CAAFlog » October 2018 Term

CAAF will hear oral argument in the certified Marine Corps case of United States v. Perkins, No. 18-0365/MC (CAAFlog case page), on Tuesday, January 22, 2018, after the argument in Smith. The Judge Advocate General of the Navy certified two issues to the court, 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 that was found in the garage of Perkins’ on-base home. The search authorization that gave military investigators access to that garage is at the heart of the case.

Perkins was in a relationship with a woman who alleged to military law enforcement that he was extorting 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. They found no illicit pictures or videos in the house, but they did find evidence of other misconduct.

Perkins moved to suppress that other evidence, arguing that the search of his home lacked probable cause. 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. 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.

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CAAF will hear oral argument in the Army case of United States v. Smith, No. 18-0211/AR (CAAFlog case page), on Tuesday, January 22, 2018, at 9:30 a.m. The first of two cases to be argued that day (both involving the good faith exception to the exclusionary rule), Smith involves an appellate-stage challenge to the admission of the fruits of a search of electronic devices.

CAAF granted review of two issues:

I. Whether the military judge abused her discretion in denying a defense motion to suppress evidence obtained from Appellant’s cellular telephone because access to the contents of the iPhone would not have been available but for the government’s illegal search and the good faith doctrine would be inapplicable under the circumstances.

II. Whether the Army Court of Criminal Appeals erred in deeming the insufficient nexus issue waived because there was no deliberate decision not to present a ground for potential relief but instead only a failure to succinctly articulate the grounds upon which relief was sought.

Warrant Officer One (W01) Smith was convicted of two specifications of indecent recording in violation of Article 120c(a) (2012) and sentenced to confinement for two months and a dishonorable discharge. The allegations arose after a young woman saw Smith take a photograph under her dress using an iPhone. She sounded the alarm, Smith was quickly apprehended, and the iPhone was seized. Military investigators then sought authorization to search the iPhone and also to seize and search any other Apple product in Smith’s residence under the theory that the iPhone could synchronize with the other devices. The authorization was granted, several other devices were seized, and all of the devices were sent for examination.

The examination found no incriminating evidence on the devices seized from Smith’s home, and the examiners were initially unable to access the iPhone because it was locked. But because Smith previously synced his iPhone with one of his other devices, the investigators were able to use that prior connection to access the iPhone. After doing that, they discovered incriminating videos on the iPhone. Smith’s defense counsel moved to suppress the videos, arguing that the iPhone was unlawfully seized (at the time of the woman’s complaint) and that the search authorization of the iPhone was not supported by probable cause. The motion was overruled, the videos were admitted, and Smith was convicted.

On appeal, Smith renewed his objection to the admission of the videos, but with a new argument: that the search of the devices from his home – that made it possible to search the iPhone – lacked probable cause. The argument was based on CAAF’s opinion in United States v. Nieto, 76 M.J. 101 (C.A.A.F. Feb. 21, 2017) (CAAFlog case page), part of the #7 Military Justice Story of 2017, and claimed an insufficient nexus between Smith’s phone and other devices. The Army CCA refused to consider Smith’s new argument and also concluded that the good faith exception applied (while noting that the military judge also determined that the inevitable discovery doctrine applied).

CAAF then granted review of two issues that embody a plethora of questions about the trial and appellate proceedings. The first issue presumes that the search of the devices seized from Smith’s home was unlawful (something no court has said), it presumes that the incriminating videos on Smith’s iPhone would never have been discovered but-for the search of the other devices (a question of technological capabilities), and it challenges the application of the good faith exception under the facts of this case. The second granted issue challenges the Army CCA’s refusal to consider Smith’s new suppression argument based on Nieto, and it suggests that the argument isn’t so much new as it is just a clarification of the trial stage objection that was not succinctly articulated.

It’s a complicated case that is made even more complicated by the briefs, because Smith offers a second new basis for suppression (that investigators exceeded the scope of the search authorization) and the Army Government Appellate Division makes numerous concessions.

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CAAF decided the Army case of United States v. Nicola, __ M.J. __, No. 18-0247/AR (CAAFlog case page) (link to slip op.), on Wednesday, January 9, 2019. Emphasizing that an accused who testifies in his own defense may be disbelieved by the trier of fact (members, in this case), and that such disbelief may form the basis for a conviction, CAAF finds a conviction for indecent viewing legally sufficient and affirms the decision of the Army CCA.

