CAAF decided the Army case of United States v. Moss, No. 13-0348/AR, 73 M.J. 64 (CAAFlog case page) (link to slip op.), on Monday, January 27, 2014. A sharply divided court declines to address any of the granted issues in the case, which questioned whether Appellant received ineffective assistance from her military defense counsel when he gave an unsworn statement on her behalf during her trial in absentia. Instead, a narrow majority of the court finds that Appellant did not authorize the appeal to CAAF, and it vacates the grant of review.

Judge Erdmann writes for the court, joined by Judges Stucky and Ryan. Chief Judge Baker writes a lengthy dissent, joined by Senior Judge Effron.

Appellant was absent from her unit for approximately three years before she was captured and charged with desertion. Her detailed defense counsel successfully negotiated a pretrial agreement that capped her eventual confinement at six months, and they began planning her sentencing case. Then, two weeks before trial, Appellant again took flight (amazingly, she was not held in pretrial confinement pending trial). Appellant was then tried in absentia and convicted, by a special court-martial composed of officer members, of one specification of desertion in violation of Article 85, UCMJ.

But during the sentencing phase of the court-martial, Appellant’s detailed defense counsel read an unsworn statement to the panel in the first person, representing that it was Appellant’s statement. The statement included reference to a sick aunt, “Viola.” But the Government then called Appellant’s father in rebuttal, and he explained that there is no Aunt Viola. Appellant was then sentenced to reduction to E-1, forfeiture of $978.00 pay per month for twelve months, confinement for six months, and a bad-conduct discharge.

Best I can tell, Appellant’s whereabouts are still unknown. But she signed routine forms before deserting the second time that caused her to be assigned appellate defense counsel. That counsel made the claim of ineffective assistance of counsel that was rejected by the Army CCA and that CAAF was to consider (though, for reasons discussed in my argument preview, I think CAAF would have firmly rejected the claim). But at oral argument before CAAF, the court got very curious about whether Appellant had personally authorized the appeal of the CCA’s decision (a requirement discussed in United States v. Larneard, 3 M.J. 76, 82 (C.M.A. 1977)), and the court ordered additional briefing on four specified issues (discussed here), including:

Whether there is any evidence in the record that the Appellant has authorized an appeal to this Court, and if there is no such authorization, is there nonetheless a continuing duty to represent the Appellant, and if so, from where does this duty derive?

Judge Erdmann’s opinion explains that the appellate defense counsel acknowledges that Appellant did “not signed a specific authorization for appeal to this court nor had he spoken to her and obtained a verbal authorization to appeal on her behalf.” Slip op. at 6. Rather, he argued that:

Moss’s completion of the “Post Trial and Appellate Rights Advisement” constituted an implied authorization for such an appeal, and, when combined with counsel’s ethical duty of continued representation, he was required to pursue the appeal before this court on Moss’s behalf.

Slip op. at 6. Notably, Judge Erdmann’s majority opinion refers to Moss as “Moss,” while Chief Judge Baker’s dissent refers to her as “Appellant.” But the majority finds the “Post Trial and Appellate Rights Advisement” insufficient to authorize the appeal to CAAF:

ACCA. The language concerning a possible appeal to this court was informative only, and Moss’s exercise of her right to counsel before the ACCA cannot be construed to authorize a subsequent appeal to either this court or the Supreme Court.

Slip op. at 11. Surprisingly, the majority reaches this conclusion despite the parties agreeing otherwise:

The parties also agree that Moss’s completion of the “Post Trial and Appellate Rights Advisement” reflected her intent to appeal to this court and therefore constituted an implied authorization to proceed with the appeal.

Slip op. at 9. Instead, Judge Erdmann writes that “the attorney-client relationship was limited to representation before the ACCA.” Slip op. at 13. And he concludes that “since the decision to appeal to this court is personal to an appellant, and because Moss did not authorize the appeal, this court lacks statutory jurisdiction under Article 67(a)(3) and the appeal must be dismissed.” Slip op. at 14.

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I haven’t yet listened to Wednesday’s oral argument in United States v. Moss, No. 13-0348/AR (CAAFlog case page), but today CAAF ordered the parties to file briefs on four additional issues:

I. Whether the decision to appeal to this Court is a personal decision of the Appellant, and if so, in what manner may such a decision be made?
II. Whether there is any evidence in the record that the Appellant has authorized an appeal to this Court, and if there is no such authorization, is there nonetheless a continuing duty to represent the Appellant, and if so, from where does this duty derive?
III. In circumstances where the Appellant cannot be located during the time period available to file a petition for grant of review at this Court, what is the responsibility of appellate defense counsel in the context of the statutory time limit in Article 67, UCMJ, to file an appeal?
IV. Should this case be dismissed with prejudice under the holding in United States v. Schreck, 10 M.J. 226 (C.M.A. 1981)?

The court also specifically invited the other services’ appellate divisions to file amicus briefs.

