CAAFlog » October 2018 Term

Four years ago, in United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. 2015) (CAAFlog case page) (the #7 Military Justice Story of 2015), CAAF reversed an HIV-positive servicemember’s convictions of aggravated assault that were based on sexual activity without disclosure of HIV-positive status, because the court found that the chances of transmission of the virus were too remote to constitute a means likely to cause death or grievous bodily harm. But CAAF affirmed convictions of the lesser-included offense of assault consummated by a battery, reasoning that even though the participants had consented to the sexual acts, their consent was not “meaningful[ly] informed” because of their ignorance Gutierrez’s HIV-positive status. 74 M.J. at 68.

CAAF’s decision was puzzling in a number of ways, including the fact that consent was not in issue in Gutierrez’s trial (because a person cannot consent to an act likely to cause death or grievous bodily harm as a matter of law) and the fact that the requirement for meaningful informed consent was drawn from Canadian law, with then-Chief Judge Baker writing:

The offense of assault consummated by battery requires that the accused “did bodily harm.” MCM pt. IV, para. 54.b.(2). “‘Bodily harm’ means any offensive touching of another, however slight.” MCM pt. IV, para. 54.c.(1)(a). Here, Appellant’s conduct included an offensive touching to which his sexual partners did not provide meaningful informed consent. See R. v. Cuerrier, [1998] 2 S.C.R. 371, 372 (Can.) (“Without disclosure of HIV status there cannot be a true consent.”). He is therefore guilty of assault consummated by battery, and we affirm that offense as a lesser included offense of aggravated assault.

74 M.J. at 68. Yet while CAAF left open the possibility of a conviction of aggravated assault for having sex while HIV-positive (ruling only that the risk of transmission in Gutierrez’s case was too remote), its finding that the failure to disclose HIV-positive status forecloses any possibility of consent to the sexual activity created a different possibility: prosecution of such conduct as a sexual assault.

In 2019 that possibility became reality, as CAAF affirmed convictions of sexual assault by causing bodily harm (in the form of a non-consensual sexual act) that were based on the failure to disclose HIV-positive status to sexual partners, in United States v. Forbes, 78 M.J. 279 (C.A.A.F. Feb. 7, 2019) (CAAFlog case page).

Read more »

In United States v. Voorhees, 79 M.J. 5 (C.A.A.F. Jun. 27, 2019) (CAAFlog case page), a unanimous CAAF held that the military prosecutor’s personal attacks on defense counsel, personal attacks on the accused, expressions of personal opinion, bolstering, and vouching, amounted to grievous error, but that the error was nevertheless harmless.

Read more »

As a general rule, law enforcement must obtain a search warrant – or, in the military, a search authorization – prior to conducting a search, and the warrant must be based on probable cause. If that doesn’t happen, the remedy is exclusion of any evidence discovered.

Read more »

The #9 Military Justice Story of 2019 is CAAF’s holding in United States v. Kohlbek, 78 M.J. 326 (C.A.A.F. Feb. 25, 2019) (CAAFlog case page).

The Military Rules of Evidence share a majority of provisions with the Federal Rules of Evidence, but the two sets of rules are not identical. In particular, the military rules contain provisions that are not in the federal rules. One of those is Mil. R. Evid. 707, which prohibits admission of any evidence related to a polygraph examination:

Rule 707. Polygraph examinations

(a) Prohibitions. Notwithstanding any other provision of law, the result of a polygraph examination, the polygraph examiner’s opinion, or any reference to an offer to take, failure to take, or taking of a polygraph examination is not admissible.

(b) Statements Made During a Polygraph Examination. This rule does not prohibit admission of an otherwise admissible statement made during a polygraph examination.

The rule survived scrutiny by the Supreme Court two decades ago, in United States v. Scheffer, 523 U.S. 303 (1998). CAAF had held that the rule was unconstitutional as applied to an accused who took the stand, denied committing the offense, was accused by the prosecution of lying, and wanted to use a favorable polygraph result to support his own credibility. The Supreme Court reversed CAAF’s decision, holding that the rule served a valid purpose and does not unconstitutionally limit an accused’s right to present a defense because the rule “did not preclude [Scheffer] from introducing any factual evidence,” rather it “merely [prohibited] introducing expert opinion testimony to bolster his own credibility.” 523 U.S. 317.

