Here is a link to the order list, dated today, from the Supreme Court’s conference this past Monday. There are no orders in any of the six military justice cases considered in the conference, and so all were presumably denied certiorari. The six cases are:
- Finch v. United States, No. 13-1440 (SG waived response; pending conf. on Sep. 29) (CAAFlog case page)
- Hornback v. United States, No. 13-1533 (SG waived response; pending conf. on Sep. 29) (CAAFlog case page)
- Manciagonzalez v. United States, No. 14-5146 (jurisdictionless pet.; SG waived response; pending conf. on Sep. 29)
- Hatley v. United States, No. 14-5131 (jurisdictionless pet.; SG waived response; pending conf. on Sep. 29)
- Newton v. United States, No. 14-5284 (jurisdictionless pet.; SG waived response; pending conf. on Sep. 29)
- Swiger v. United States, No. 14-6021 (jurisdictionless pet.; SG waived response; pending conf. on Sep. 29)
Zach has previously written on McMurrin v. United States and the merits of the petition.
For the appellate literati there is an interesting issue lurking in McMurrin which is not clearly addressed in his petition, but which may be addressed by the Solicitor General – that is the question of the court’s jurisdiction to entertain the petition.
NIMJ has the permission of the parties to submit an amicus petition. A copy of the amicus brief is here.
You will see that we (disclosure, I am a director of NIMJ), raise the jurisdiction question, and seek to answer it.
As you will know, servicemembers have more limited access to the Supreme Court than a civilian appellant and “terrorists” housed at Guantanamo Bay, Cuba. The inequality has been discussed off and on, and there have been attempts within Congress to give equal access. See e.g. here, here, here, here, and here for some of the discussion.
CAAF upended lesser-included offenses jurisprudence in the military justice system with its opinions in United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008) (discussed here) (finding that in Article 134, clause 1 & 2 are not LIOs of clause 3), United States v. Miller, 67 M.J. 385 (C.A.A.F. 2009) (discussed here) (finding that a simple neglect under Article 134 is not a LIO of every enumerated article), and United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010) (discussed here) (returning to the elements test for determining LIOs).
Applying those cases, CAAF determined that negligent homicide (in violation of Article 134) is not a lesser-included offense of either murder (in violation of Article 118) or involuntary manslaughter (in violation of Article 119) in a pair of cases decided on the same day: United States v. Girouard, 70 M.J. 5, 9 (C.A.A.F. 2011) (link to slip op.), and United States v. McMurrin, 70 M.J. 15, 18 (C.A.A.F. 2011) (link to slip op.). I discussed both cases in a 2011 post titled Pushing the LIO Easy Button (and noted a humorous citation in a post titled A Mobius Strip of Citation).
McMurrin involved a Sailor who, in 2008, went on a cocaine and heroin binge with a fellow Sailor (update/clarification: McMurrin used only cocaine while the other Sailor combined the two drugs). The other Sailor died at the end of the night after McMurrin left him in the bushes to “sleep it off.” Among other charges, McMurrin was charged with involuntary manslaughter in violation of Article 119, but he was convicted of negligent homicide in violation of Article 134 as a lesser-included offense. Involuntary manslaughter is a homicide caused by culpable negligence, while negligent homicide requires only simple negligence. However, as an enumerated offense under Article 134, negligent homicide must also be prejudicial to good order and discipline or of a nature to bring discredit upon the armed forces; an additional element not found in the Article 119 charge. So, applying Miller and Jones, the NMCCA set aside the finding of guilty of involuntary manslaughter in a published, en banc opinion. United States v. McMurrin, 69 M.J. 591 (N-M.Ct.Crim.App. 2010) (link to slip op.). The Judge Advocate of the Navy certified the case to CAAF, where the CCA was affirmed (link to CAAF op.).
