In a petition filed today and available here, Second Lieutenant Dalmazzi seeks Supreme Court review of CAAF’s decision in United States v. Dalmazzi, __ M.J. __ (C.A.A.F. Dec. 15, 2016) (CAAFlog case page). The petition begins:
Since shortly after the Civil War, federal law has required express authorization from Congress before active-duty military officers may hold a “civil office,” including positions that require “an appointment by the President by and with the advice and consent of the Senate.” 10 U.S.C. § 973(b)(2)(A)(ii).
After President Obama nominated and the Senate confirmed Colonel Martin T. Mitchell as a judge of the Article I U.S. Court of Military Commission Review (CMCR), Judge Mitchell continued to serve on the U.S. Air Force Court of Criminal Appeals (AFCCA). The U.S. Court of Appeals for the Armed Forces (CAAF) rejected as moot Petitioner’s challenge to Judge Mitchell’s continued service on the AFCCA, because his CMCR commission had not been signed until after the AFCCA decided her case on the merits—even though she moved for reconsideration after the commission was signed.
The Questions Presented are:
1. Whether the Court of Appeals erred in holding that Petitioner’s claims were moot.
2. Whether Judge Mitchell’s service on the CMCR disqualified him from continuing to serve on the AFCCA under 10 U.S.C. § 973(b)(2)(A)(ii).
3. Whether Judge Mitchell’s simultaneous service on both the CMCR and the AFCCA violated the Appointments Clause.
Beyond raising the underling Appointments Clause issue (that is still before CAAF with United States v. Ortiz, No. 16-0671/AF (CAAFlog case page) and – by my count – 84 trailer cases as of yesterday, including one in which I represent the appellant in my civilian capacity), the petition also implicates the jurisdiction-limiting provisions of 28 U.S.C. § 1259 because CAAF’s per curiam opinion in this case vacated the grant of review.
Alas, the Golden CAAF II remains without a new home as the Supreme Court denied what was the best prospect of a certiorari grant in a Mil Jus case in some time. Yesterday’s orders list (here) denied certiorari in United States v. Akbar, No. 15-1257. Going to be a long cold winter without Mil Jus at SCOTUS again. At this rate, the Golden CAAF II will be a full grown steer (or would it be a cow, not sure we’ve determined gender) by the time it finds a home.
Here (subscription req’d) is a link to Marcia Coyle’s piece in the National Law Journal Supreme Court Brief discussing the Akbar cert. petition and amicus brief from NIMJ, featuring quotes from NIMJ’s Prof. Stephen Vladeck. From the portion visible outside the firewall:
In the past eight years, the Obama administration has been no stranger to charges it has violated separation of powers or exceeded its statutory authority. But a new charge comes from an unusual source—the military justice system—in a U.S. Supreme Court petition that has the potential to dismantle the military’s capital punishment scheme.
The Supreme Court received two additional briefs in support of the petition for certiorari in Akbar v. United States, No. 15-1257 (Akbar CAAFlog case page). The first from the National Association of Criminal Defense Lawyers (NACDL), here, supports the defense’s substantive argument in their petition asking for the SCOTUS to reverse its prior decision in Loving v. United States, 517 U.S. 748 (1996), which found the military’s capital sentencing scheme to be constitutional. See prior coverage here. The second from the Air Force and Navy-Marine Corps appellate defense shops, here, addresses the related issue, which is not directly addressed in the petition for certiorari, that trial defense counsel for the accused was not qualified, in accordance with prevailing standards, to handle a capital case.
Ring v. Arizona, 536 U.S. 584 (2002) held that aggravating factors in capital cases constitute elements of the crime that must be tried to a jury. Does it violate the Constitutional separation-of-powers or exceed statutory authority for the President, rather than Congress, to prescribe the aggravating-factor elements that permit a court-martial to impose a death sentence on a member of the armed forces.
Scintillating reading ladies and gentlemen, scintillating.
• AFCCA opinion
• Blog post: A significant confrontation clause decision from the AFCCA
• Blog post: CAAF grants USACIL additional time to file an amicus brief in Katso
• Appellant’s (Government) brief
• Appellee’s brief
• Amicus brief (Defense Forensic Science Center / U.S. Army Criminal Investigation)
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis
• Petition for certiorari
• Government’s response in opposition to petition for certiorari
• Petitioner’s reply
• Blog post: Certiorari denied
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.