CAAF revisited the rule in Kohlbek, where the accused wanted to use the fact of a polygraph examination (and the circumstances surrounding its administration) as evidence to support his claim that his confession was false.

Read more »

Today – in an order available here – the Supreme Court granted the Solicitor General’s petitions for certiorari in United States v. Briggs, No. 19-108, and United States v. Collins, No. 19-184. The Court consolidated the cases and allotted one hour for oral argument.

I discussed the petition in Briggs in this post. The petition directly challenges CAAF’s decision in United States v. Briggs, 78 M.J. 289 (C.A.A.F. Feb. 22, 2019) (CAAFlog case page), and indirectly challenges CAAF’s decision in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page) (the #3 Military Justice Story of 2018)

I discussed the petition in Collins in this post. The petition involves two CAAF summary decisions: United States v. Collins, 78 M.J. 415 (C.A.A.F. Mar. 12, 2019) (CAAFlog case page), and United States v. Daniels, No. 19-0345/AF (noted here). Both cases were Briggs trailers.

CAAF decided the Army case of United States v. Stout, 79 M.J. 168, No. 18-0273/AR (CAAFlog case page) (link to slip op.), on August 22, 2019. Reviewing pre-referral changes to the dates of the alleged acts, CAAF finds that the changes were authorized because Article 34(c) specifically permits such changes to conform the charges to the evidence in an Article 32 report. Accordingly, CAAF affirms the findings, sentence, and decision of the Army CCA.

Chief Judge Stucky writes for the court, joined by Judge Sparks. Judge Ryan concurs fully in the Chief Judge’s opinion, but writes separately to address the reach of Rule for Courts-Martial (R.C.M.) 603. Judge Maggs concurs in the judgment, but would hold that the changes were minor (and so permissible under any analysis). Judge Ohlson dissents, asserting that the change-limiting language of R.C.M. 603 applies despite the change-permitting language of Article 34.

Staff Sergeant (E-6) Stout was convicted of abusive sexual contact with a child, indecent liberties with a child, sodomy with a child, and assault with intent to commit rape, in violation of Articles 120, 125, and 134. All of the offenses involved alleged sexual acts with his step-daughter and, as initially charged, many of the specifications alleged that the acts occurred on certain dates in 2008 and 2009. At an Article 32 pretrial investigation the child testified that the acts occurred while the family lived in New York, from August 2008 until June 2009.

Stout initially pleaded guilty (in 2012) to numerous offenses in accordance with a pretrial agreement, but the Army CCA reversed the pleas (in 2014) and authorized a rehearing. Stout then changed course and contested the charges. At that point – and prior to the convening authority referring the charges for the rehearing – the prosecution made dozens of changes to the charges. Some were relatively insignificant, such as correcting misspellings, but others changed the dates of the alleged acts by as much as 300 days, removing the specific dates and replacing them with the entire time the family lived in New York: between on or about 7 August 2008 and on or about 3 June 2009.

Stout objected, claiming that the changes were major changes that, under R.C.M. 603(d), required preferral of new charges. The military judge overruled the objection and Stout was convicted (in 2015) and sentenced to confinement for 18 years, reduction to E-1, and a dishonorable discharge. Stout renewed his challenge on appeal, and CAAF granted review to decide:

Whether the Government made major changes to the time frame of three offenses, over defense objection, and failed to prefer them anew in accordance with Rule for Courts-Martial 603.

CAAF heard oral argument in December. After the argument, it ordered briefing of two additional issues:

I. Whether United States v. Brown, 4 C.M.A. 683, 16 C.M.R. 257 (1954), is not controlling in this case because the decision predates the promulgation of the applicable version of R.C.M. 603(d).

II. Whether the applicable version of R.C.M. 603(d) is contrary to and inconsistent with the applicable version of Article 34(c), UCMJ, and therefore void to the extent it prohibits major changes, before referral, to charges and specifications that were amended to “conform to the substance of the evidence contained in the report of the investigating officer.” Article 34(c), UCMJ, 10 U.S.C. § 834(c) (2012).

