CAAFlog » October 2018 Term

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

United States v. Coleman, No. 19-0087/AR (CAAFlog case page): Oral argument audio (wma) (mp3)

United States v. Hyppolite, II., Nos.19-0119/AF & 19-0197/AF (CAAFlog case page): Oral argument audio (wma) (mp3)

The audio is also available on our oral argument audio podcast.

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

United States v. English, No. 19-0050/AR (CAAFlog case page): Oral argument audio (wma) (mp3)

United States v. Navarette, No. 19-0066/AR (CAAFlog case page): Oral argument audio (wma) (mp3)

The audio is also available on our oral argument audio podcast.

CAAF decided the Army case of United States v. Harris, __ M.J. __, No.18-0364/AR (CAAFlog case page) (link to slip op.), on May 16, 2019. The court finds that the military judge rightly denied 291 days of credit for civilian pretrial confinement, affirming the published decision of the Army CCA.

Judge Ryan writes for a unanimous court.

In 2013, Staff Sergeant (E-6) Harris was arrested by Florida authorities and charged with 44 counts of possessing child pornography. He was released on bond pending trial. He absconded, fleeing to Cambodia.

Eventually, Harris surrendered and was confined by Florida authorities (not at the request of military authorities), and Florida added a felony charge of failure to appear. Ultimately, however, the state prosecutor elected not to pursue a child pornography conviction because the state was unable to secure a key witness. Instead, Harris pleaded no contest to the failure to appear and was sentenced to confinement for 364 days. But by that point, Harris had spent 655 days in pretrial confinement; 291 days more than his state sentence.

After the state completed the prosecution, the Army took its turn. Harris was charged with possession of child pornography and desertion, eventually pleading guilty to both and receiving a sentence of confinement for five years, reduction to E-1, and a bad-conduct discharge. The military judge ordered that Harris receive 191 days of confinement credit for time spent in military pretrial confinement, but he denied Harris’ request for an additional 291 days of credit for the time spent in civilian pretrial confinement in excess of the state sentence. The military judge did so after concluding that those days of confinement were for the charge of failure to appear that occurred after Harris’ desertion and possession of child pornography, meaning that they were ineligible for credit under the applicable DoD regulation. On appeal, the Army CCA agreed with the military judge. CAAF then granted review of one issue:

Whether the Army court erroneously affirmed the military judge’s denial of 291 days of Allen credit for pretrial confinement Appellant served in a civilian confinement facility awaiting disposition of state offenses for which he was later court-martialed.

Judge Ryan’s opinion for the unanimous CAAF is short and to the point, concluding:

The record provides adequate support for [the military judge’s] determination. First, Appellant was only placed in pretrial confinement after he fled to Cambodia while out on bond and was charged with failure to appear after his return to the United States. Second, Appellant was not confined for the child pornography charges prior to his flight to Cambodia. It seems perfectly accurate to say that Appellant was placed in confinement because he fled the country and failed to appear at his hearing and not because he possessed child pornography. The record thus supports the military judge’s finding that Appellant’s confinement in Florida was “for” his failure to appear. Having determined that the military judge’s factual finding was not clearly erroneous, we find no error in his application of the law to that factual finding. The denial of the 291 days of civilian pretrial confinement credit aligns squarely with the plain language of DoDI 1325.07 encl. 2, para. 3.c.

Slip op. at 6 (citation omitted).

Case Links:
ACCA opinion (78 M.J. 521)
Blog post: CAAF grants review
Appellant’s brief
Appelllee’s (Gov’t Div.) brief
Appellant’s reply brief
• Oral argument audio (wma)(mp3)
CAAF opinion
Blog post: Opinion analysis

This week at SCOTUS: A new cert. petition (available here) was filed in Cooper v. United States, No. 18-423, on May 13, 2019. In United States v. Cooper, 78 M.J. 283 (C.A.A.F. Feb. 12, 2019) (CAAFlog case page), a nearly-unanimous court found finds that the failure to request individual military defense counsel after a military judge discusses the right to make such a request with the accused is a knowing and intentional waiver of the right. The question presented in the petition is:

Whether the United States Court of Appeals for the Armed Forces exceeded its statutory authority under 10 U.S.C. § 867(c) when it took action with respect to a matter of fact.