Case Links:
• ACCA opinion
• Blog post: At a trial in absentia, defense counsel gave an unsworn statement, then invoked. CAAF understandably curious…
• Appellant’s brief
• Appellee’s (Government) brief
• Appellant’s reply brief
• Blog post: Argument preview
• CAAF argument audio
• Blog post: CAAF orders additional briefing

Audio from Wednesday’s oral arguments at CAAF is available at the following links:

United States v. Warner, No. 13-0435/AR (CAAFlog case page): Audio here.

United States v. Moss, No. 13-0348/AR (CAAFlog case page): Audio here.

CAAF will finish the first week of oral arguments in the September 2013 Term on Wednesday, September 18, 2013, with United States v. Moss, No. 13-0348/AR (CAAFlog case page). The case involves a trial in absentia by a special court-martial composed of officer members at Fort Stewart, Georgia, in 2011. Appellant was convicted, contrary to pleas entered on her behalf by the military judge, of desertion in violation of Article 85, UCMJ, and sentenced to reduction to E-1, forfeiture of pay for 12 months, confinement for six months, and a bad-conduct discharge.

But in this simple desertion case – where Appellant even deserted the trial – the issues before CAAF are anything but:

I. Whether Appellant was denied her Sixth Amendment right to effective assistance of counsel where the defense counsel made an unsworn statement on her behalf when she was tried in absentia and there is no evidence that she consented to the unsworn statement.
II. Whether Appellant was deprived of her right to conflict-free counsel when her defense counsel made an unsworn statement without her consent and subsequently invoked his Fifth Amendment rights and failed to assert that appellant was prejudiced.
III. Whether the military judge committed plain error when he allowed the defense counsel to make an unsworn statement on behalf of Appellant when she was tried in absentia.
IV. Whether the military judge abused his discretion when he found that there was no prejudice when the defense counsel read an unsworn statement without Appellant’s consent and then failed to instruct the panel to disregard the unsworn statement and Sergeant First Class M’s rebuttal testimony.

Appellant was absent from her unit for approximately three years before she was captured and charged with desertion. Amazingly, she was not held in pretrial confinement pending trial. Her detailed defense counsel successfully negotiated a pretrial agreement that capped her eventual confinement at six months, and they began planning her sentencing case. Then, two weeks before trial, Appellant again took flight.

Appellant’s trial on the merits seems to have proceeded normally (except for the empty chair where the accused normally sits, of course). But during the sentencing phase, Appellant’s detailed defense counsel “read an unsworn statement to the panel. While reading the unsworn statement, [counsel] spoke in the first person to represent that it was [Appellant’s] statement.” App. Br. at 3. The statement explained that Appellant deserted to care for her sick aunt, one “Viola Mitchell,” who had raised her. The statement ended with counsel saying:

I wanted to come back to my unit but there was nobody else to take care of my aunt and she couldn’t be left alone. I always planned on coming back.

App. Br. at 4. Unfortunately for Appellant, her father was also in the Army, and the Government called him as a rebuttal witness to explain that there is no Aunt Viola and Appellant was raised by Appellant’s mother and himself. A panel member then asked a few questions:

Q. Sergeant Moss, who raised Private First Class Moss?

A. Me and her mother.

Q. What is the relation of Viola Mitchell to Private First Class Moss?

A. Sir, I don’t know a Viola Mitchell.

Q. You don’t know Viola Mitchell?

A. No, sir.

App. Br. at 5. Oops. Unsurprisingly, Trial Counsel emphasized the fabricated story of Aunt Viola in the Government’s sentencing argument. But Defense Counsel also referred to the unsworn statement, discussing how Appellant had found her “beloved aunt” in a terrible state.

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On Thursday CAAF granted review in the (I’m not sure what adjectives to use here) case of United States v. Moss, No. 13-0348/AR, with the following issues:

I. Whether Appellant was denied her Sixth Amendment right to effective assistance of counsel where the defense counsel made an unsworn statement on her behalf when she was tried in absentia and there is no evidence that she consented to the unsworn statement.

II. Whether Appellant was deprived of her right to conflict-free counsel when her defense counsel made an unsworn statement without her consent and subsequently invoked his Fifth Amendment rights and failed to assert that appellant was prejudiced.

III. Whether the military judge committed plain error when he allowed the defense counsel to make an unsworn statement on behalf of Appellant when she was tried in absentia.

IV. Whether the military judge abused his discretion when he found that there was no prejudice when the defense counsel read an unsworn statement without Appellant’s consent and then failed to instruct the panel to disregard the unsworn statement and Sergeant First Class M’s rebuttal testimony.

The ACCA’s opinion is here. On the invocation issue, the ACCA said the following in a footnote:

We find the additional assignments of error—that the military judge abused his discretion by allowing the unsworn statement, that the military judge erred by not instructing the jury to disregard the unsworn statement (and related rebuttal testimony), and that appellant was deprived of her right to conflict-free counsel when her trial defense counsel subsequently invoked his Fifth Amendment rights after being questioned by the military judge about the unsworn statement—to be without merit.

Yikes!

CAAF also granted review in Unites States v. Payne, No. 13-0345/AF, with the following issue:

Whether the military judge improperly instructed the members of the elements for creation of child pornography.

The AFCCA’s opinion is here.