Chief Judge Stucky’s opinion for the court answers the last of those issues in the affirmative, holding that Article 34(c) permits the changes (though not explicitly stating that contrary language in R.C.M. 603(d) is void).

Read more »

Last month the Solicitor General filed a petition for certiorari in United States v. Briggs, No. 19-108. I discussed the petition in this post.

Yesterday Briggs responded, opposing the petition. The response is available here.

It begins:

The Petition relies upon a view of this Court’s jurisdiction over the Court of Appeals for the Armed Forces (CAAF) that the government has consistently rejected. On the merits, its principal objection is that CAAF misinterpreted the Uniform Code of Military Justice (UCMJ). As the government concedes, though, CAAF’s putative errors are limited not only to courts-martial, but to “a closed set of crimes committed before 2006.” Pet. 23. To explain why this case is nevertheless worthy of certiorari, the Petition invents nonexistent tension between CAAF’s rulings and those of the civilian courts, and it argues that the Eighth Amendment does not forbid imposition of the death penalty for rape in the military even though that important issue was not addressed by CAAF below; is not relevant to any forward-looking cases; and is in any event mooted by the UCMJ. Finally, and most importantly, the two CAAF rulings at issue were both correct. The Petition should therefore be denied.

In a petition filed yesterday and available here, the Solicitor General seeks Supreme Court review of CAAF’s summary affirmation of the Air Force CCA’s decision in United States v. Collins, 78 M.J. 415 (C.A.A.F. Mar. 12, 2019) (CAAFlog case page).

The petition in Collins presents the exact same question as the petition filed by the Solicitor General in Briggs (discussed here):

Whether the Court of Appeals for the Armed Forces erred in concluding—contrary to its own longstanding precedent—that the Uniform Code of Military Justice allows prosecution of a rape that occurred between 1986 and 2006 only if it was discovered and charged within five years.

The petition asks the Court to grant certiorari in both cases and consolidate them or briefing, for to hold the petition in Collins pending resolution of Briggs.

Update: The petition also includes CAAF’s summary disposition in United States v. Daniels, No. 19-0345/AF (noted here)

CAAF decided the Army case of United States v. Navarette, 79 M.J. 123, No. 19-0066/AR (CAAFlog case page) (link to slip op.), on August 1, 2019. Without explicitly holding that the Army CCA was wrong to deny the appellant’s request for an examination to determine his mental capacity to participate in the appellate process, a majority of CAAF remands the case to the Army court for further review of the request.

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

Specialist (E-4) Navarette was convicted of a single specification of wrongful distribution of cocaine and sentenced to confinement for 90 days, reduction to E-1, total forfeitures, and a bad-conduct discharge. His defense at trial was that he was entrapped into selling the drugs to impress a pretty girl, and his mental health played a role in the defense (though he did not claim lack of mental responsibility). On appeal, Navarette’s military appellate defense counsel questioned Navarette’s mental capacity to participate in the appellate process and asked for an inquiry into Navarette’s mental health.

A three-judge panel of the Army CCA denied the request for three reasons: first, documents showed that the appellant responded well to mental health treatment; second, Navarette’s counsel had not actually asserted that he is unable to participate in the appeal; and third, Navarette had personally submitted matters to the CCA pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) (holding that a detailed appellate defense counsel must inform the military appellate courts of any issues raised by an appellant, even if the counsel believes they are frivolous). CAAF then granted review of two issues:

I. Whether the Army Court erroneously denied appellant a post-trial R.C.M. 706 inquiry by requiring a greater showing than a non-frivolous, good faith basis articulated by United States v. Nix, 15 C.M.A. 578, 582, 36 C.M.R 76, 80 (1965).

II. Whether the Army Court erred when it held that submitting matters pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), was evidence of Appellant’s competence during appellate proceedings.

Judge Sparks and the majority, however, “opt not to directly answer the granted issues,” slip op. at 2, because of “two concerns surrounding Appellant’s medical condition that we feel should be more thoroughly addressed to ensure a proper Article 66, UCMJ, review,” slip op. at 6. Chief Judge Stucky dissents, observing that:

the majority instead remands to the lower court without deciding that it abused its discretion and without telling it what standard it should apply. As the issue was granted, briefed, and argued, I see no reason not to provide that guidance, lest we need to return to this issue in this case again, further elongating these proceedings.

