CAAFlog » Practicum

During last month’s meeting of the JPP subcommittee, a panel of senior prosecutors gave comments about memos written by prosecutors and sent to convening authorities or their staff judge advocates to help gauge the viability of certain cases. Those memos were identified by a testifying Marine judge advocate as “prosecurorial merits memo[s],” (see transcript here) and I got the impression that every service produces some version of them.

Once transmitted to a convening authority or staff judge advocate, such memos are discoverable.

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In this post last month, I announced that I updated our Microsoft Word document of the UCMJ to include the most recent changes. This is an annual project of mine. The document is available here: UCMJ.

But I’m revisiting the topic now because I discovered an error in the version that I posted last month. As part of this year’s update, I added the 2006 and pre-2006 versions of Article 120 to the document (because I use the document myself, and I often need to reference these older versions). Unfortunately, in the section captioned as the 2006 version of Article 120, the text was the current (2012) version. I’ve now corrected this mistake.

So, if any of our three readers downloaded the Word document in the past month, please download it again. I also hope to publish an online version sometime this year.

And if anyone identifies any other errors (even typographical), please drop me a note at

I’ve updated our Microsoft Word version of the UCMJ to incorporate the changes from the FY15 NDAA.

The September 10, 2014, version of the Military Judges’ Benchbook is available on the Army Trial Judiciary’s website here (you may have to scroll down significantly to see the page content). You can also use this direct link to download the 5 MB PDF from the Army site.

Thanks to reader T for the tip.

Another guest blog – by Dew_Process.  In some prior posts we had great input from Chris Kennebeck regarding the JSC, which I had forgotten.

[“Jr.Editor” note — first some background.  Dew_Process posted with me recently at my invitation so it wasn’t really a true guest post.  The other day he and I came across the same case.  I invited him to submit a post.  Which he has done.  He said I could edit it – I haven’t (except to put in the links).  The invitation went out before my invitation to AFJAG to write on Witt or Chron for us.]

This court has been asked to issue a search warrant pursuant to Rule 41 of the Federal Rules of Criminal Procedure for the contents of a cell phone that is currently in the custody of the Drug Enforcement Agency (DEA). Based on this courts previous rulings and other case law this request has been denied. [ emphasis added]

So begins the opinion in the case of In re Nextel Cellular Telephone, 2014 WL2898262 (D.Kan. 2014). Regular readers of CAAFlog will note that the subject of cell phone searches is something that has generated frequent interest here.  Thus, the Nextel decision coming on the heels of Riley v. California, 2014 WL 2864483 (2014), should be of interest to all military justice practitioners, regardless of which side of the aisle one is on. And for those readers who handle post-conviction relief issues, Nextel is important because it relies heavily on Tenth Circuit caselaw – decisions that apply to the U.S. Disciplinary Barracks at Fort Leavenworth, Kansas.

Why the court denied the search warrant in this case is instructive. A confidential source had given the DEA information that a particular vehicle was carrying roughly 15 pounds of methamphetamine. According to the DEA agent’s application, during a “consent” search of the vehicle, they: “seized as evidence from [redacted] his NEXTEL cellular telephone which was identified as a black and orange NEXTEL smartphone. . . .” Thereafter, the DEA agent submitted an application for a search warrant to the federal magistrate judge.

The application stated in pertinent part: Read more »

Back in March, Phil wrote about proposed changes to the Federal Rules of Evidence (F.R.E). One of these changes involves an expansion to the rule addressing prior consistent statements of a testifying witness: F.R.E. 801(d)(1)(B).

For context, the Military Rules of Evidence (M.R.E.) are based on the F.R.E., and changes to the F.R.E. are automatically assimilated after 18 months, pursuant to M.R.E. 1102 (the 2013 version of the M.R.E. is here).

F.R.E. 801 and M.R.E. 801 both provide definitions that apply to hearsay evidence, including exclusions from what might otherwise be hearsay. One such exclusion is for a prior statement of a testifying witness where the statement:

is consistent with the declarant’s testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying.