Because McMurrin’s homicide conviction was reversed, the CCA ordered a sentence rehearing. But when the case was returned to the convening authority, charges were added, including a charge of negligent homicide under Article 134. McMurrin was then tried and convicted of the new negligent homicide charge, and sentenced for both the new and old convictions. On appeal he asserted that the convening authority’s action adding charges exceeded the scope of the mandate on remand, but the NMCCA rejected that argument in an unpublished opinion. United States v. McMurrin, No. 200900475 (N-M.Ct.Crim.App. Jun 27, 2013) (discussed here) (link to slip op.). CAAF then denied review.
On August 29 McMurrin filed a cert petition with the Supreme Court. The petition is available here.
When a prosecutor commits persistent and severe misconduct, are a judge’s curative instructions insufficient to neutralize the misconduct (as the Eleventh Circuit has held) or do the instructions remain an effective antidote (as the U.S. Court of Appeals for the Armed Forces has held)?
Page 21 of the brief takes something of a shot at the NMCCA:
On appeal, the U.S. Navy-Marine Corps Court of Criminal Appeals (N-M.C.C.A.) affirmed. The opinion is reproduced at App. 31a. Adopting a laissez-faire approach to prosecutorial misconduct, that court assumed without deciding that it occurred. It then tested for prejudice and found no harm.
Of the Eleventh Circuit, pages 23-24 of the brief explain:
Nearly sixty years after Berger, the U.S. Court of Appeals for the Eleventh Circuit addressed a similar, persistent form of prosecutorial misconduct. See generally United States v. Crutchfield, 26 F.3d 1098, 1100 (11th Cir. 1994) (observing a record “replete with examples of unquestionable prosecutorial misconduct.”). The prosecutor there, as in Petitioner’s case, engaged in “[s]everal lines of questioning” that elicited irrelevant and improper character evidence. Id. Also there, like here, “the record reflect[ed] numerous instances in which the prosecutor simply ignored the court’s rulings on relevancy and improper character evidence objections.” Id. at 1102. Consistent with Berger’s special concern for persistent misconduct, the Eleventh Circuit opined that “[w]hen improper inquiries and innuendos permeate a trial to such a degree as occurred in this case, we do not believe that instructions from the bench are sufficient to offset the prejudicial effect suffered by the accused.” Crutchfield, 26 F.3d at 1103 (emphasis added). Concluding that “a jury cannot always be trusted to follow instructions to disregard improper statements[,]” id. (citing United States v. McLain, 823 F.2d 1457, 1462 n.8 (11th Cir. 1987)), the Eleventh Circuit then reversed and remanded for a new trial.
Of CAAF’s decision, page 26 of the brief outlines a moral hazard:
[T]he [CAAF] majority ultimately returns to the curative instructions, underscoring their dispositive nature. Id. at 161. (“[T]he fact that the panel acquitted Appellant of other, weaker drug charges indicates that it took the military judge’s instructions to disregard impermissible character evidence seriously.”). *FN 8.
*FN 8: In so finding, the lower court sends an unfortunate message to prosecutors; namely, these improper tactics are worth employing in a weak case. By eliciting improper evidence and making improper argument, prosecutors can turn a total acquittal into a partial one, understanding that result weighs in favor of affirmance on appeal. This danger is real, as the prosecutor here sought to admit improper evidence, arguing to the judge that it was found “to be harmless beyond a reasonable doubt after the appellate court looked at that.” App., infra, 41a. Putting a stop to this unfortunate message supplies an additional reason for this Court to grant this important petition.
It’s been a relatively long time since a cert petition in a military justice case (the last one I tracked was Dalton v. United States, No. 13-589 (synopsis in this TWIMJ post) (cert denied on Jan. 10, 2014)). But last Sunday I noted a cert petition in Finch v. United States, No. 13-1440 (CAAFlog case page).
I received a copy of the petition and it’s available here. The question presented is:
[W]hether a divided Court of Appeals for the Armed Forces erred when it affirmed Petitioner’s sentence in violation of Ashcroft v. Free Speech Coal., 535 U.S. 234 (2002) and Alleyne v. United States, 133 S. Ct. 2151 (2013)?