Diss. op. at 7.

Read more »

CAAF decided the Air Force case of United States v. Hyppolite, II., 79 M.J. 161, Nos.19-0119/AF & 19-0197/AF (CAAFlog case page) (link to slip op.), on August 1, 2019. Reviewing a military judge’s ruling under Military Rule of Evidence 404(b) that allowed the prosecution to use charged offenses as evidence that the accused acted pursuant to a common plan or scheme, a majority of the court finds no error and it affirms the findings and sentence.

Judge Maggs writes for the court, joined by all but Judge Ohlson, who dissents.

Staff Sergeant (E-5) Hyppolite was charged with five violations of Article 120 for allegedly sexually assaulting four other Airmen over a two-year period. The first three specifications alleged that Hyppolite touched three victims’ genitals while they were asleep; the last two specifications alleged non-consensual sexual acts with an intoxicated victim (who was not necessarily asleep) on one occasion. Hyppolite’s defense counsel moved to sever the first thee specifications from the last two, highlighting the different facts of each set of allegations. A military judge disagreed, ruling instead that “each specification is probative as to the other specifications on the issue of a common plan on the part of the accused.” Slip op. at 3 (marks omitted). Hyppolite then elected to be tried by a military judge alone, and he was convicted of four of the five specifications: two of the alleged touchings of sleeping victims, and both of the alleged acts with the intoxicated victim. The military judge sentenced Hyppolite to confinement for seven years, reduction to E-1, total forfeitures, and a dishonorable discharge.

On appeal, a three-judge panel of the Air Force CCA reversed one of Hyppolite’s convictions (involving a sleeping victim) for factual insufficiency. It also held that the military judge’s common plan or scheme ruling was error because evidence of the alleged acts with the sleeping victims did not support the existence of a common plan for the alleged acts with the intoxicated victim, and vice versa. But the CCA concluded that the error was harmless with respect to the remaining convictions (one of the sleeping victim allegations, and both of the intoxicated victim allegations).

CAAF granted review of the CCA’s finding of harmlessness and then the Judge Advocate General of the Air Force cross-certified a challenge to the CCA’s finding of error:

Granted issue: Whether the military judge’s erroneous admission of evidence regarding Specifications 1, 2, and 3 as a common plan or scheme for Specifications 4 and 5 was harmless.

Certified issue: Did the Air Force Court of Criminal Appeals err when it found the military judge abused his discretion by ruling that the evidence regarding Specifications 1, 2, and 3 could be considered as evidence of a common plan or scheme for Specifications 4 and 5.

Judge Maggs’ majority opinion answers only the certified issue, concluding that two military judges – one who ruled on the motion and another who presided over the trial – did not abuse their discretion because “it was within the discretion of the two military judges to find a common plan or scheme based on the common factors among the specifications.” Slip op. at 11. Judge Ohlson, however, finds both error and prejudice, and would reverse the two convictions involving the intoxicated victim.

Read more »

CAAF decided the Army case of United States v. Frost, 79 M.J. 104, No. 18-0362/AR (CAAFlog case page) (link to slip op.), on July 30, 2019. Reviewing a military judge’s admission (over a defense objection) of a prior consistent statement by an alleged child victim of rape, a majority of CAAF finds error because the statement was made after the improper influence asserted by the defense. Considering that error in the context of otherwise-weak evidence of guilt, a smaller majority of the court concludes that it was not harmless. Accordingly, CAAF reverses the decision of the Army CCA and the findings and sentence, and it authorizes a rehearing.

Judge Ohlson writes for the court, joined by Chief Judge Stucky and Judge Ryan. Judge Sparks concurs in the finding of error but dissents from the finding of prejudice. Judge Maggs dissents.

Specialist (E-4) Frost was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of rape of a child. The child was Frost’s daughter – identified by the initials DF – born in 2007. Frost and DF’s mother – Ms. Moore – separated before DF was born, and they fought over custody of DF after she was born. A state court ultimately awarded custody to Ms. Moore (who lived in Georgia), with Frost allowed scheduled visits. One such visit occurred in the summer of 2013, in Texas (where Frost was stationed). Approximately one month after the visit, Ms. Moore and her boyfriend (Mr. Casey) reported to law enforcement that while sitting in the car “DF spontaneously made a statement to the effect of, ‘Daddy stuck his penis in my mouth.'” Slip op. at 2.

