CAAFlog » Practicum

Yesterday, in this post, I noted CAAF’s dismissal of a petition for lack of jurisdiction. I speculated that the absence of jurisdiction was caused by the appellant and his counsel missing the petition deadline.

My speculation was wrong. The pleadings (discussed below) reveal that the deadline wasn’t missed. Rather, prior to petitioning CAAF, the appellant withdrew his appeal.

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The JSC has published a very useful set of PDF updates to the 2012 Manual for Courts-Martial. They are all available at the JSC’s site here, and are also listed and linked below:

  • Appendix 2 – UCMJ Updated as of FY15 NDAA. PDF
  • Part II – Rules for Courts-Martial Updated as of June 2015. PDF
  • Part III – Military Rules of Evidence Updated as of June 2015. PDF
  • Part IV – Art. 81 Updated as of June 2015. PDF
  • Part IV – Arts. 92/93 Updated as of June 2015. PDF
  • Part IV – Arts. 120-120c Updated as of June 2015. PDF
  • Part IV – Art. 131 Updated as of June 2015. PDF
  • Part IV – Art. 134 Obst. of Just. & Wrongful Interf. Updated as of June 2015. PDF

Some assembly required.

In United States v. Salyer, 72 M.J. 415 (C.A.A.F. 2013) (CAAFlog case page), CAAF reversed a child pornography conviction, and dismissed the charge with prejudice, after finding the uncured appearance of unlawful command influence in the trial counsel’s access and use of a military judge’s personnel record to seek the judge’s recusal, and in a supervising counsel’s ex parte communication with the judge’s supervisor to complain about the judge’s rulings. The case was our #4 Military Justice Story of 2013.

In a recent decision in United States v. Hutchinson, No. 38503 (A.F. Ct. Crim. App. Jun. 29, 2015) (link to slip op.), the AFCCA addresses a somewhat similar set of facts. Raising concerns about speedy trial issues, the trial counsel (prosecutor) repeatedly asked the military judge to hold a session of court to address any speedy trial concerns. The judge repeatedly denied the Government’s request to go on the record. Then:

the chief regional military judge (CRMJ) for the central region (who was also the military judge’s supervisor and rater) called the military judge. According to the testimony of the military judge, his supervisor informed him that he had received a call from the staff judge advocate (SJA) to the special court-martial convening authority for this case. The CRMJ indicated the SJA said the military judge was being recalcitrant, and the CRMJ asked the military judge for information on the situation. Having just received two electronic requests for an Article 39(a), UCMJ, session from trial counsel, the military judge understood exactly what his supervisor was referring to, and he then explained the chronology of the case to the CRMJ. He felt the need to do this because his judicial temperament had been questioned to his supervisor. . . .

As he considered the matter after the call, however, the military judge became annoyed and unhappy. His impression was that the SJA was unhappy with his decision to not hold an Article 39(a), UCMJ, session and considered it important enough to call the military judge’s supervisor to complain about his performance and professionalism in a pending matter in an ongoing court-martial and to make the government’s strong desires known, all in an apparent attempt to influence the proceedings. This action by the SJA caused the military judge to “think twice” about his actions in denying the government’s prior requests.

A few hours later, the military judge received a motion from the government, asking again that he convene an Article 39(a), UCMJ, session. This time, the military judge granted the government’s request. . . .

Slip op. at 5-6. The military judge did not recuse himself but a different judge was detailed to the case because the original judge was transferring. The appellant ultimately pleaded guilty to conspiracy, wrongful sale of military property, larceny, and disorderly conduct, in violation of Articles 81, 108, 121, and 134, and was sentenced to confinement for 38 months and reduction to E-1. Pursuant to a pretrial agreement, the convening authority reduced the confinement to 19 months. Then, on appeal, the appellant asserted the existence of an appearance of unlawful command influence in the ex parte communications with the judge.

Writing for a three judge panel of the AFCCA, Senior Judge Hecker makes three conclusions: (1) that the issue of UCI was not (and could not be) waived by the appellant’s guilty pleas and pretrial agreement; (2) that the appellant has made a colorable showing of the appearance of unlawful command influence; (3) that the appearance is harmless beyond a reasonable doubt.

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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.