog case page) trailer:
No. 17-0504/AF. U.S. v. Hank W. Robinson. CCA 38942. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:
I. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY FAILING TO SUPPRESS EVIDENCE OBTAINED FROM APPELLANT’S CELL PHONE.
II. WHETHER THE AIR FORCE COURT ERRED IN HOLDING APPELLANT WAIVED OBJECTIONS REGARDING INVESTIGATORS’ EXCEEDING THE SCOPE OF APPELLANT’S CONSENT.
Briefs will be filed under Rule 25.
CAAF grants review of an interlocutory Mitchell trailer (and is considering a petition for review in a similar post-trial case)
In the certified Army case of United States v. Mitchell, No. 17-0153/AR (CAAFlog case page), CAAF is considering the impact of investigators questioning a military suspect, after he invoked his right to remain silent and requested an attorney, in order to gain access to the suspect’s cell phone for a search. The case was argued at the Notre Dame Law School on Tuesday, April 4, 2017. It is one of just three remaining undecided cases argued during the October 2016 Term.
Back in June, in this post, I noted a pair of Air Force CCA decisions – one published and the other involving a Government appeal of a suppression ruling – that held that a “request for the passcode d[oes] not constitute interrogation in violation of the Fifth Amendment.” United States v. Robinson, 76 M.J. 663, 671, No. 38942, slip op. at 11 (A. F. Ct. Crim. App. May 15, 2017). See also United States v. Blatney, No. 2016-16, slip op. at 7 (A. F. Ct. Crim. App. May 22, 2017) (interlocutory appeal) (“In other words, whether agents or the suspect re-initiated communication only becomes relevant if the suspect ultimately communicated an incriminating statement to the agents.”).
The accused in Blatney (the interlocutory case) petitioned CAAF for review on June 14. Last Thursday CAAF granted review:
No. 17-0458/AF. U.S. v. Chad A. Blatney. CCA 2016-16. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:
WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION BY SUPPRESSING EVIDENCE OBTAINED FROM APPELLANT’S CELLULAR PHONE, WHERE LAW ENFORCEMENT REQUESTED THAT APPELLANT ENTER HIS PASSWORD TWICE TO DECRYPT THE PHONE AND DISABLE SECURITY AFTER HE INVOKED HIS RIGHT TO COUNSEL.
Pursuant to Rule 19(a)(7)(A), no further pleadings will be file.
The post-trial appellant in Robinson petitioned CAAF for review on July 12, 2017. That petition is still pending.
The Air Force CCA considers two requests for cell phone passcodes (after invocations of rights) ahead of CAAF’s decision in Mitchell
CAAF is considering the impact of questioning of a military suspect, after he invoked his right to remain silent and requested an attorney, in order to give investigators access to the suspect’s cell phone for a search, in the certified Army case of United States v. Mitchell, No. 17-0153/AR (CAAFlog case page). The case was argued at the Notre Dame Law School on Tuesday, April 4, 2017.
While we await CAAF’s decision, the Air Force CCA decided a closely-analogous issue in two cases, one post-conviction and the other an interlocutory prosecution appeal under Article 62.