DF subsequently underwent a forensic interview in March 2014, in which she did not disclose any abuse by Frost. A second interview, in November 2014, also did not result in any allegation of abuse. Nevertheless, Frost was charged and an Article 32 preliminary hearing was conducted in April 2015. DF testified by telephone during the hearing but, again, did not disclose any abuse by Frost. After the hearing, Ms. Moore took DF to five sessions with a psychotherapist, Dr. Landry, in August 2015. According to Dr. Landry, DF told her that Frost “tried to put his pee-wee in my mouth.” Slip op. at 3. The following month, however, DF was interviewed by the prosecutors by telephone and she “once again stated that nothing sexual happened during the summer of 2013 with Appellant and that she did not tell her mother that anything did happen.” Slip op. at 3-4. “The court-martial proceeded nonetheless.” Slip op. at 4.

DF testified at trial in 2016 and said “that nearly three years earlier ‘my dad put his pee-pee in my mouth.’” Slip op. at 4. The defense impeached DF with her prior inconsistent statements (her earlier denials of abuse). The prosecution then called Dr. Landry, and the military judge allowed Dr. Landry to testify about DF’s September 2015 allegation of abuse on the basis that it was admissible under the medical diagnosis or treatment exception to the hearsay rule, Mil. R. Evid. 803(4). The defense objected but the Army CCA affirmed the military judge’s ruling admitting Dr. Landry’s testimony, and CAAF denied review of that issue. Slip op. at 4 n.3.

The prosecution also called Ms. Moore and Mr. Casey, both of whom testified that DF made the allegation of abuse in August 2013. The defense objected to that too, but the military judge admitted the statement (as repeated by both witnesses) as non-hearsay based on the rule for prior consistent statements, Mil. R. Evid. 801(d)(1)(B). In so doing, the military judge concluded that the defense claimed that Dr. Landry had improperly influenced DF, making DF’s statements to Ms. Moore and Mr. Casey admissible because they pre-dated Dr. Landry’s influence. The Army CCA affirmed that decision in a footnote, and CAAF granted review to determine:

Whether the military judge erred in admitting hearsay statements as prior consistent statements under Mil.R.Evid. 801(d)(1)(B)(i) where the defense theory posited the improper influence or motive preceded the allegedly consistent statements.

A majority of the court finds that the military judge was wrong because the “defense’s sole theory and line of approach . . . was that Ms. Moore, motivated by a desire to obtain sole custody of her children, exerted an improper influence on DF prior to DF’s August 24, 2013, remark [in the car].” Slip op. at 11.

Read more »

CAAF decided the Army case of United States v. English, 79 M.J. 116, No. 19-0050/AR (CAAFlog case page) (link to slip op.), on July 30, 2019. Considering a conviction of forcible rape where the charged force was the accused grabbing the alleged victim’s head with his hands, CAAF holds that because the Army CCA found the evidence insufficient to prove that specific force, the CCA was prohibited from affirming the conviction on an alternative basis. CAAF reverses that conviction and remands the case to the Army CCA for sentence reassessment.

Judge Ryan writes for a unanimous court.

Specialist (E-4) English was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of numerous offenses in connection with “a brutal and protracted sexual altercation with his ex-wife,” and he was sentenced to confinement for 23 years, reduction to E-1, and a dishonorable discharge. Slip op. at 2. One of the convictions was of the offense of forcible rape in violation of Article 120(a)(1) (2012). That offense has two elements: (1) that the accused committed a sexual act upon another person, and (2) that the accused did so with unlawful force. See ¶ 45.b.(1), Part IV, MCM (2016 ed.).

English was charged with committing the sexual act “by unlawful force to wit: grabbing her head with his hands.” (slip op. at 3 (quoting record). English’s ex-wife testified that English committed the sexual act, but she testified that she could not recall whether he grabbed her at all. Nevertheless, in closing arguments the prosecution “repeatedly emphasized that Appellant accomplished the penetration by grabbing the victim’s head with his hands,” while the defense argued “against th[at] characterization.” Slip op. at 3. The military judge convicted English as charged.