The petition asserts:

The CAAF reversed the lower court because it found Cooper knowingly and intelligently waived his right to IMC. (Pet. App. 4a, 16a.) But what a defendant knew or understood at any given moment in time is a historical fact: making a state of mind determination calls for a “recital of external events and the credibility of their narrators.” Thompson v. Keohane, 516 U.S.99, 110 (1995) (internal quotations omitted).

The CAAF took action on a matter of fact—an authority specifically withheld from CAAF and provided to the NMCCA. Compare 10 U.S.C. § 866(c) with 10 U.S.C. §867(c). In exercising its authority under 10 U.S.C. § 866(c), the NMCCA found, as fact, that Cooper did not make a knowing and intelligent waiver of his right to IMC. Without so much as a declaration that this finding was clear error, the CAAF disagreed.

Pet at 12.

Additionally, the Solicitor General requested and has received an extension of time – until June 22, 2019 – to seek certiorari of CAAF’s decision in United States v. Briggs, 78 M.J. 289 (C.A.A.F. Feb. 22, 2019) (CAAFlog case page).

Finally, the cert. petition in Hale was distributed for conference on May 30, 2019.

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 infour cases this week:

Tuesday, May 21, 2019, at 9:30 a.m.:

United States v. English, No. 19-0050/AR (CAAFlog case page)

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.

Case Links:
ACCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Appellant’s reply brief

Followed by:

United States v. Navarette, No. 19-0066/AR (CAAFlog case page)

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.

Case Links:
ACCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Appellant’s reply brief

Wednesday, May 22, 2019, at 9:30 a.m.:

United States v. Coleman, No. 19-0087/AR (CAAFlog case page)

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

Case Links:
ACCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Appellant’s reply brief

Followed by:

United States v. Hyppolite, II., Nos.19-0119/AF & 19-0197/AF (CAAFlog case page)

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.

Case Links:
AFCCA opinion
Blog post: CAAF grants review
Blog post: JAG cross-certifies
Granted Issue: Appellant’s brief
Granted Issue: Appellee’s (Gov’t Div.) brief (granted issue
Certified Issue: Cross-Appellant’s (Gov’t Div.) brief
Certified Issue: Cross-Appellee’s brief
Certified Issue: Cross-Appellant’s (Gov’t Div.) reply brief

This week at the ACCA: The Army CCA’s website shows no scheduled oral arguments.

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 website shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments. 

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 a rape conviction from 2014 based on an allegation dating to 2005.

The Solicitor General has received an extension of time – until June 22, 2019 – to seek certiorari of CAAF’s decision. In a motion filed on May 10 and available here, the SG asserted:

The court [CAAF] stated that, under its decision in Mangahas, the UCMJ at the time of respondent’s offense in 2005 “established a five-year period of limitations,” id. at 5a, and the court concluded that the 2006 amendment to the UCMJ expressly eliminating any limitations period for rape charges did not apply, id. at 6a-10a. The court viewed its precedent to require treating the issue as a question of retroactivity; applied presumptions disfavoring the amendment’s application; and refused to find those presumptions overcome. See ibid. The court rejected the government’s contention that applying the 2006 amendment would not actually be a “‘retroactive’ 5 application of the law because the 2006 amendment did not attach any new legal obligations on” respondent, as well as its contention that Congress intended the 2006 amendment to apply to cases like respondent’s because it was simply codifying the CAAF’s then-extant decisions in Stebbins and Willenbring, id. at 8a-10a. The CAAF also rejected the government’s contention that respondent had relinquished the limitations defense by failing to raise it at trial. Id. at 10a-12a.

CAAF decided the Air Force case of United States v. Meakin, __ M.J. __, No. 18-0339/AF (CAAFlog case page) (link to slip op.), on May 7, 2019. Considering the appellant’s indecent online communications with others (one of whom was an undercover law enforcement agent), the court holds that the communications were obscene speech that is not protected by the First Amendment, that they are not protected by any other liberty interest, and that the unique nature of the offense of conduct unbecoming an officer and a gentleman defined by Article 133 provides a “more exacting standard of conduct [that] can be traced back at least to the days of knighthood where knights were held to a higher standard of conduct than their fellow countrymen in the Court of Chivalry.” Slip op. at 13 (marks and citation omitted). Accordingly, CAAF affirms the two charges and seventeen specifications of conduct unbecoming an officer and a gentleman, in violation of Article 133, and the sentence of confinement for 19 months and 15 days, total forfeitures, and a dismissal.

