CAAFlog » September 2013 Term » United States v. McPherson

CAAF decided the Air Force case of United States v. McPherson, No. 14-0348/AF & 14-5002/AF, 73 M.J. 393 (CAAFlog case page) (link to slip op.), on Thursday, August 21, 2014, holding that Article 12 does apply to service members confined in civilian facilities within the United States, but also holding that a service member must exhaust all administrative remedies prior to seeking judicial relief for a violation of Article 12. CAAF affirms the decision of the Air Force CCA and answers in the negative both the issue certified by the Judge Advocate General of the Air Force and the issue granted on petition of Senior Airman McPherson.

Judge Stucky writes for the court joined by all by Chief Judge Baker, who dissents from the majority’s conclusion about the applicability of Article 12 but concurs with the majority’s requirement for exhaustion of administrative remedies prior to judicial relief.

McPherson and the companion case of United States v. Wilson, No.s 13-0157/AF & 14-5003/AF, 73 M.J. 404 (C.A.A.F. Aug. 21, 2014) (CAAFlog case page) (link to slip op.), are about the application of Article 12 of the UCMJ, which states:

No member of the armed forces may be placed in confinement in immediate association with enemy prisoners or other foreign nationals not members of the armed forces.

It is the foreign nationals provision at issue in McPherson, because after McPherson was convicted of numerous offenses at a special court-martial and sentenced to confinement for eight months, reduction to E-1, a reprimand, and a bad-conduct discharge, he was initially confined at the Elmore County Detention Facility in Idaho (a somewhat-common practice, explicitly permitted by Article 58, used when there is no readily available military confinement facility). He was in that civilian facility for 15 days, and “for eight of those days, he was housed in an open bay with a foreign national known only as ‘The Mexican,’ who was awaiting deportation hearings.” Slip op. at 3-4 (quoting United States v. McPherson, 72 M.J. 862, 869 (A.F. Ct. Crim. App. 2013)). He did not complain about this co-mingling at the time or in his post-trial submissions to the convening authority, however he did raise the issue during the automatic review by the CCA.

The CCA reviewed the issue without specifically addressing the applicability of Article 12. Instead, the CCA determined that there was no excuse for failing to seek administrative relief and declined to provide any judicial relief. But the Government sought en banc reconsideration by the CCA, asserting that “the CCA had ‘implicitly establishe[d] as a matter of law in the Air Force that Article 12 applies to civilian confinement facilities.'” Slip op. at 4 (modification in original). The CCA denied the Government’s motion for reconsideration. The Judge Advocate General of the Air Force then certified the case to CAAF with the following issue:

Whether Article 12, UCMJ, applies to the circumstance where an accused and/or convicted member of the armed forces is confined in immediate association with foreign nationals in a state or federal facility within the continental limits of the United States.

CAAF subsequently granted review of a second issue upon petition by McPherson:

There is a split in the service courts. In this case and at least 10 unpublished cases, the Air Force Court of Criminal Appeals (AFCCA) has held that an appellant must exhaust administrative remedies before relief can be granted under Article 12, UCMJ. No other service court has held the same. Given the legislative history of Article 12, UCMJ, did the AFCCA err when it required appellant to exhaust administrative remedies before receiving relief?

This procedural posture establishes the Government as appellee and cross-appellant, and McPherson as appellant and cross-appellee, but I will refer to them as “the Government” and “McPherson” for simplicity.

Judge Stucky’s majority opinion answers both issues in the negative and wholly affirms the opinion of the CCA, explicitly establishing as a matter of law that Article 12 applies to civilian confinement facilities and firmly embracing the requirement that judicial relief for a violation of Article 12 requires that the prisoner first exhaust administrative remedies. While both sides lose in this analysis, I think the greater loss is suffered by the Government.