M.R.E. 801(d)(1)(B); F.R.E. 801(d)(1)(B). The Supreme Court analyzed this pre-motive rule in Tome v. United States, 513 U.S. 150 (1995) (Oyez case page):

The prevailing common-law rule for more than a century before adoption of the Federal Rules of Evidence was that a prior consistent statement introduced to rebut a charge of recent fabrication or improper influence or motive was admissible if the statement had been made before the alleged fabrication, influence, or motive came into being, but it was inadmissible if made afterwards. As Justice Story explained: “[W]here the testimony is assailed as a fabrication of a recent date, . . . in order to repel such imputation, proof of the antecedent declaration of the party may be admitted.” Ellicott v. Pearl, 10 Pet. 412, 439 (1836) (emphasis added). See also People v. Singer,300 N.Y. 120, 124-125, 89 N.E.2d 710, 712 (1949).

McCormick and Wigmore stated the rule in a more categorical manner: “[T]he applicable principle is that the prior consistent statement has no relevancy to refute the charge unless the consistent statement was made before the source of the bias, interest, influence or incapacity originated.” E. Cleary, McCormick on Evidence § 49, p. 105 (2d ed. 1972) (hereafter McCormick). See also 4 J. Wigmore, Evidence § 1128, p. 268 (J. Chadbourn rev. 1972) (hereafter Wigmore) (“A consistent statement, at a time prior to the existence of a fact said to indicate bias . . . will effectively explain away the force of the impeaching evidence” (emphasis in original)). The question is whether Rule 801(d)(1)(B) embodies this temporal requirement. We hold that it does.

513 U.S. at 156. But the Supreme Court has now approved an expansion of this exclusion, to include prior statements offered “to rehabilitate the declarant’s credibility as a witness when attacked on another ground.” Unless Congress acts, the new Federal Rule will take effect on December 1, 2014, and will read:

(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:
(1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:
* * *
(B) is consistent with the declarant’s testimony and is offered:
(i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or
(ii) to rehabilitate the declarant’s credibility as a witness when attacked on another ground;
* * *

The Federal Evidence Review Blog has a summary of the Supreme Court’s approval here, and a summary of the change here.

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There is a very interesting issue going on which in some ways is relevant to some of the past and continuing discussions regarding SVC’s, etc.

What does MRE 410 say?

 “Evidence of the following is not admissible against the accused who made the plea or participated in the plea discussions:

(4) any statement made during plea discussions with the convening authority, staff judge advocate, trial counsel or other counsel for the government if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.”

How different is MRE 410 from FRE 410?  Not much I would say.

 “(4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.”

Enter Professor Cassell.  You may know him as the anti-false confession expert in false confession cases.  Professor Cassell starts out today’s blog post on Volokh Conspiracy as follows.

 On Friday, the 11th Circuit ruled that discovery can move forward in an important Crime Victims’ Rights Act case[.]  The narrow issue before the court was whether prosecutors and defense attorneys could assert some sort of “privilege” to prevent crime victims from reviewing the correspondence that lead to a plea bargain.

Here’s where it gets interesting (I’m jumping over some very interesting background facts).

 Among other relief [at the district court], we sought rescission of the non-prosecution agreement as a remedy for the violation of the victims’ rights.  To make the case for such a remedy, we moved for discovery of the correspondence between the U.S. and Epstein’s attorneys during the plea negotiations. Epstein’s attorneys intervened, arguing that Federal Rule of Evidence 410 and Federal Rule of Criminal Procedure 11 create a privilege for plea negotiations, barring release of the correspondence.  They also argued that the court should find that the materials were protected under the work product doctrine or, alternatively, should be protected under a new “common-law privilege for plea negotiations.”

Here is a link to Doe 1 & 2 v. United States, et. al., decided 18 April 2014.

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A reader forwarded on the most recent version of the Rules of Practice Before Army Courts-Martial (10 Sep 13), which includes the following new rule:

RULE 2.3: Special Victim Advocate (SVA) Requirements.
RULE 2.3.1: Applicability. As stated in the Preamble, the Rules of Court apply to all counsel practicing before Army courts-martial. Accordingly, notwithstanding references to “both parties”, “counsel for both sides”, “party” or words to that effect, all Rules of Court apply to SVAs, including but not limited to the rules on motions practice in Rule 3.

Congress amended Article 120 in the FY12 NDAA, with the new statute taking effect on 28 June 2012. That date passed without any Presidential rulemaking to list elements, define terms, provide model specifications, or establish maximum punishments (the things usually found in Part IV of the MCM).