Judge Maggs writes for a unanimous court.

CAAF granted review of a single issue:

Whether the evidence of indecent viewing in violation of Article 120c, UCMJ, was legally sufficient.

The offense of indecent viewing occurs when a person, without legal justification or lawful authorization, “knowingly and wrongfully views the private area of another person, without that other person’s consent and under circumstances in which that other person has a reasonable expectation of privacy.” Article 120c(a). The statute defines private area as the naked or underwear-clad genitalia, anus, buttocks, or female areola or nipple. A conviction is legally sufficient if, considering all of the evidence in the light most favorable to the prosecution, a rational fact-finder could have found all essential elements of the offense beyond a reasonable doubt.

Staff Sergeant (E-6) Nicola was convicted of violating a general regulation, abusive sexual contact, and indecent viewing, by a general court-martial composed of officer members, and he was sentenced to reduction to E-1 and a bad-conduct discharge. Nicola’s convictions relate to his conduct with a high-intoxicated, junior female soldier, identified in CAAF’s opinion as Corporal AA.

Corporal AA testified during Nicola’s trial, and Nicola testified in his own defense. Their stories conflicted. Corporal AA claimed that Nicola sexually assaulted her in the shower in her barracks room (he was acquitted of an offense related to that alleged sexual assault). Nicola claimed that he only briefly saw Corporal AA in her bra as she undressed herself to get into the shower, and then that he later looked at her in the shower only to check on her welfare. Nicola focused on his version of events to claim that his conviction of indecent viewing is legally insufficient, while the Army Government Appellate Division asserted that Corporal AA’s version of events supports Nicola’s indecent viewing conviction (even though Nicola was acquitted of the related sexual assault allegation) and also that the members were free to disbelieve Nicola’s version of events and conclude that – even if he did not do everything Corporal AA claimed he did – he did more than he admitted to doing.

CAAF agrees with the Government Division, with Judge Maggs explaining that the court “find[s] the evidence legally sufficient to support each of the Government’s theories.” Slip op. at 6. The primary reason for that finding is Nicola’s testimony in his own defense.

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CAAF decided the Air Force case of United States v. King, 78 M.J. __, No. 18-0288/AF (CAAFlog case page) (link to slip op.), on Friday, January 4, 2019. Emphasizing the ability of prosecutors to prove guilt with circumstantial evidence, the court finds that a conviction of viewing child pornography is legally sufficient even though computer forensics could not conclusively prove that the images were knowingly viewed.

Chief Judge Stucky writes for a unanimous court.

Airman First Class (E-3) King was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of one specification of attempting to view child pornography, one specification of viewing child pornography, and one specification of violating a general regulation. He was sentenced to confinement for nine months, reduction to E-1, and a dishonorable discharge. The Air Force CCA summarily affirmed the convictions.

The evidence against King included an admission by King that he searched for and looked at naked images of young girls, and it also included the results of a forensic examination of King’s electronic devices that revealed thousands of offensive images and three specific images of child pornography. Those three images were found on King’s home computer, but in hard-to-access places: two were found in a web browser’s cache (a storage location to make repeat browsing faster) and one was found in unallocated space (likely meaning that it was a deleted item). King was convicted of knowingly and wrongfully viewing those three specific images, and CAAF granted review of a single issue challenging the sufficiency of that conviction in light of the location of the images:

The military judge found Appellant guilty of viewing child pornography. But all of the alleged child pornography appellant allegedly viewed was found in unallocated space or a Google cache. Is the evidence legally sufficient?

CAAF finds the evidence legally sufficient, but Chief Judge Stucky’s opinion begins with the caveat that it does so, “given the very low threshold required to sustain a conviction for legal sufficiency.” Slip op. at 1.

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

United States v. Cooper, No. 18-0282/NA (CAAFlog case page): Oral argument audio.

United States v. Forbes, 18-0304/NA (CAAFlog case page): Oral argument audio.

United States v. Briggs, No. 16-0711/AF (CAAFlog case page): Oral argument audio.