Read more »

Yesterday, on August 21, 2014, CAAF issued its opinions in United States v. McPherson, No. 14-0348/AF & 14-5002/AF, 73 M.J. 393 (CAAFlog case page) (link to slip op.), and United States v. Wilson, No.s 13-0157/AF & 14-5003/AF, 73 M.J. 404 (CAAFlog case page) (link to slip op.). Judge Stucky writes for the court in both cases, holding that Article 12 does apply to service members confined in civilian facilities within the United States, but that a service member must exhaust all administrative remedies prior to seeking judicial intervention for a violation of Article 12. Chief Judge Baker dissents in part from both cases, disagreeing on the majority’s conclusion about the applicability of Article 12.

I will publish a full analysis of each opinion on Monday.

Of the 32 cases argued at CAAF this term, only one remains undecided: United States v. MacDonald, No. 14-0001/AR (CAAFlog case page).

Audio of yesterday’s oral arguments is available at the following links:

United States v. Wilson, No. 14-5003/AF (CAAFlog case page): Oral argument audio.

United States v. McPherson, No. 14-0348/AF & 14-5002/AF (CAAFlog case page): Oral argument audio.

CAAF will hear the final scheduled oral arguments of this term beginning at 9:30 a.m. on Wednesday, June 4, 2014, in the companion cases of United States v. Wilson, No. 14-5003/AF (CAAFlog case page), and United States v. McPherson, No. 14-0348/AF & 14-5002/AF (CAAFlog case page). The Judge Advocate General of the Air Force certified the exact same issue in both of these cases:

Whether Article 12, UCMJ, applies to the circumstance where an accused and/or convicted member of the armed forces is confined in immediate association with foreign nationals in a state or federal facility within the continental limits of the United States.

Because these two cases involve the same certified issue, the same Government counsel, the same Defense counsel, and the Government’s brief in each case is nearly identical, they get a single argument preview. CAAF will hear oral argument in Wilson first and McPherson second, though they were decided by the CCA (each with a published opinion) in the opposite order.

Article 12 states:

No member of the armed forces may be placed in confinement in immediate association with enemy prisoners or other foreign nationals not members of the armed forces.

Senior Airman (SrA) McPherson was convicted of multiple offenses, some pursuant to and some contrary to his pleas, by a special court-martial composed of a military judge alone. He was sentenced to confinement for eight months, reduction to E-1, a reprimand, and a bad-conduct discharge. He served the first 15 days of that confinement in a civilian jail where he was housed in an open bay with a foreign national awaiting deportation (identified as The Mexican). SrA McPherson did not complain about this to anyone in authority prior to raising it at the Air Force CCA as an asserted violation of Article 12. Rejecting the asserted error, the CCA concluded:

The appellant waited until appellate review to raise the issue. . . . As a result, the Air Force was unable to investigate the claims, make a record of it for review, or have the opportunity to immediately correct the situation, as warranted. Therefore, we find no “unusual or egregious circumstance” to excuse the appellant’s failure to pursue available administrative remedies. See Wise, 64 M.J. at 471. Based on his failure to exhaust his administrative remedies and the absence of unusual or egregious circumstances, relief for his claim of a violation of Article 12, UCMJ, is not warranted.

United States v. McPherson, 72 M.J. 862, __, slip op. at 6 (A.F.Ct.Crim.App. Nov. 19, 2013). The JAG then certified the case to CAAF, challenging the CCA’s application of Article 12 to the facts of the case. Subsequently, CAAF granted review of a second issue in McPherson, but ordered no briefs:

Granted issue in McPherson: There is a split in the service courts. In this case and at least 10 unpublished cases, the Air Force Court of Criminal Appeals (AFCCA) has held that an appellant must exhaust administrative remedies before relief can be granted under Article 12, UCMJ. No other service court has held the same. Given the legislative history of Article 12, UCMJ, did the AFCCA err when it required appellant to exhaust administrative remedies before receiving relief?