But a few months later the JSC published a huge proposal of changes to the MCM, including the Part IV materials for the new 120 offenses. Unfortunately, when the President finally signed the next Executive Order, he defined only the maximum punishments.

Because of this, today there are still no official model specifications (a.k.a. sample specifications) for Article 120, Article 120b, or Article 120c. But we do still have the JSC proposal including model specifications that, while not formally adopted (yet), are the next best thing.

So, working from the JSC proposal (as published in the Federal Register), I pulled out the proposed Part IV for Articles 120, 120b, and 120c, cleaned up the formatting, and saved it as a single Word document available here (link).

The file includes the elements, explanation, max punishments, and model specifications for each of the 44 ways of charging Article 120, the 17 ways of charging Article 120b, and the 6 ways of charging Article 120c.

The 2013 version of the indispensable Electronic Benchbook is available on the Army Trial Judiciary site at this link.

Unfortunately, the macro is still broken for users running the 64-bit version of Microsoft Office. If you’re trying to use the program and getting persistent error messages (“The macro cannot be found or has been disabled because of your Macro security settings.”), read this post for step-by-step instructions to fix the code.

Some users of the Army’s Electronic Benchbook have reported an unusual error message: benchbook error message

I’ve traced the problem to an error in the code that appears when using the 64-bit version of Microsoft Word. You can correct this problem yourself in just a few easy steps. Keep reading for an illustrated step-by-step guide to solve the problem.

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On Sunday I learned about two great opportunities for lawyers with a desire to help servicemembers. 

First, here is a link to the ABA’s Operation Stand By.  Operation Stand-By is a place for attorneys to help judge advocates:

Attorneys can register to join Operation Stand-By to volunteer time to receive calls or emails from military attorneys in need of attorney-to-attorney advice on state-specific legal information relating to your legal area of expertise, so they can further assist their servicemember clients.

Second, here is a link to the ABA’s Military Pro Bono Project.  The Pro Bono Project tells attorneys how they can help military families:

Attorneys can register to be contacted by the ABA Military Pro Bono Project with opportunities to provide pro bono assistance on behalf of military families when cases arise in your geographic and substantive area. Sign up for our weekly Case Opportunities listserv to stay up-to-date on the latest pro bono opportunities through the Project.

Both sound like great opportunities and Operation Stand By sounds like a great resource for judge advocates.  Thanks to Mary Meixner, the Project Director, for bringing it to our attention.

31(b)log announces that the 2012 Electronic Benchbook is now available at this link.

A note from the Trial Judiciary: The latest version of the Electronic Benchbook (v1.7) is now on the Trial Judiciary website.  You can also find the latest version of the “Unofficial Benchbook” on the website:

These versions of the Benchbook contain changes through 12-01.

CAAF’s order dismissing the Article 62 case of United States v. Hathorne, No. 12-6002/AF, __ M.J. __ (C.A.A.F. Apr. 26, 2012) (CAAFlog case page) (link to order), on ripeness grounds, seems like an ignominious end to an unusually interesting case, but the reason for the dismissal betrays that this case isn’t over, and that it shouldn’t be overlooked.

For those who haven’t been watching this case, Judge Matthews The Greatest provided a good background in this post:

Airman First Class (A1C) Hathorne was identified as a potential witness in the court-martial of another airman, A1C JF, scheduled to be tried on drug charges at Holloman AFB, New Mexico.  During the course of preparing for trial, base officials learned that A1C Hathorne himself apparently used illegal drugs, and — fearing he would not cooperate in A1C JF’s prosecution — decided to ask the convening authority to grant him immunity.  On 3 Feb 2011, the convening authority sent the base legal office a memorandum containing a grant of immunity for A1C Hathorne and an order to answer questions from counsel.

The next day, trial counsel interviewed A1C Hathorne without informing him of the convening authority’s correspondence.  A1C Hathorne was advised of his rights, waived them, and confessed to a single use of cocaine in 2010.  A1C Hathorne did not learn of the grant of immunity until four days later, when A1C JF’s counsel provided him a copy during their interview with him.  A1C JF pled guilty pursuant to a PTA, and a month later, the government preferred a single charge and specification of wrongful use of cocaine against A1C Hathorne.

