CAAFlog » October 2018 Term » United States v. Stout

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.