Like SrA McPherson, Technical Sergeant (TSgt) Wilson was also confined post-trial in a civilian facility. TSgt Wilson was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of one specification of violating a lawful order in violation of Article 92 (he was acquitted of numerous other charges). He was sentenced to reduction to E-2, confinement for three months, and a bad-conduct discharge. He served the entire sentence to confinement in a local civilian jail because there was no nearby military confinement facility. Pursuant to a standing policy, the jail segregated TSgt Wilson from the other prisoners in order to avoid housing him with foreign nationals.

TSgt Wilson complained about this segregation in his post-trial submission to the convening authority, and then again to the Air Force CCA where he alleged that being held in isolation at the civilian jail constituted cruel and unusual punishment in violation of Article 55. The CCA rejected this assertion in a short unpublished opinion issued in 2012, finding that TSgt Wilson failed to show that jail officials were deliberately indifferent to his health and safety, and noting: “To the contrary, the evidence shows that jail officials segregated military prisoners from the general population to prevent commingling with foreign nationals in violation of Article 12, UCMJ.” United States v. Wilson, No. 37897, slip op. at 2 (A.F.Ct.Crim.App. Oct. 12, 2012). CAAF then summarily remanded the case for the CCA to consider whether Article 12 even applies, which the court did in a published opinion issued in January. In that opinion the CCA conducted an extensive analysis of the legislative history of Article 12, finding that:

In light of the plain meaning of Article 12, UCMJ, which contains no geographical limitation whatsoever, and made further clear by its legislative history, we conclude that Article 12, UCMJ, applies to members of the armed forces “everyplace,” to include confinement facilities within the continental United States.

United States v. Wilson, 73 M.J. 529, __, slip op. at 5 (A.F.Ct.Crim.App. Jan. 30, 2014). But the court concluded that “relief [wa]s not warranted for the following reasons: [the appellant’s] failure to exhaust administrative remedies, the lack of unusual or egregious circumstances, and his lack of a request for relief for any alleged Article 12, UCMJ, violation. Id., slip op. at 8 (emphasis added). The court explained that while TSgt Wilson did complain about the consitions of his confinement, he didn’t raise an Article 12 claim in any of his appellate pleadings, and “at oral argument, [his] counsel specifically rejected the argument that [Article 12] was violated.” Id., slip op. at 8 n.3. The JAG then certified the case to CAAF, challenging the CCA’s finding that Article 12 applies everyplace.

Considering the facts of these cases, it’s hard to understand why the Air Force JAG decided to use them to challenge the CCA’s interpretation of Article 12. In the first case (McPherson), the CCA rejected the appellant’s Article 12 claim by applying CAAF precedent that requires exhaustion of administrative relief prior to judicial intervention, thereby avoiding the more difficult question of statutory interpretation that the JAG now puts to CAAF. In the second case (Wilson), the CCA denied relief for a violation of Article 12 in part because the appellant didn’t claim a violation of Article 12. Moreover, the CCA only analyzed Article 12 in Wilson because CAAF remanded the case with instructions that the court do so.

One wonders whether someone at CAAF successfully tricked the Air Force JAG into certifying an issue that interests the court in two cases involving service member appellees who seem to have nothing to lose.

Read more »

CAAF granted review of an additional Article 12 issue in McPherson, and set the case for oral argument on June 4, 2014 (the last scheduled day of oral arguments in the term).

The AFCCA’s published decision in United States v. McPherson, 72 M.J. 862 (A.F.Ct.Crim.App. Nov. 19, 2013) (link to slip op.) got our attention when it was decided because of the way the CCA resolved the question of whether the appellant’s confession was adequately corroborated. Sam discussed the opinion in a post titled: AFCCA Goes Back to the Future to Find Corroboration for Confession.

The Judge Advocate General of the Air Force then certified the case to CAAF for review of a different issue, involving application of Article 12, which states:

No member of the armed forces may be placed in confinement in immediate association with enemy prisoners or other foreign nationals not members of the armed forces.