Judge Ryan writes for a unanimous court.

CAAF granted review of one issue:

Whether Appellant’s conviction for engaging in anonymous, private, and consensual communications with an unknown partner(s) in the privacy of his home was legally sufficient.

Lieutenant Colonel (O-5) Meakin was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of seventeen specifications of conduct unbecoming an officer and a gentleman, and sentenced to confinement for 20 months, total forfeitures, and a dismissal. The convening authority reduced the confinement by 15 days. Meakin’s convictions were based on his online chats with unidentified individuals about sexual fantasies involving children. Separate from his court-martial prosecution, Meakin also pleaded guilty in federal court to knowingly accessing child pornography.

Meakin argued at the court-martial that the charged violations of Article 133 must be dismissed because his communications were private and protected by the First Amendment, and Meakin renewed that argument on appeal before the Air Force CCA and at CAAF. It is thoroughly rejected.

Read more »

Last month CAAF heard oral argument on whether to grant a writ of mandamus to Army Major Hasan – who was sentenced to death for 13 specifications of murder and 32 specifications of attempted murder (the #2 Military Justice Story of 2013) – and then CAAF summarily denied the request. Last week CAAF denied a second requested writ:

No. 19-0053/AR. Nidal M. Hasan, Petitioner v. United States Army Court of Criminal Appeals, Respondent and United States, Real Party in Interest. CCA 20130781. Appellate defense counsel petitioned this Court for extraordinary relief in the nature of a writ of mandamus, seeking access to matters that were sealed by the military judge at trial as being privileged between Major Hasan and his standby counsel.[1] In two decisions, the United States Army Court of Criminal Appeals denied appellate defense counsel access to these sealed privileged materials because appellate defense counsel admitted that Major Hasan had not authorized them to review those documents. United States v. Hasan, No. ARMY 20130781 (A. Ct. Crim. App. July 6, 2018) (order); United States v. Hasan, No. ARMY 20130781 (A. Ct. Crim. App. Oct. 16, 2018) (order).

To prevail on a writ of mandamus, the petitioner must show that: “(1) there is no other adequate means to attain relief; (2) the right to issuance of the writ is clear and indisputable; and (3) the issuance of the writ is appropriate under the circumstances.” Hasan v. Gross, 71 M.J. 416, 418 (C.A.A.F. 2012) (citing Cheney v. United States Dist. Court for D.C., 542 U.S. 367, 380-81 (2004)). Appellate defense counsel failed to establish (2).

We find unpersuasive appellate defense counsel’s argument that issuance of the writ is clear and indisputable under Rule for Courts-Martial 1103A. Although that rule does not except attorney-client privileged material from its ambit, neither does it include it. On consideration of the petition and the briefs of the parties, as appellate defense counsel failed to establish a clear and indisputable right to the writ it is ordered that the petition is denied.

[1] Although captioned as Hasan v. United States Army Court of Criminal Appeals, it appears that Major Hasan has not authorized this petition, as he has not waived his attorney-client privilege to these materials.

Additionally, on Monday CAAF ordered supplemental briefs in the Army case of United States v. Stout, No. 18-0273/AR (CAAFlog case page):

No. 18-0273/AR. U.S. v. Norman R. Stout. CCA 20120592. On consideration of the briefs of the parties on the issue granted on August 6, 2018, and oral argument held on December 4, 2018, it is ordered that the parties file supplemental briefs on the following 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).

The briefs of the parties shall be filed concurrently within 15 days of the date of this order.

CAAF originally granted review of one issue questioning whether changes to the time frame of three specifications were proper, and it heard oral argument on December 4, 2018.

