CAAFlog » September 2014 Term

In United States v. Katso, 74 M.J. 273 (C.A.A.F. Jun. 30, 2015) (CAAFlog case page), CAAF reversed the published decision of the Air Force CCA that found a Confrontation Clause violation in the testimony of a Government DNA expert who did not conduct the DNA testing at issue in the case, concluding that the expert merely (and properly) reviewed and relied upon the work of others to reach his own opinions.

The Air Force CCA’s short-lived opinion would have been a significant Confrontation Clause decision, and CAAF’s decision was a dramatic reversal for Airman Basic (E-1) Katso whose convictions of aggravated sexual assault, burglary, and unlawful entry, and whose sentence of confinement for ten years, total forfeitures, and a dishonorable discharge, had been reversed by the Air Force CCA, with a rehearing authorized. Katso sought certiorari of CAAF’s decision, but it was denied, and the case was returned to the Air Force CCA for further review.

There, however, things got even more interesting, leading to a second published decision of the Air Force CCA, the award of 365 days of confinement credit to Katso, and now a second certification back to CAAF.

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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.

In an amicus brief filed at the same time as the Government’s response to the petition for certiorari in Akbar (CAAFlog case page),  University of Virginia School of Law professor Aditya Bamzai asserts that:

Marbury [v. Madison, 5 U.S. (1 Cranch) 137 (1803)] bars the Court from hearing this case. The provision that petitioner invokes (see Pet. 1) to establish certiorari jurisdiction, 28 U.S.C. § 1259, violates Article III, section 2, and Marbury’s holding by authorizing this Court to issue writs directly to executive branch officers.

Br. at 2.

The brief is available here.

The Government’s response opposing the petition for certiorari in Akbar v. United States, No. 15-1257 (CAAFlog case page) is available here.

Thanks to our friend for sending the brief.

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.

Our prior coverage of the cert. petition is here and here.  H/t JB/SV

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.

Here is the NIMJ amicus brief in support of the Petition for Certiorari in Akbar v. United States, No. 15-1257.  The general theme of the brief is that “in contrast to [] civilian criminal convictions, Congress specifically intended for [the Supreme] Court to take a more active role in supervising military convictions on direct appeal.”  Brief at 18.

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Love the argument in the Akbar v. United States, No. 15-1257, Petition for Certiorari (here).

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.

The Supreme Court denied certiorari in Katso v. United States, No. 14-5008 (CAAFlog case page).

Case Links:
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

This week at SCOTUS: The Court denied the cert petition in Schloff. The Court extended the time for filing a response in Sullivan to February 29.

I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking four cases:

This week at CAAF: The next scheduled oral argument at CAAF is on February 23, 2016.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on February 17, 2016.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on February 2, 2016.

This week at the CGCCA: The Coast Guard CCA’s oral argument schedule shows no scheduled oral arguments.

This week at the NMCCA: The NMCCA’s website shows no scheduled oral arguments.

Significant military justice event this week: The Judicial Proceedings Panel will hold a public meeting on Friday, January 22, 2016, beginning st 9 a.m., at the Holiday Inn Arlington at Ballston, 4610 N. Fairfax Drive, Arlington, Virginia 22203. Additional details are available here.

This week at SCOTUS: The Court denied the cert petition in Arness.

A request for an extension of time to file a cert petition was filed in Akbar v. United States. In United States v. Akbar, 74 M.J. 364 (C.A.A.F. Aug 19, 2015) (CAAFlog case page), CAAF narrowly affirmed Sergeant Akbar’s death sentence for his attack on his fellow soldiers in Kuwait in 2003. Akbar is one of only six military death row inmates: Gray, Loving, Akbar, Witt, Hennis, and Hasan.