After the appellant was convicted, he was confined in a local civilian facility for 15 days. There was at least one foreign national who was not a member of the armed forces in the facility with him. Known only as “the Mexican,” the foreign national was awaiting deportation hearings. The appellant did not complain about his confinement, and did not raise the issue of a violation of Article 12 until appellate review.

Read more »

When Sam discussed, in this post, the Air Force CCA’s published opinion in United States v. McPherson, No. S32068, 72 M.J. 862 (A.F.Ct.Crim.App. Nov. 19, 2013) (link to slip op.), he marveled at the fact that “in the view of the AFCCA, an accused’s confession to possession of illegal drugs can be corroborated by evidence that did not exist until years after that possession.” He also provided a link to what must be a picture of the AFCCA’s parking lot:

Are these standard issue

The AFCCA affirmed the findings and sentence. But the Air Force JAG just certified the case to CAAF. Not because of the back-to-the-future theory of corroboration (not to be confused with the back-to-the-future theory of maximum sentence computation that was recently rejected by the NMCCA), or even because of some other allegation of error that got favorable treatment by the CCA. Rather, TJAG certified the fact that the CCA considered applying Article 12 to the facts of the case.

No. 14-5002/AF.  U.S. v. Michael C. MCPHERSON.  CCA S32068.  Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 this date on the following issue:

WHETHER ARTICLE 12, UCMJ, APPLIES TO THE CIRCUMSTANCE WHERE AN ACCUSED AND/OR CONVICTED MEMBER OF THE ARMED FORCES IS CONFINED IN IMMEDIATE ASSOCIATION WITH FOREIGN NATIONALS IN A STATE OR FEDERAL FACILITY WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES.

The CCA’s opinion discussed the Article 12 claim in a few short paragraphs (after noting that it wasn’t raised on its own, but rather as part of an IAC claim). The most significant of those paragraphs are these two:

The appellant was initially confined at the Elmore County Detention Facility in Idaho for 15 days. He alleges that for eight of those days, he was housed in an open bay with a foreign national known only as “The Mexican,” who was awaiting deportation hearings. The appellant and “The Mexican” played card games every night while in confinement, but he does not know his actual name. The appellant did not raise this as an issue in clemency, nor is there any evidence that he notified the local confinement officials of this issue.

The appellant did not make any complaints about a violation of Article 12, UCMJ, in his clemency petition even though his clemency request was submitted after he was transferred to the Naval Consolidated Brig Miramar. The appellant waited until appellate review to raise the issue. He did not notify anyone in his chain of command or at the confinement facility of the Article 12, UCMJ, violation at the time it was allegedly occurring, nor did he file a grievance or make an Article 138, UCMJ, complaint. See, e.g., United States v. Brandon, ACM 37399 (A.F. Ct. Crim. App. 22 March 2010) (unpub. op.). As a result, the Air Force was unable to investigate the claims, make a record of it for review, or have the opportunity to immediately correct the situation, as warranted. Therefore, we find no “unusual or egregious circumstance” to excuse the appellant’s failure to pursue available administrative remedies. See Wise, 64 M.J. at 471. Based on his failure to exhaust his administrative remedies and the absence of unusual or egregious circumstances, relief for his claim of a violation of Article 12, UCMJ, is not warranted.

Slip op. at 6. This certification sure seems like a quest for an advisory opinion. Of course, CAAF can dismiss a certified issue on mootness grounds (as it did last term in Humphries).

In a recent published opinion from AFCCA, United States v. McPherson, No. S32068, 72 M.J. 862 (Af. Ct. Crim. App. 19 Nov 2013), we learn two important things. First, if you’re going to break up with your girlfriend, you should probably wait until you get back from deployment and can retrieve the box of contraband steroids that you left in her possession. Otherwise, they might find their way over to AFOSI. This principle is what might be called a “criminal best practice.” The second thing we learn, and more relevant for the purposes of this blog, is that, in the view of the AFCCA, an accused’s confession to possession of illegal drugs can be corroborated by evidence that did not exist until years after that possession. If you’re having trouble wrapping your head around that, read on.

Read more »