United States v. Stout, No. 18-0273/AR (CAAFlog case page): Oral argument audio.

CAAF will hear oral argument in the Navy case of United States v. Forbes, No. 18-0304/NA (CAAFlog case page), on Tuesday, December 4, 2018. A single issue questions whether a guilty plea to sexual assault should be reversed:

Whether the Navy court erred in holding that appellant was provident to sexual assault by bodily harm due to his failure to inform his sexual partners of his HIV status.

Aviation Maintenance Administrationman Second Class (E-5) Forbes pleaded guilty to various offenses, including four specifications of sexual assault by causing bodily harm in violation of Article 120 (2012) that were related to Forbes intentionally hiding his HIV-positive status from his sexual partners.

The theory that failure to inform a sexual partner of HIV status constitutes bodily harm was based on CAAF’s holding in United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. 2015) (CAAFlog case page) (the #7 Military Justice Story of 2015), in which the court unanimously held that:

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.

74 M.J. at 68. Applying Gutierrez to Forbes’ guilty plea the Navy-Marine Corps CCA explained:

Gutierrez’s conduct—engaging in otherwise-consensual sexual activity without telling his partners that he had HIV—included an “offensive touching to which his sexual partners did not provide meaningful informed consent” because “‘[w]ithout disclosure of HIV status there cannot be a true consent.'” Id. (quoting R. v. Cuerrier, [1998] 2 S.C.R. 371, 372 (Can.)).

Here, in explicit reliance on the CAAF’s holding in Gutierrez, the government charged the appellant with both assault consummated by battery in violation of Article 128(a), UCMJ, and sexual assault by bodily harm in violation of Article 120(b)(1)(B), UCMJ. In a bench memorandum, the trial counsel explained that since “failure to disclose an accused’s HIV status constituted an offensive touching because the accused’s partners did not provide informed meaningful consent, ‘the appropriate charges would be either 1) sexual assault by bodily harm; or 2) assault consummated by battery.'”

United States v. Forbes, 77 M.J. 765, 769 (N-M Ct. Crim. App. 2018) (discussed here). The CCA also noted:

We make no distinction between the appellant’s failure to inform his sexual partners that he was HIV-positive and any affirmative statement denying that he was HIV-positive or intimating that he was not HIV-positive. Gutierrez does not address the situation where an HIV-positive individual engages in sexual activity after denying his positive status. It is enough, under Gutierrez, that the appellant simply did not tell his partners that he was HIV-positive.

77 M.J. at 772 n.20. Now CAAF will determine if that’s correct.

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CAAF will hear oral argument in the Army case of United States v. Stout, No. 18-0273/AR (CAAFlog case page), on Wednesday, December 4, 2018, at 11 a.m. (after the arguments in Cooper and Briggs). The court granted review of one issue questioning whether changes to three specifications were proper:

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.

In 2012, Staff Sergeant (E-6) Stout pleaded guilty to abusive sexual contact with a child, indecent liberties with a child, and wrongful possession of child pornography, in violation of Articles 120 and 134, and was sentenced to confinement for eight years, reduction to E-1, and a bad-conduct discharge. As part of a plea agreement various other charges were dismissed. But on appeal Stout challenged his pleas and his pleas were reversed by the Army CCA in an opinion discussed here.

A rehearing was authorized, but Stout did not plead guilty again. Instead, he contested the charges. A general court-martial composed of a military judge alone convicted him of committing many more offenses than he originally pleaded guilty to committing: three specifications of abusive sexual contact with a child, two specifications of indecent liberties with a child, sodomy with a child, and assault with intent to commit rape, in violation of Articles 120, 125, and 134. Stout was then sentenced to confinement for 18 years, reduction to E-1, and a dishonorable discharge (the new convictions involved things not included in the original convictions, avoiding the sentence limitation in Article 63).

