CAAFlog » September 2013 Term » United States v. Wilson

CAAF decided the Air Force case of United States v. Wilson, No.s 13-0157/AF & 14-5003/AF, 73 M.J. 404 (CAAFlog case page) (link to slip op.), on Thursday, August 21, 2014. Wilson is a companion case to United States v. McPherson, No. 14-0348/AF & 14-5002/AF, 73 M.J. 393 (C.A.A.F. Aug. 21, 2014) (CAAFlog case page) (link to slip op.), and echoes the holdings of McPherson that Article 12 applies to service members confined in civilian facilities within the United States and that service member must exhaust all administrative remedies prior to seeking judicial relief for a violation of Article 12. But CAAF finds that Article 12 was not violated in this case because Technical Sergeant Wilson was confined alone. The court answers the certified issue in the negative and affirms the decision of the Air Force CCA.

Judge Stucky writes for the court, joined by all but Chief Judge Baker who dissents with a single sentence that refers to his separate opinion in McPherson.

Appellee 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 Appellee from the other prisoners in order to avoid housing him with foreign nationals. Appellee 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 Appellee’s claim, 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 applies, which the court did in a published opinion issued in January, concluding that there is no geographical limitation to Article 12. United States v. Wilson, 73 M.J. 529 A.F. Ct. Crim. App. 2014). The Judge Advocate General of the Air Force then certified the case to CAAF with the exact same issue as the one certified in McPherson:

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.

But because Appellee never raised an Article 12 claim – he actually specifically rejected it during oral argument at the CCA – he asserted that CAAF lacked jurisdiction to consider the certified issue. Judge Stucky’s majority opinion rejects the assertion, finding that CAAF can consider the certified issue because “there is a justiciable case and controversy . . . [t]he CCA has rendered a “final action” in Appellee’s case . . . the applicability of Article 12 to TSgt Wilson is interwoven with the resolution of his complaints about confinement conditions.” Slip op. at 5. Appellee’s efforts to obtain further review of the actual circumstances of his segregated confinement is also rejected in a short footnote. Slip op. at 2 n.1.

Judge Stucky’s majority opinion is short – just barely over five pages – making it the shortest opinion of the court this term, and it avoids considering whether the segregation of Appellee in order to avoid a violation of Article 12 resulted in a violation of some other legal right. At the CCA, Appellee complained about his segregated confinement as cruel and unusual punishment, in violation of Article 55. The CCA’s analysis of that claim – now dispositive in this case – is somewhat unsatisfying:

The appellant’s claim fails because he has not established that jail officials were deliberately indifferent to his health and safety. 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. Such routine conditions of administrative segregation do not constitute cruel and unusual punishment under an Eighth Amendment analysis absent deprivation of life’s necessities or infliction of unnecessary pain. Avila, 53 M.J. at 101-02. Although the appellant questions the management decisions of the local jail, his questions are insufficient to show the required culpable state of mind.

United States v. Wilson, No. 37897, slip op. at 2 (A.F. Ct. Crim. App. Oct. 12, 2012). There is a wide range of possible deprivations that a service member might suffer between segregation to prevent commingling and deliberate indifference to health and safety.

In the conclusion of my analysis of McPherson I doubted that CAAF’s decision about the applicability of Article 12 would portend a flood of Article 12 claims. Wilson reinforces that conclusion because the segregation of Appellee from the rest of the jail population avoided the Article 12 issue altogether. But segregation also involves deprivation; of social interaction with other people and potentially of privileges (e.g., Appellee’s segregation meant that he did not have television privileges). The Government may avoid Article 12 claims by segregating military prisoners when they are held in civilian facilities, but it will invite a multitude of claims about the conditions of that segregation.

Case Links (Wilson):
AFCCA opinion (2012)
AFCCA opinion (73 M.J. 529)
Blog post: The back-to-the-future theory of certification?
Appellant’s (Government) brief
Appellee’s brief
Appellant’s (Government) reply brief
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

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 »

A number of notable entries appear on CAAF’s daily journal for last Friday:

The court granted and remanded an Army case (that it appears the CCA summarily affirmed) for further development of the record regarding a claim of ineffective assistance of counsel:

No. 14-0137/AR.  U.S. v. Daniella M. HOWARD.  CCA 20120844.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, said petition is granted on the following issue:

WHETHER APPELLANT WAS DENIED HER SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHERE DEFENSE COUNSEL FAILED TO CONDUCT A PROPER INVESTIGATION AND PRESENT VITAL EVIDENCE TO THE MILITARY JUDGE REGARDING THE DEFENSE OF DURESS AS A RESULT OF A SEXUAL ASSAULT BY A NONCOMMISSIONED OFFICER.