CAAF decided the certified Marine Corps case of United States v. Perkins, __ M.J. __, No. 18-0365/MC (CAAFlog case page) (link to slip op.), on April 23, 2019. Selectively reading Mil. R. Evid. 311 (which codifies various rules for evidence obtained as the result of an unlawful search or seizure), a majority of the court holds that Mil. R. Evid. 311(c)(3)(B) does not mean what it says, repudiating the recent unanimous decision in United States v. Hoffmann, 75 M.J. 120 (C.A.A.F. 2016) (CAAFlog case page), that applied the rule as written, and reinvigorating the not-quite-unanimous United States v. Carter, 54 M.J. 414, 421 (C.A.A.F. 2001), that held that “the phrase ‘substantial basis’ has different meanings, depending on the issue involved.” Accordingly, assuming that the search authorization in this case was issued without a substantial basis for finding probable cause, CAAF nevertheless applies the good faith exception even though Mil. R. Evid. 311(c)(3)(B) requires more, affirming the published decision of the Navy-Marine Corps CCA.

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

The Judge Advocate General of the Navy certified two issues, both on behalf of the defense:

I. Whether this Court’s holding in United States v. Carter as applied by the Navy-Marine Corps Court of Criminal Appeals in this case, instead of the plain reading of MRE 311(c) this Court applied in United States v. Hoffman, controls in analyzing the applicability of the good faith exception to the exclusionary rule.

II. Whether the military judge erred in denying a defense motion to suppress evidence obtained from a search of Appellant’s home.

Sergeant (E-5) Perkins was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of conspiracy to commit larceny and violation of a general order, and sentenced to reduction to E-1 and a bad-conduct discharge. The conspiracy conviction was supported by evidence of stolen military property found in the garage of Perkins’ on-base home. CAAF’s review focuses on the search authorization that gave military investigators access to that garage.

Perkins was in a relationship with a woman who alleged to military law enforcement that Perkins extorted her with nude photos and videos taken without her consent. She told military investigators that she never actually saw Perkins take a picture or video of her, but she said she once saw him use his cell phone during sexual activity and she also claimed that he had other electronic devices in his home capable of storing pictures and videos. Based on that information, and knowing that Perkins was out of town and had his cell phone with him, military investigators sought and received a search authorization to search Perkins’ home for other devices. Perkins’ commanding officer issued the authorization and agents searched Perkins’ home where they found no illicit pictures or videos, but instead found military property that eventually led to Perkins’ conviction of the conspiracy and orders violation.

At trial, Perkins moved to suppress the evidence seized from his home on the basis that the search authorization lacked probable cause, was unconstitutionally vague, and was insufficiently particular. The military judge denied the motion. On appeal, however, the Navy-Marine Corps CCA agreed with Perkins that there was no probable cause to search his home, concluding (in a published opinion) that there was no substantial basis for the commander who authorized the search to conclude that there was a fair probability that investigators would find illicit images or videos in the house. In particular, the CCA found that the woman’s allegation of extorsion “did not provide probable cause to search [Perkins’] home.” United States v. Perkins, 78 M.J. 550, 557 (N-M Ct. Crim. App. 2018) (link to slip op.). Nevertheless, the CCA affirmed admission of the evidence by applying the good faith exception.

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. Exclusion is a judicially-created rule in the civil courts but it is codified for courts-martial as Mil. R. Evid. 311. Section III of the Military Rules of Evidence actually codifies a wide variety of judge-made law regarding search and seizure (unlike the Federal Rules of Evidence, which do not contain similar codification), and the military rules include many military-specific applications.

The civil courts also recognize – and the military rules codify – a good faith exception to the exclusionary rule based on the conclusion that there is no justification for the practical cost of excluding evidence of guilt when a law enforcement officer “is acting as a reasonable officer would and should act in similar circumstances.” United States v. Leon, 468 U.S. 897, 920 (1984). See also Mil. R. Evid. 311(c)(3). In other words, because the purpose of excluding unlawfully-obtained evidence is to incentivize law enforcement to follow the law, if law enforcement got a warrant and reasonably relied on the warrant, but the warrant was flawed, then law enforcement acted in good faith and there is no bad conduct to be deterred by excluding the evidence.

