CAAFlog » October 2018 Term » United States v. Stout

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).

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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.

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 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 recently granted review in three cases.

The first is an Army case involving the good-faith exception to the warrant requirement (

No. 18-0211/AR. U.S. v. Graham H. Smith. CCA 20160150. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following 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.

Briefs will be filed under Rule 25.

The Army CCA’s opinion is available here.

The second is also from the Army and involves a potential major change:

No. 18-0273/AR. U.S. v. Norman R. Stout. CCA 20120592. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

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.

Briefs will be filed under Rule 25.

The Army CCA’s opinion is available here.

The third is from the Air Force and involves the sufficiency of a conviction for wrongful possession of child pornography:

No. 18-0288/AF. U.S. v. Jeremiah L. King. CCA 39055. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

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?

Briefs will be filed under Rule 25.

The only opinion I can find on the Air Force CCA’s website is a merits decision from July 26, 2017, available here.