On review, in a published opinion that primarily addressed the military judge’s erroneous admission of a hearsay statement as a recorded recollection under Mil. R. Evid. 803(5), the Army CCA found that there was no evidence to prove that English committed the sexual act by grabbing his ex-wife’s head with his hands. The CCA did, however, find that “there was sufficient evidence to prove appellant committed the sexual act by unlawful force,” and so “the ACCA excepted the words ‘to wit: grabbing her head with his hands’ from the charge sheet and affirmed Appellant’s conviction based on the remaining language.” Slip op. at 3-4. CAAF granted review to determine whether the CCA may do that, with the following issue:

Whether the Army Court of Criminal Appeals can find the unlawful force, as alleged, factually insufficient and still affirm the finding based on a theory of criminality not presented at trial.

“The answer,” explains Judge Ryan, “is clearly no.” Slip op. at 2.

Read more »

Petition available here. The question presented is:

Whether the Court of Appeals for the Armed Forces erred in concluding—contrary to its own longstanding precedent—that the Uniform Code of Military Justice allows prosecution of a rape that occurred between 1986 and 2006 only if it was discovered and charged within five years.

Earlier this year, in United States v. Briggs, 78 M.J. 289 (C.A.A.F. Feb. 22, 2019) (CAAFlog case page), CAAF applied last term’s decision in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), and held that the 2006 amendment to the statute of limitations for the offense of rape was not retroactive. Accordingly, CAAF reversed Briggs’ rape conviction from 2014 based on an allegation dating to 2005.

CAAF’s clarification of the statute of limitations for rape in Mangahas was the #3 Military Justice Story of 2018.

In Briggs, the Air Force Appellate Government Division argued to CAAF that “Congress, in passing the 2006 amendment, intended not to change the law, but rather to codify the holding of Willenbring and clarify the correct statute of limitations for rape.” Gov’t Div. Br. at 18 (emphases in original) (discussed here). CAAF explicitly rejected the argument for two reasons:

First, the 2006 amendment to Article 43(a), UCMJ, was not limited to rape; it also eliminated the previous five-year period of limitations for unpremeditated murder. Congress therefore did not intend the 2006 amendment simply to maintain the status quo. Second, even if Congress believed that the amendment was codifying existing law with respect to the statute of limitations for rape, that belief alone would not imply that Congress intended for the amendment to apply retroactively. In such circumstances, Congress would have had no reason to consider the issue of retroactivity. And if Congress did not actually decide to make the statute apply retroactively, then the presumption of non-retroactivity should control.

Briggs, 78 M.J. at 294.

The cert. petition repeats that argument, along with some others such as:

even assuming that Congress designed a statute of limitations for military rape that turns on whether capital punishment for that crime is constitutionally permissible, Congress correctly determined that the Constitution does not foreclose capital punishment for rape in the military context.

Pet. at 17. Additionally, the petition claims that:

Allowing the CAAF’s flawed construction of Article 43 to remain in place would subvert the military’s concerted effort to eradicate sexual assault, erode confidence in the military-justice system, and fuel the impression that “nothing will happen to the[] perpetrator” of military rapes, all of which could further deter sexual-assault reporting and ultimately undermine military effectiveness.

Pet. at 23-24 (quoting Response Systems Panel report at 60) (modification in original).

The petition also challenges CAAF’s decision in Mangahas – even though certiorari was not sought in that case – with the assertion:

The CAAF erred in United States v. Mangahas, 77 M.J. 220 (2018), by abandoning that longstanding construction [of the statute of limitations for rape].

Pet. at 11.

CAAF decided the Army case of United States v. Coleman, 79 M.J. 100, No. 19-0087/AR (CAAFlog case page) (link to slip op.), on July 10, 2019. Reviewing for multiplicity in a case involving convictions of attempted murder (with a firearm) and of willfully discharging a firearm under circumstances to endanger human life, CAAF finds that the convictions are not multiplicious because each offense contains an element that the other does not.

Judge Ohlson writes for a unanimous court.