The good faith exception codified in Mil. R. Evid. 311(c)(3) applies only when three conditions are met:

(A) the search or seizure resulted from an authorization to search, seize or apprehend issued by an individual competent to issue the authorization under Mil. R. Evid. 315(d) or from a search warrant or arrest warrant issued by competent civil authority;

(B) the individual issuing the authorization or warrant had a substantial basis for determining the existence of probable cause; and

(C) the officials seeking and executing the authorization or warrant reasonably and with good faith relied on the issuance of the authorization or warrant. Good faith is to be determined using an objective standard.

That second requirement, as written, doesn’t involve the officer conducting the search or seizure. Applying the plain language of Mil. R. Evid. 311(c)(3)(B), if an authorization is invalid and if there was no substantial basis for probable cause to issue it in the first instance, then the good faith exception does not apply no matter what the executing officer thought. That’s different from the test established by the Supreme Court in Leon.

CAAF, however, abandoned a plain-language application of Mil. R. Evid. 311(c)(3) nearly 20 years ago, in United States v. Monroe, 52 M.J. 326, 332 (C.A.A.F. 2000). In that case, and with little discussion, CAAF applied the good faith exception as envisioned by the Supreme Court in Leon rather than as set forth in Mil. R. Evid. 311(c)(3). The following year, in Carter, CAAF explained why it did that:

[W]e conclude that Mil. R. Evid. 311(b)(3) [later moved to the current (c)(3)] does not establish a more stringent rule than Leon did for civilian courts. The first prong (a search warrant or search authorization issued by competent authority) is identical to the civilian rule. The second prong addresses the first and third exceptions noted in Leon, i.e., the affidavit must not be intentionally or recklessly false, and it must be more than a “bare bones” recital of conclusions. It must contain sufficient information to permit the individual executing the warrant or authorization to reasonably believe that there is probable cause. The third prong addresses the second and fourth exceptions in Leon, i.e., objective good faith cannot exist when the police know that the magistrate merely “rubber stamped” their request, or when the warrant is facially defective.

Carter, 54 M.J. at 421. Put differently, in Carter CAAF held that Mil. R. Evid. 311(c)(3) is merely redundant with Supreme Court precedent, even though it is worded differently. Only Judge Sullivan expressed concern with that approach, decrying “the majority’s tortured construction of Mil. R. Evid. 311(b)(3).” 54 M.J. at 423 (Sullivan, J. concurring). He did not suggest following the rule as written, however, but instead quoted the 1992 concurring opinion of Judge Cox that “it is time to de-Manualize these provisions because people keep trying to ‘apply’ them, thinking they are rules.” 54 M.J. at 424 (quoting United States v. Lopez, 35 M.J. 35, 45 n.3 (C.A.A.F. 1992) (Cox, J. concurring)).

Nevertheless, Mil. R. Evid. 311(c)(3) remained a rule – though not one CAAF was willing to actually follow – until Hoffmann, where then-Judge Stucky wrote for a unanimous CAAF (that included Senior Judge Lamberth of the United States District Court for the District of Columbia, who sat by designation), distinguished Mil. R. Evid. 311(b)(3) as the military good faith exception, and applied it as written to suppress child pornography due to the absence of a substantial basis for finding probable cause for the search. 75 M.J. at 128. By recognizing Mil. R. Rvid. 311(c)(3) as the military good faith exception, Hoffmann seemingly reversed the holding of Carter that only the judge-made rule from Leon applies.

Now, with its opinion in Perkins, CAAF reconciles Hoffmann and Carter, unequivocally disregards the rule as written, and concludes that “the NMCCA properly followed our decision in United States v. Carter, 54 M.J. 414 (C.A.A.F. 2001), when applying M.R.E. 311(c)(3).” Slip op. at 2.

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Audio of today’s oral argument at CAAF is available on CAAF’s website at the following links:

United States v. Rodriguez, No.18-0350/CG (CAAFlog case page): Oral argument audio (wma mp3)

The audio is also available on our oral argument audio podcast.

Audio of yesterday’s oral arguments at CAAF is available on CAAF’s website at the following links:

United States v. Gonzales, No. 18-0347/AR (CAAFlog case page): Oral argument audio (wma mp3)

United States v. Haynes, No. 18-0359/AR (CAAFlog case page): Oral argument audio (wma mp3)

The audio is also available on our oral argument audio podcast.