The charges at the rehearing, however, were not identical to the charges at the original trial. Instead, there were “dozens of amendments to the charge sheet.” App. Br. at 4. Many of the amendments were minor (such as correcting spelling mistakes), but three changes “expanded the timeframes of Specifications 1 and 6 of Charge I, and the Specification of Charge II.” App. Br. at 4. Specifically:

For Specification 7 of Charge I,the dates were changed from “between on or about 14 January 2009 and on or about 28 January 2009” to “between on or about 7 August 2008 and on or about 3 June 2009.” (JA 126). For the Specification of Charge II, the dates were changed from “between on or about 14 February 2009 and on or about 22 March 2009” to “between on or about 7 August 2008 and on or about 3 June 2009.” (JA 126). For the Specification of Charge III, the dates were changed from “between on or about 1 November 2009 to on or about 31 December 2009” to “between on or about 7 August 2008 and on or about 3 June 2009.” (JA 126).

Gov’t Div. Br. at 7. Stout objected, asserting that the expanded time periods were a major change, but the military judge overruled the objection and the Army CCA affirmed. Argument over that objection now continues at CAAF.

Last year, in United States v. Reese, 76 M.J. 297, 300 (C.A.A.F. 2017) (CAAFlog case page), a unanimous CAAF explained that a major change is one where an “additional or different offense is charged … [or] substantial rights of the defendant are not prejudiced.” It further explained that because R.C.M. 603(d)  – which prohibits such changes – does not discuss prejudice, when there is a major change “there is no charge to which jurisdiction can attach” and reversal is required. 76 M.J. at 301-302. Accordingly, if Stout can convince CAAF that the military judge and Army CCA got it wrong, the affected charges will be dismissed.

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CAAF will hear oral argument in the Air Force case of United States v. Briggs, No. 16-0711/AF (CAAFlog case page), on Tuesday, December 4, 2018, after the argument in Cooper. The case was remanded to CAAF by the Supreme Court in August for review in light of CAAF’s decision in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), which reinterpreted the statute of limitations for the offense of rape of an adult. CAAF will consider two issues involving the application of the new rule in this case:

I. Does the 2006 amendment to Article 43, UCMJ, clarifying that rape is an offense with no statute of limitations, apply retroactively to offenses committed before enactment of the amendment but for which the then extant statute of limitations had not expired.

II. Can Appellant successfully raise a statute of limitations defense for the first time on appeal.

In 2014, Lieutenant Colonel (O-5) Briggs was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of one specification of rape in violation of Article 120 (pre-2007). The rape was alleged to have occurred nine years earlier, in 2005. The military judge sentenced Briggs to confinement for five months, a reprimand, and to be dismissed.

The Air Force CCA affirmed the findings and sentence in 2016. The case then became one of many trailer cases to Ortiz v. United States, 585 U.S. __, No. 16-1423 (June 22, 2018) (CAAFlog case page), in which the Supreme Court held that an appellate military judge may properly also serve as an assigned judge of the Court of Military Commission Review. Prior to the Court deciding Ortiz, however, CAAF decided Mangahas.

In Mangahas, CAAF reversed 20 years of precedent and reinterpreted the statute of limitations for rape of an adult. CAAF had previously held that under the UCMJ, rape qualified as an offense punishable by death and so was exempt from the 5-year statute of limitations in effect prior to a 2006 amendment that extended the statute of limitations for rape indefinitely. But in Mangahas CAAF clarified that rape (without aggravating factors) is not constitutionally punishable by death and so the statute of limitations was five years (until it was changed in 2006). CAAF’s decision in Mangahas resulted in the dismissal of a then-pending rape charge for conduct alleged to have occurred in 1997, and it also led the Air Force CCA to reverse a 2017 conviction for a rape alleged to have occurred in 2000, in United States v. Collins, 78 M.J. 530 (A.F. Ct. Crim. App. Jul 23, 2018) (discussed here), certified, 78 M.J. __ (C.A.A.F. Nov. 5, 2018) (noted here).

While Mangahas, Collins, and Briggs are all Air Force cases, that is not the only service to use military law to prosecute decades-old allegations of sexual assault. The Army, for example, dismissed such charges against a retired two-star general earlier this year in the wake of Mangahas.

Briggs presents questions that are closely-related to the Mangahas decision: whether the extension of the statute of limitations enacted in 2006 applies to conduct alleged to have occurred before the enactment of the 2006 change, and how to address that issue when the defense fails to raise it at trial.