The petition concludes:
The crux of the issue in the present case is whether the offenses for which Petitioner was found guilty are directly analogous to 18 U.S.C. § 2252A(a)(2) and (5). In a 3-2 decision, the Court of Appeals for the Armed Forces held that it is.
However, in coming to its decision, it appears the majority did not consider how U.S.C. § 2252A(a)(2) and (5) have been modified by Ashcroft. As noted in the dissent by the Honorable Margaret Ryan, Court of Appeals for the Armed Forces, “the United States Code may constitutionally criminalize only child pornography that either involves actual children or is obscene.” Finch, 73 M.J. at 150 n.2; see also Ashcroft, 535 U.S. at 251.
That issue was not considered by the majority when it determined the federal statute was essentially the same as the charged offense. Put simply, because the federal code cannot charge someone with the possession or distribution of virtual child pornography while the military can, the crimes are not directly analogous. Because there exists no statute in federal law analogous to the offenses for which Petitioner was found guilty (see Ashcroft), the maximum confinement Petitioner should have faced was four months for each specification, or eight months total. See Beaty, 70 M.J. at 45.
Further, even assuming the statutes were analogous, in order to punish the Petitioner under the higher federal maximums, his guilt to possession of actual images would have to be proven beyond a reasonable doubt. Alleyne, 133 S. Ct. at 2160. That did not occur. Instead, Petitioner was only found guilty of possession and distribution of images that had no requirement (or proof) that they “include actual images of minors,” as articulated by the military judge.
Pet. at 13-15.
Beyond all the gnashing of teeth and tearing of clothes over the various proposals to dismantle the Uniform Code of Military Justice in an effort to eliminate “sexual assault” in the military, there are some who envision a much more terrifying future.
Last month I noted (here and here) the Supreme Court’s consideration of United States v. Kebodeaux, No. 12-418. SCOTUSblog has a great writeup of the case in its argument preview here. In short, Kebodeaux was convicted by a special court-martial in 1999 of carnal knowledge, arising from a “consensual” sexual relationship with a 15 year old. He moved to Texas and registered as a sex offender, but failed to update his registration when he moved within Texas in 2007. He was arrested in 2008, indicted for violating the federal Sex Offender Registration and Notification Act (SORNA) (enacted in 2006), and convicted.
The district court denied a constitutional challenge to the application of the statute to Kebodeaux, and a panel of the Fifth Circuit affirmed. But then the Fifth Circuit reversed in a sharply-divided en banc opinion, finding that because Kebodeaux was unconditionally released after he served the sentence of the court-martial, the federal government lacked the power to “reassert” authority over him under SORNA when he only moved within a state. The Government then petitioned SCOTUS, which granted review.
So the federal government wants to preserve the constitutionality of SORNA as applied to pre-SORNA offenses. A fairly narrow question, right? Tell me if you think so after you read the following segment from the transcript of the oral argument before SCOTUS on Wednesday, April 17, 2013 (audio here).
Note: If you’re drinking coffee, put down the cup before you read further.
MR. DREEBEN (Deputy Solicitor General): Justice Alito, I think the most helpful way to do that would be for me to progress through a series of examples that illustrate how protecting the public against a Federal sex offender is a legitimate aim under the Necessary and Proper Clause to implement the underlying constitutional authority.
JUSTICE ALITO: Yes.
MR. DREEBEN: So start with a sex offender who commits a sex offense in the military, is tried, court-martialed and sentenced. Subject to cruel and unusual punishment limitations, due process limitations, et cetera, that individual can be incarcerated, placed on supervised release potentially up to life. A condition of supervised release, well-recognized and now mandated by Federal law, is that that individual register as a sex offender. And the reason that that is tied to Federal law is that when an individual violates Federal law it is a legitimate purpose of Congress to protect the public against recidivism by that individual. So that’s the criminal example that I believe is undisputed.