This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court, where I’m tracking one case:

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

Tuesday, April 23, 2019, at 9:30 a.m.:

United States v. Gonzales, No. 18-0347/AR (CAAFlog case page)

Issue: Whether aggravated sexual contact of a child is a lesser included offense of rape of a child.

Case Links:
ACCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appelllee’s (Gov’t Div.) brief
Appellant’s reply brief

Followed by:

United States v. Haynes, No. 18-0359/AR (CAAFlog case page)

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?

Case Links:
ACCA opinion (77 M.J. 753)
Blog post: CAAF grants review
Appellant’s brief
Appelllee’s (Gov’t Div.) brief
Appellant’s reply brief

Wednesday, April 24, 2019, at 9:30 a.m.:

United States v. Rodriguez, No.18-0350/CG (CAAFlog case page)

Issue: Whether United States v. Orben, which established what the government must show to prove intent for indecent liberties under Article 134 (the precursor to Article 120b), applies to the intent element of Article 120b(c), sexual abuse of a child.

Case Links:
CGCCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appelllee’s (Gov’t Div.) brief
Appellant’s reply brief

This week at the ACCA: The next scheduled oral argument at the Army CCA is on April 30, 2019.

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 website shows no scheduled oral arguments.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on May 2, 2019.

CAAF decided the Army case of United States v. McDonald, __ M.J. __, No. 18-0308/AR (CAAFlog case page) (link to slip op.), on Wednesday, April 17, 2019. The court concludes that the mens rea (mental state) for the offense of sexual assault by causing bodily harm in violation of Article 120(b)(1)(B) (2012), where the bodily harm is a nonconsensual sexual act, is the general intent to commit the sexual act.

Chief Judge Stucky writes for a unanimous court.

CAAF granted review of a single issue:

Whether the military judge erred in instructing the panel that a negligent mens rea was sufficient to make otherwise lawful conduct criminal.

Mens rea was the #8 Military Justice Story of 2017 because of a series of CAAF decisions involving the mental state required to violate the UCMJ. McDonald (and a second case presenting substantially the same issue) involves Article 120(b)(1)(B) (2012), which prohibited sexual assault by causing bodily harm, and the definition of bodily harm included a nonconsensual sexual act or sexual contact. Congress repealed that offense in Section 5430 of the Military Justice Act of 2016 (that became effective on January 1, 2019), but it replaced it with a new-but-similar Article 120(b)(2)(A) that prohibits “commit[ting] a sexual act upon another person without the consent of the other person.”

In neither offense, however, did Congress identify a specific mens rea. Put differently, Congress didn’t say whether – to be guilty of the offense – an accused must actually know that the other person didn’t consent (actual knowledge), or recklessly disregard evidence of lack or consent (recklessness), or just fail to discover that the other person didn’t consent (negligence). Congress also could have said (but didn’t say) that the accused’s knowledge of anything doesn’t matter at all (strict liability), or that the accused need only know that he was committing the physical acts constituting the offense (general intent).

CAAF granted review in McDonald back in September (noted here), and since then two CCAs have issued decisions addressing this issue. First, in United States v. Patrick, __ M.J. __ (N.M. Ct. Crim. App. Dec. 11, 2018) (link to slip op.), the NMCCA held that the applicable mens rea is found in the definition of sexual act which required (under the facts of that case) an intent to abuse, humiliate, harass, or degrade. A month later, in United States v. Peebles, __ M.J. __, No. 20170044 (A. Ct. Crim. App. Jan 10, 2019) (link to slip op.), the Army CCA rejected the NMCCA’s reasoning and held that “recklessness is the mens rea applicable to the element of non-consent in Article 120(b)(l)(B), where the bodily harm is alleged to be the sexual act itself.”

Now, with its decision in McDonald, CAAF resolves the question in a way more similar to the decision of the NMCCA than the ACCA. Chief Judge Stucky writes that “Congress clearly intended a general intent mens rea for Article 120(b)(1)(B).” Slip op. at 4. That means that:

As a general intent offense, sexual assault by bodily harm has an implied mens rea that an accused intentionally committed the sexual act. No mens rea is required with regard to consent, however.

Slip op. at 8 (citation omitted).