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CAAF will hear oral argument in the certified Navy case of United States v. Cooper, No. 18-0282/NA (CAAFlog case page), on Tuesday, December 4, 2018, at 9:30 a.m. Four issues related to Cooper’s choice of defense counsel were certified to CAAF:

I. Did the lower court err not finding waiver of the right to request individual military counsel where Appellee was advised of his right to request an individual military counsel, agreed he understood the right but wanted instead to be represented by trial defense counsel, and made no motion for individual military counsel?

II. Did the lower court err in not applying the Strickland ineffective assistance test where the government and trial judge played no part in the defense’s failure to request individual military counsel, and if so, did Appellee suffer ineffective assistance of counsel?

III. If Strickland does not apply, did the lower court correctly find Appellee was deprived of his statutory right to request individual military counsel?

IV. Did the lower court err in it’s prejudice analysis for Appellee’s asserted deprivation of his statutory right to individual military counsel when Appellee did not preserve the issue at trial, raised the issue for the first time on appeal, and has alleged no specific prejudice?

Persons accused of criminal offenses in the civil courts are generally appointed an attorney to represent them only if they are indigent. Every accused at a court-martial, however, is detailed a military defense counsel free of charge, without regard to indigence. The accused may even request a specific individual military defense counsel (however that person must be reasonably available as determined by service regulations that generally narrow the choice considerably).

Yeoman Second Class (E-5) Cooper was convicted, by a general court-martial composed of members with enlisted representation, of three specifications of sexual assault and one specification of abusive sexual contact. He was sentenced to confinement for five years, reduction to E-1, total forfeitures, and a dishonorable discharge.

Cooper was represented by two detailed military defense counsel: Lieutenant (LT) JB and Lieutenant Commander (LCDR) NG. At trial, the military judge asked Cooper who he wanted to represent him (a standard question), and Cooper said that the wanted to be represented by LT JB and LCDR NG and by nobody else. But Cooper also wanted to be represented by individual military defense counsel (IMC), and on appeal Cooper claimed that his detailed defense counsel failed to request one of the three people Cooper identified as potential IMC. The Navy-Marine Corps CCA ordered a post-trial factfinding hearing, concluded that Cooper was denied his statutory right to IMC, and reversed Cooper’s convictions.

The Judge Advocate General of the Navy then certified the case to CAAF, challenging the CCA’s findings that Cooper did not waive his right to IMC when he failed to make his desire known to the military judge, that Cooper was denied his statutory right to IMC, and that reversal is warranted as a result.

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CAAF decided the Army case of United States v. Tucker, 78 M.J. 183, No. 18-0254/AR (CAAFlog case page) (link to slip op.), on November 29, 2018. In its second review of a conviction of violation of Article 134 for negligently providing alcohol to a minor, CAAF holds that negligence is an insufficient mens rea (mental state) for the offense. The court reverses the Army CCA (for the second time), reverses the guilty plea to the offense, and remands for further action.

Judge Ohlson writes for a unanimous court.

CAAF granted review to determine:

Whether the Army Court erred in holding that the minimum mens rea required under clauses 1 and 2 of Article 134, UCMJ, to separate wrongful from innocent conduct is simple negligence.

Private (E-1) Tucker pleaded guilty to multiple offenses, including a novel violation of Article 134 based on providing alcohol to a minor. During the plea inquiry Tucker told the military judge that “he did not know—and had no reason to believe—that [the recipient] was under the age of twenty-one.” Slip op. at 3. “The military judge eventually concluded that the mens rea for the charged offense was negligence . . . [and] the military judge accepted Appellant’s plea and entered a finding of guilty for the putative offense of negligently providing alcohol to an underage individual in violation of Article 134, UCMJ.” Slip op. at 3-4.

The Army CCA affirmed Tucker’s conviction in a published decision, concluding that the word neglects in Article 134 states a negligence standard. United States v. Tucker, 75 M.J. 872, 875 (A. Ct. Crim. App. Oct. 28, 2016). CAAF granted review, heard oral argument, and then reversed the CCA with a per curiam decision. United States v. Tucker, 76 M.J. 257, 258 (C.A.A.F. May 23, 2017) (CAAFlog case page). CAAF concluded that “the term ‘neglects’ simply refers to the failure of a servicemember to perform an act that it was his or her duty to perform. . . . [it] has no connection to the mens rea requirement that the government must prove under the statute.” 76 M.J. at 258. Mens rea then became the #8 Military Justice Story of 2017.