The trial judge dismissed the charge based on the trial counsel’s withholding of the immunity, the government appealed, the CCA reversed, and everyone denied a stay pending the accused’s petition to CAAF. Trial proceeded, resulting in a conviction, a “subjurisdictional” sentence, and a “rubber stamp” Article 64 review. CAAF then granted review of the immunity issue, and of an issue asking if the court had jurisdiction to hear an Article 62 (interlocutory) appeal once trial is concluded.

Two things happened at oral argument that cause me to believe that this case is much more important than it appears. The first was discussed a bit in Col Sullivan’s post, A question of etymology:

Appellant’s counsel, my colleague Maj Spencer Kerr, stated, “Appellant has already been discharged and, as far as the post-trial review goes, he has received a subjurisdictional sentence.” (12:42) Senior Judge Effron asked, “Where does this word ‘subjurisdictional’ come from?  Does it come from our case law?  Do you agree that there’s such a word?”  Maj Kerr responded, “It’s been used frequently, Your Honor.”  Following some laughter, the following exchange occurred:

Judge Effron:  Did you find it in any of our case law?
Maj Kerr:  No, Your Honor.
Judge Effron:  Did you find it in any dictionary?
Maj Kerr:  No, Your Honor.

There was more to the exchange, which began at 10:40 of the argument audio and continued for about three minutes (I’ve uploaded an excerpt of just this section in MP3 format). Senior Judge Effron was discussing whether this appeal was ripe, due to the fact that the Judge Advocate General has the authority, under Article 69(d)(1), to refer the case to the CCA for review under Article 66. The Senior Judge wasn’t questioning the origin of the term “subjurisdictional,” he was questioning the legitimacy.

The avenues of review for an approved special court-martial sentence are either review by a CCA under Article 66 (punitive discharge or confinement for 1 year), or review by a judge advocate under Article 64 (all other cases). When the review is under Article 64, the Judge Advocate General can take further corrective action, under Article 69, on petition of the accused or sua sponte. That action can include referral to a CCA for review under Article 66. Graphically it looks like this:

Of course, there are few guarantees in this appellate process, and referrals from a JAG to a CCA are rare, just as are reviews by the Supreme Court (or even by CAAF, relatively speaking). But there is still the opportunity for an impressive six levels of appellate review of a special court-martial (compared to only two levels of a typical federal criminal conviction).

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In two recent unpublished opinions, addressing courts-martial from Camp Pendleton, CA, and Camp Lejeune, NC, the NMCCA took exception to the language used by convening authorities to suspend a sentence.

Both cases involve pretrial agreements that call for suspension of confinement “for the period of confinement served plus six months thereafter.” In implementing this provision, the convening authorities ordered:

…from the date of this action and continue for the period of confinement served plus six (6) months thereafter.”

United States v. Johnson, No. 201100629 (N-M Ct. Crim. App., April 5, 2012).

[t]he suspension period shall begin from the date of this action and continue for the remainder of the accused’s confinement plus 6 months thereafter.”

United States v. Gillespie, No. 201200024 (N-M Ct. Crim. App., April 12, 2012).

The CCA says this is wrong, and that “the six months would commence running when the appellant was released from confinement.” Johnson, Slip op. at 2; see Gillespie, Slip op. at 3 (time-served deal).

The issue arises because of an interesting confluence of factors (this isn’t discussed in the opinions, but comes from my experience). First is deferment, which is the postponement of the running of a sentence. Sentences to confinement begin to run on the date adjudged (whether or not actually served), and deferment postpones this until no later than the convening authority’s action. Next is suspension “for the period of confinement served plus…” This ensures that the period of suspension (probation) doesn’t end until the set time after the accused is released from confinement (so that he’s not on probation only while in confinement). Then there’s the fact that the convening authority can’t suspend a sentence except in his action. Finally, there’s the question of intent, since the pretrial agreement is interpreted in accordance with the principles of contract law.

Commonly, pretrial agreements will call for deferment of all confinement that is to be suspended, and then suspension for the time served plus some number of months (i.e., six months). If an accused actually serves one month and the balance of confinement is to be suspended for that plus six months, the suspension is for a total of seven months. Since the suspension can’t happen until the convening authority takes his action, one could reason that the seven month suspension begins on the date of the action.

Perhaps the pretrial agreements should be more explicit on when the period of suspension is to end (i.e., six months from the later of either the date sentence is announced or the date the accused is released from the unsuspended period of confinement). However, it looks like for now the CCA is going to make this interpretation.

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