Read more »

Audio of this week’s oral arguments before CAAF – at the University of Kansas School of Law in Lawrence, Kansas, and at Fort Leavenworth, Kansas – is available on CAAF’s website at the following links:

United States v. Frost, No. 18-0362/AR (CAAFlog case page): Oral argument audio (wma)(mp3)

United States v. Harris, No.18-0364/AR (CAAFlog case page): Oral argument audio (wma)(mp3)

The audio is also available on our oral argument audio podcast.

This week at SCOTUS: The SG waived the right to respond to the cert. petition in King. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking one case:

This week at CAAF: CAAF will hear oral argument in two cases this week. Both are Project Outreach arguments:

Tuesday, April 9, 2019, at 10:30 a.m., the University of Kansas School of Law in Lawrence, Kansas:

United States v. Frost, No. 18-0362/AR (CAAFlog case page)

Issue: 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.

Case Links:
ACCA opinion
Appellant’s brief
Appelllee’s (Gov’t Div.) brief
Appellant’s reply brief

Wednesday, April 10, 2019, at 9 a.m., at Fort Leavenworth, Kansas:

United States v. Harris, No.18-0364/AR (CAAFlog case page)

Issue: Whether the Army court erroneously affirmed the military judge’s denial of 291 days of Allen credit for pretrial confinement Appellant served in a civilian confinement facility awaiting disposition of state offenses for which he was later court-martialed.

Case Links:
ACCA opinion (78 M.J. 521)
Appellant’s brief
Appelllee’s (Gov’t Div.) brief
Appellant’s reply brief

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Friday, April 12, 2019, at 10 a.m.:

United States v. Banks, No. 20170261

Issue: Whether the court-martial lacked personal jurisdiction over appellant.

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 website shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

On Tuesday, just six days after hearing oral argument, CAAF summarily denied Major Hasan’s petition (CAAFlog case page) for a writ of mandamus ordering the judges of the Army Court of Criminal Appeals to disqualify themselves from his case.

No. 19-0054/AR. Nidal M. Hasan, Petitioner v. United States Army Court of Criminal Appeals, Respondent and United States, Real Party in Interest. CCA 20130781. On consideration of the petition for extraordinary relief in the nature of a writ of mandamus, the briefs of the parties, and oral argument, we note that we have the authority to issue extraordinary writs in aid of our jurisdiction pursuant to the All Writs Act (AWA), 28 U.S.C. § 1651(a) (2012). United States v. Denedo, 556 U.S. 904, 911 (2009). In this death penalty case, we conclude that we have the jurisdiction to issue the requested writ. See In re Mohammad, 866 F.3d 473, 475 (D.C. Cir. 2017) (noting that federal courts of appeals may issue writ under AWA now to protect exercise of its appellate jurisdiction later); see also Article 67(a)(1), Uniform Code of Military Justice, 10 U.S.C. § 867(a)(1) (2012) (providing jurisdiction for this Court over all cases in which the sentence, as affirmed by a Court of Criminal Appeals, extends to death).

However, before we may issue a writ of mandamus, three conditions must be satisfied: (1) the petitioner must demonstrate that there are no other adequate alternative means to obtain the desired relief, thus ensuring that the writ is not used as a substitute for the regular appeals process; (2) the petitioner must demonstrate a clear and indisputable right to the writ; and (3) this Court must be convinced, given the circumstances, that the issuance of the writ is warranted. Cheney v. United States Dist. Court for D.C., 542 U.S. 367, 380-81 (2004).

In this case, Petitioner has failed to demonstrate that he cannot obtain relief through alternative means. He may still make an administrative request to remedy the alleged source of bias, and of course, he is entitled to raise this issue in the ordinary course of appellate review. Further, Petitioner has failed to demonstrate a clear and indisputable right to the writ as the harm he asserts is entirely speculative at this stage of the proceedings. Therefore, we decline to exercise our authority under the AWA.

Accordingly, it is ordered that the petition is denied without prejudice to Petitioner’s right to raise the issue asserted during the normal course of appellate review.

(paragraphing added).

Case Links:
Writ petition
Gov’t Div. Answer
Petitioner’s reply
Blog post: CAAF orders Gov’t Div. to re-brief
Gov’t Div. re-brief
Reply to re-brief
• Oral argument audio (wma)(mp3)
Blog post: Summary disposition