On remand the Army CCA again affirmed Tucker’s conviction, with another published decision holding that Tucker’s “admitted mens rea of simple negligence, when combined with the requirement that [his] conduct was to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces, and his admitted knowledge of the wrongfulness of his actions, sufficiently separates his criminal conduct from otherwise innocent conduct.” United States v. Tucker, 77 M.J. 696, 697 (A. Ct. Crim. App. Mar. 27, 2018) (marks omitted).

CAAF now reverses that decision too, and it reverses Tucker’s conviction, with Judge Ohlson explaining that “it is inappropriate to infer a negligence mens rea ‘in the absence of a statute or ancient usage.'” Slip op. at 5 (quoting United States v. Manos, 8 C.M.A. 734, 735, 25 C.M.R. 238, 239 (1958)).

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CAAF decided the Army case of United States v. Criswell, 78 M.J. 136, No. 18-0091/AR (CAAFlog case page) (link to slip op.), on November 16, 2018. The court granted review to determine whether the military judge erred by allowing the alleged victim to identify Criswell as her assailant during her testimony, even though she did not know him before the alleged assault and she was shown a picture of him (and only him) before trial in a way that was found to be unnecessarily suggestive. CAAF narrowly affirms the military judge ruling and Criswell’s convictions, with the majority applying a highly-deferential standard of review that focuses on Criswell’s appellate-stage objections to the military judge’s ruling. The dissenters, however, conduct a broader review, find numerous flaws in the military judge’s ruling, and would reverse the findings and authorize a rehearing.

Judge Maggs writes for the court, joined by Chief Judge Stucky and Judge Ryan. Judge Ohlson dissents, joined by Judge Sparks.

CAAF granted review of a single issue:

Whether the military judge abused his discretion in denying a defense motion to suppress the accusing witness’s in-court identification of Appellant.

A general court-martial composed of a military judge alone convicted Specialist (E-4) Criswell, contrary to his pleas of not guilty, of one specification of making a false official statement, two specifications of abusive sexual contact, one specification of assault consummated by battery, and one specification of indecent language in violation of Articles 107, 120, 128, and 134. Criswell was sentenced to confinement for two years, reduction to E-1, and a dishonorable discharge.

Criswell’s convictions relate to an allegation by Specialist (SPC) AM that she was verbally harassed and sexually touched on two separate occasions during a large party at a convention center. SPC AM is a white female; her assailant was a black man. The lighting was poor during both encounters and SPC AM did not know her assailant, but she saw his face well enough to provide a general description to another soldier at the party and based on that description the other soldier suspected Criswell. Military criminal investigators showed SPC AM a single picture of Criswell the next day, and she identified him at that time as her assailant “immediately and without hesitation.” Slip op. at 7 (quoting military judge’s findings of fact). Testifying in court, SPC AM again identified Criswell as her assailant. The military judge did not allow the prosecution to introduce SPC AM’s out-of-court identification of Criswell, but he allowed the in-court identification over a defense objection that challenged it as the unreliable product of the actions of the military investigators.

Considering those facts, all of CAAF’s judge’s agree that eyewitness identifications can lead to injustice. Judge Maggs observes for the majority that “eyewitness identifications are problematic in any criminal justice system.” Slip op. at 2. Judge Ohlson observes for the dissenters that “mistaken eyewitness identifications are responsible for more wrongful convictions than all other causes combined.” Diss. op. at 11 (quoting United States v. Brownlee, 454 F.3d 131, 142 (3d Cir. 2006)). But CAAF splits over how to review the eyewitness identification allowed in this case. While the ordinary standard of review for rulings admitting evidence is abuse of discretion – where findings of fact are reviewed for clear error and conclusions of law are reviewed de novo – the majority narrows that approach, with Judge Maggs explaining:

Applying this standard in this case, we do not undertake a de novo analysis of whether the in-court identification should have been admitted. Instead, we focus on Appellant’s objections to the military judge’s findings of fact, view of the law, and conclusions in applying the law to the facts.