The decision of the United States Army Court of Criminal Appeals is set aside.  The record of trial is returned to the Judge Advocate General of the Army for remand to that court for further appellate inquiry on the granted issue.  The Court of Criminal Appeals will obtain affidavits from the trial defense counsel (military and civilian) that respond to Appellant’s allegation of ineffective assistance of counsel.  Under Article 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c) (2012), the Court of Criminal Appeals shall review the ineffective assistance of counsel issue in light of the affidavits and any other relevant matters.  See United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997).  If the court determines that a fact-finding hearing is necessary, that court shall order a hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). Once the necessary information is obtained, the court will complete its Article 66(c), UCMJ, review.  Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2012), shall apply.

The court received a certificate of review from the Air Force JAG in Wilson (previously discussed here), definitively establishing it as a companion case to McPherson (last discussed here).

No. 14-5003/AF.  U.S., Appellant v. Jimmy L. WILSON, Appellee.  CCA 37897.  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.

Appellant will file a brief under Rule 22(b) in support of said certificate on or before March 31, 2014.

The court denied review in Trank. Remember Trank? It’s the Army case with the Article 62 appeal that I discussed last November in a post titled: In the debate over whether an alleged victim should testify at an Article 32 hearing, the Army CCA has impeccable timing. Notably, CAAF granted a stay of proceedings just a week before it denied review (discussed in this post). It’s also worth mentioning that Rule 6 of CAAF’s rules gives the Chief Judge (or a judge performing his duties) the authority to grant a stay.

CAAF also denied review of the rehearing in McMurrin, ending the long saga of Fireman McMurrin who, in 2008, went on a cocaine and heroin binge with a fellow sailor who died at the end of the night after McMurrin left him in the bushes to “sleep it off.” See United States v. McMurrin, 70 M.J. 15 (C.A.A.F. 2011) (McMurrin II) (link to slip op.). I last discussed the case in this post, where I predicted (wrongly) that CAAF would grant review.

Finally, in this post I noted the NMCCA’s decision the set aside the findings and authorized a rehearing in United States v. Dougherty, No. 201300060 (N-M.Ct-Crim.App. Dec. 31, 2013) (link to slip op.). Considering that result, I was surprised to see this:

No. 14-0436/MC.  U.S. v. Daniel L. DOUGHERTY.  CCA 201300060.  Appellant’s motion to extend time to file the supplement to the petition for grant of review granted to March 19, 2014.

Thinking some more about the certification in McPherson, I wandered over to the AFCCA’s website where I found a recently published opinion in United States v. Wilson, No. ACM 3789, 73 M.J. 529 (A.F.Ct.Crim.App. Jan. 30, 2014) (link to slip op.). Last July, CAAF remanded Wilson for consideration of a single 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; AND, WHETHER THE RECORD IN THIS CASE PERMITS SUCH A CONCLUSION TO BE DRAWN WITHOUT THE NECESSITY OF FURTHER FACT-FINDING.

On January 30, 2014, the AFCCA answered this question in the affirmative, 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.

Slip op. at 5. The CCA denied the appellant relief on much the same grounds as in McPherson:

The appellant never sought administrative relief or even alleged that he was ever in immediate association with any foreign national. His complaints were instead directed towards the fact he was placed in solitary confinement. The appellant has not raised an allegation of a violation of Article 12, UCMJ, in any of his appellate pleadings before this court. Relief is not warranted for the following reasons: his 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.

Slip op. at 7-8 (see also footnote 3: “At oral argument, appellant’s counsel specifically rejected the argument that Article 12, UCMJ, 10 U.S.C. § 812, was violated.”).

The very next day, TJAG certified McPherson with an issue that – practically speaking – is a challenge to the CCA’s decision in Wilson. Fast work…