A general court-martial composed of a military judge alone convicted Private First Class (E-3) Coleman of numerous offenses, including one specification of attempted murder in violation of Article 80 (Specification 1 of Charge I), and one specification of willfully discharging a firearm under circumstances to endanger human life in violation of Article 134 (Specification of Charge VII). Both convictions related to Coleman firing a handgun at a car containing another soldier, that soldier’s fiancé, and the fiancé’s three-year old daughter. The Army CCA affirmed those convictions and CAAF granted review of a single issue:

Whether Specification 1 of Charge VII is multiplicious with Specification 1 of Charge I, as they are part of the same transaction.

Furthermore, when it granted review, CAAF specifically ordered that briefs be filed on only the issue of multiplicity and not on the related concept of unreasonable multiplication of charges (noted here).

Read more »

CAAF decided the Army case of United States v. Haynes, 79 M.J. 17, No. 18-0359/AR (CAAFlog case page) (link to slip op.), on July 2, 2019. A divided court reaches the narrow conclusion that the conduct of defense counsel at trial affirmatively waived the issue of credit for prior punishment (known as Pierce credit). Accordingly, CAAF affirms the decision of the Army CCA that denied credit in this case.

Chief Judge Stucky writes for the court, joined by Judges Ryan and Sparks. Judge Ohlson and Judge Maggs each write separate opinions that concur in the result (the denial of credit) but dissent from the finding of waiver.

Private (E-1) Haynes pleaded guilty to numerous offenses pursuant to a pretrial agreement. Two of those offenses were wrongful use of marijuana, and Haynes admitted that he smoked marijuana on an almost-daily basis in an effort to get kicked out of the Army. But in addition to his court-martial conviction for wrongful use of marijuana, Haynes also received nonjudicial (Article 15) punishment for wrongful use of marijuana in the same general time period. That raised the possibility that Haynes was punished twice – the first time by nonjudicial punishment and the second time by the court-martial – for a single offense.

Thirty years ago, in United States v. Pierce, CAAF’s predecessor explained that such double punishment, while not a violation of the Double Jeopardy clause of the Fifth Amendment or the similar protection in Article 44, “would violate the most obvious, fundamental notions of due process of law,” and so “an accused must be given complete credit for any and all nonjudicial punishment suffered: day-for-day, dollar-for-dollar, stripe-for-stripe.” 27 M.J. 367, 369 (C.M.A. 1989) (emphasis omitted). Ten years later, in United States v. Gammons, 51 M.J. 169, 183 (C.A.A.F. 1999), CAAF gave an accused four options regarding that credit: put the prior punishment into evidence at sentencing before members, raise it with the military judge alone, raise it with the convening authority (who, at the time, had unlimited power to reduce the sentence for that or any other reason), or not raise the issue of credit at all.

Haynes neither requested nor received any credit for his prior nonjudicial punishment at trial or when the convening authority acted. Instead, the issue was raised for the first time at the Army CCA. The CCA, however, found waiver, concluding that CAAF’s opinion in Gammons “requir[es] an accused to raise the issue of Pierce credit to either the court-martial or to the [convening authority] to avoid waiver as a matter of law.” United States v. Haynes, 77 M.J. 753, 756 (A. Ct. Crim. App. 2018). The CCA considered granting Haynes credit anyway (as part of its plenary review of the findings and sentence), but it determined that the facts of this case do not warrant relief despite the waiver. CAAF then granted review of two issues:

I. Whether an appellant is authorized to request Pierce credit for the first time at a Court of Criminal Appeals.

II. If the Army Court of Criminal Appeals erred in holding that the failure to request Pierce credit below constituted waiver, was its actual review of this issue under its article 66(c), UCMJ authority still sufficient?

In yesterday’s decision a majority of the court finds that the conduct of Haynes’ defense counsel at trial amounts to an affirmative waiver of the right to any credit for the nonjudicial punishment, with Chief Judge Stucky explaining that the majority does not reach – and so does not endorse – the question decided by the Army CCA (“whether Appellant also waived the issue of Pierce credit by operation of law,” slip op. at 5). Judge Ohlson and Maggs do not agree that the defense counsel’s conduct amounts to waiver, but they nevertheless agree that Haynes is not entitled to credit based on the record in this case.

Read more »