Slip op. at 7 (emphasis added). The majority then addresses the challenges raised in Criswell’s “brief and reply brief,” slip op.at 8, and during oral argument, slip op. at 8-9 (citing oral argument recording). See also slip op. at 11 (excusing the military judge’s failure to specifically address a factor because “Appellant does not contend, either in his briefs or his oral argument[,] that the military judge misunderstood this aspect [of the law]”). The dissenters, however, make no reference to Criswell’s briefs or to the oral argument while concluding that “the military judge committed three errors in this case.” Diss. op. at 4.

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

United States v. Bodoh, No. 18-0201/AR (CAAFlog case page): Oral argument audio

United States v. Nicola, No. 18-0247/AR (CAAFlog case page): Oral argument audio

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

United States v. King, No. 18-0288/AF (CAAFlog case page): Oral argument audio

United States v. Kohlbek, No. 18-0267/AR (CAAFlog case page): Oral argument audio

CAAF will hear oral argument in the Army case of United States v. Nicola, No. 18-0247/AR (CAAFlog case page), on Wednesday, November 7, 2018, after the argument in Bodoh. The court will determine:

Whether the evidence of indecent viewing in violation of Article 120c, UCMJ, was legally sufficient.

The offense of indecent viewing occurs when a person, without legal justification or lawful authorization, “knowingly and wrongfully views the private area of another person, without that other person’s consent and under circumstances in which that other person has a reasonable expectation of privacy.” Article 120c(a). The statute also defines private area as the naked or underwear-clad genitalia, anus, buttocks, or female areola or nipple. A conviction is legally sufficient if, considering all of the evidence in the light most favorable to the prosecution, a rational fact-finder could have found all essential elements of the offense beyond a reasonable doubt.

Staff Sergeant (E-6) Nicola was convicted of violating a general regulation, abusive sexual contact, and indecent viewing, by a general court-martial composed of officer members, and he was sentenced to reduction to E-1 and a bad-conduct discharge. Nicola’s convictions relate to his conduct with a junior female soldier – identified as Corporal (CPL) AA – during a night of drinking with other soldiers both on and off post. CPL AA overconsumed and Nicola took her back to her barracks room, where her next memory was sitting naked on the floor of her shower with the water running. She also accused Nicola of committing a sexual act upon her in the shower, but he was acquitted of that.

Nicola testified in his own defense at trial and said that after he brought CPL AA back to her room, he told her to take a shower to help her sober up. He said that she then spontaneously removed her clothes and he saw her in her bra before he could look away. She then went into the shower where she remained for a long time, and Nicola admitted to checking on her at one point (after she didn’t respond when he shouted to her) during which he saw her naked. The prosecution argued that Nicola committed an indecent viewing when he saw CPL AA in her bra as she disrobed and then again when he saw her naked in the shower.

Nicola’s appeal doesn’t challenge that he viewed CPL AA’s private areas, but rather that her “reasonable expectation of privacy was relinquished by taking her own clothes off in front of another person, or superseded by placing herself in harm’s way when she was unresponsive in the shower.” App. Br. at 7.

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CAAF decided the Army case of United States v. Eugene, 78 M.J. __, No. 18-0209/AR (CAAFlog case page) (link to slip op.), on Monday, October 29, 2018. With a short opinion, CAAF holds that the question of whether an accused revoked consent to a search is a question of fact, not a question of law. Then, considering the deference generally afforded to a military judge’s factual findings, CAAF finds no error in the military judge’s finding that Eugene did not revoke the consent his wife gave to law enforcement to search Eugene’s phone. CAAF affirms the findings, sentence, and the decision of the Army CCA.

Chief Judge Stucky writes for a unanimous court.

CAAF granted review of two issues:

I. Whether Appellant’s request to Criminal Investigation Command (CID) that his cell phone be returned was a withdrawal of the third party consent to search given by Appellant’s wife in Appellant’s absence.

II. Whether the Army Court erred in determining the applicability of the inevitable discovery doctrine where (1) the CID agents failed to take any steps to obtain a warrant and (2) the case took a “dead-end” until the warrantless search.

CAAF answers the first issue in the negative and does not reach the second issue.

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