Now, suppose that the Federal Government didn’t actually get the sex offender while he was in the military. It missed the crime, but later information comes to light still within the statute of limitations that shows that while this person was in the military they committed a sex offense. This court in United States ex rel. Toth v. Quarles made clear that that individual can be tried in an Article III court for his criminal violation even though he’s out of the military. It’s enforcing the rules that were impressed upon him at the time while he was in the military.
Now let me give a civil example and then I will bring it right back to this case. Suppose that Congress concludes that sex offenses in the military are a very serious problem and that there are a lot of people who have escaped prosecution because of lax interest in pursuing those crimes. And after a period of years, it sets up a board of inquiry and it says this board of inquiry is going to look into sex offenses that were committed at the time that people were in the military, even if they’re out of the military, and we’re going to subpoena people to testify, and if individuals are determined in a civil proceeding to have committed sex offenses they may have their military records revised, they may lose military benefits, and they may have other civil sanctions imposed upon them.
JUSTICE ALITO: When you say in a civil proceeding, you mean?
MR. DREEBEN: Yes, noncriminal. Noncriminal.
JUSTICE SCALIA: So it’s just by a preponderance of the evidence we think this guy probably, you know, 51/49, committed a sex crime.
MR. DREEBEN: Not going to be a criminal punishment that’s imposed at the end of the day.
JUSTICE SCALIA: So just — just more -more likely than not is the test.
MR. DREEBEN: That’s an acceptable level of proof for the civil law.
And if Congress can do that in order to protect the integrity of the military and to promote confidence in the military, then it’s a very small step, if any step at all, to SORNA.
For those with skeletons in their closets, now might be a good time to take your framed honorable discharge certificate off the wall…
Today the Golden CAAF II was spotted hanging hooves off Waikiki. Cowabunga!
For those of you who are new to CAAFlog, the Golden CAAF is a trophy that we send to any counsel who gets a cert grant to review a CAAF decision. The Golden CAAF I was awarded to Code 46 for the Denedo grant.
Will the Golden CAAF II soon be returning to the Mainland, destination DuPont Circle or Palo Alto? We should know the answer to the former at 1000 EDT a week from today.
Yesterday’s SCOTUSblog petition of the day was Behenna v. United States, No. 12-802.
The cert petition in Ali v. United States, No. 12-805, has been circulated for the Supremes’ Thursday, 9 May conference. That means we’ll likely know the result at 1000 on Monday, 13 May.
Too bad the Kabul Klipper has sworn off blogging. I’d be interested in the odds he places on whether the Golden CAAF II will be making a trip to DuPont Circle.
Here’s the Solicitor General’s opposition to the cert petition in Ali v. United States, No. 12-805, dealing with the permissibility of court-martialing a civilian contractor accompanying U.S. forces in a combat zone.
The cert petition is available here.
The Questions Presented by the cert petition are:
1. Whether Congress’s decision not to create federal district court jurisdiction for the trial of a class of civilians supporting military forces overseas provides sufficient constitutional justification for subjecting such civilians to trial by court-martial.
2. Whether a citizen of a foreign country serving as a civilian contractor in support of the United States military’s mission overseas is entitled to Fifth and Sixth Amendment rights in connection with criminal prosecution by the United States.
Here are the QPs as presented by the SG’s opp:
Under 10 U.S.C. 802(a)(10), “persons serving with or accompanying an armed force in the field” during a “declared war or a contingency operation” may be tried for violations of the Uniform Code of Military Justice (UCMJ) in a court-martial. Petitioner, a citizen of both Iraq and Canada who served as a civilian interpreter with a U.S. Army unit in Iraq, was charged in a court- martial with three violations of the UCMJ. He pleaded guilty and was sentenced to 115 days of confinement previously served. The questions presented are as fol- lows:
1. Whether Congress lacked the power under Arti- cle I of the Constitution to authorize the exercise of court-martial jurisdiction over petitioner.
2. Whether the exercise of court-martial jurisdiction over petitioner violated the Fifth and Sixth Amendments.