I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking five cases:

This week at CAAF: The next scheduled oral argument date at CAAF is February 23, 2016.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Thursday, January 21, 2016, at 10 a.m.:

United States v. Crews, No. 20130766

I. Whether the military judge erred in instructing the panel that indecent exposure was a lesser included offense to indecent act.
II. Whether the evidence is factually sufficient to sustain the finding of guilty on the specification of Charge I (sexual abuse of a child).
III. Were appellant’s trial defense counsel ineffective by: 1) failing to object to Mrs. KC’s testimony repeating her daughter’s out-of-court statement that appellant had inappropriately touched her (see R. at 148); and 2) during the cross examination of DH, eliciting from DH that he made prior statements that appellant had touched KG, without requesting a limiting instruction from the military judge that such statements could not be considered for their truth?

This week at the AFCCA: The Air Force CCA will hear oral argument in one case this week: United States v. Peterman, No. 38705, at 2 p.m. on Friday January 22, 2016. No additional information is available on the CCA’s website.

This week at the CGCCA: The Coast Guard CCA’s oral argument schedule shows no scheduled oral arguments.

This week at the NMCCA: The NMCCA’s website shows no scheduled oral arguments.

Number 3 is a tough one for me to write about. In United States v. Akbar, CAAF, by a 3-2 vote, affirmed the death sentence for Sergeant Akbar following his murder of two officers and injuring 14 other servicemembers at the start of the Iraq War.

It’s tough to write about because capital cases are tough. I know, deep insight on our top ten list, right? But seriously, for those who have worked on capital cases, or even potential capital referrals, these cases consume you regardless of what side you are on. And while the government tosses out threats of capital referral and even does refer capital charges from time-to-time, the universe of counsel that have stood in the well before a panel in a capital case is thankfully small.

Col Sullivan described the difficulty of these cases like this once: when you are working on a capital case, it takes over your life. You end up feeling guilty going to the movies on a Saturday afternoon with you kids because you should be working on that motion, interviewing that witness, or preparing that expert.

Like any death-penalty case, this one involved dozens of issues. But the crux of the fight at CAAF was about ineffective assistance of counsel. The majority finds that the trial defense counsel were not ineffective and that their actions were the result of strategic decisions. There were two big decisions that the Court focused on. First, the decision to introduce Appellant’s diary in full to the members, over 300 pages that included plenty of harmful passages. Second, the decision to avoid “opening the door” to damaging cross-examination involving Appellant allegedly stabbing a MP with scissors days before the court-martial began. The defense avoided “opening the door” by not calling certain mitigation witnesses.

Another important issue was the voir dire. The defense employed a “ace of hearts” approach where they attempted to maximize the panel size on the theory that one vote means a life sentence so more members give higher odds of drawing that ace. Appellant ended up with 15 members on his panel.

A majority of the Court affirmed Appellant’s death-sentence. Of course, the President must sign the death-warrant before habeas proceedings can begin so realistically, we may be a decade or more away from any execution. Remember, as Dew Process pointed out, Gray was sentenced in 1988.

The dissent was powerful. Former CJ Baker wrote it, jointed by current CJ Erdmann. In it, he takes the whole system to task. Starting out powerfully, he writes, “Principle is hardest to hold in the face of countervailing virtue. For a judge that moment may arrive when knowing that is just, one must also consider what is fair. This is a case about whether or not the military justice system was fair, not whether it was just.”

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Coming in at number seven on our list was the CAAF’s decision this year in United States v. Gutierrez (CAAFlog case page). This case was notable for several reasons. First, it overturned what appeared to be settled case law in the area of HIV-positive service members who failed to disclose their status to their sexual partners. Since the case of United States v. Joseph, 37 M.J. 392 (C.M.A. 1993), it was understood that a service member with HIV who failed to inform a sexual partner of his HIV status could be charged with aggravated assault. In determining that sexual intercourse with an HIV-positive person constituted a means likely to cause death or grievous bodily harm, the Joseph court found that the focus “was not the statistical probability of HIV invading the victim’s body, but rather the likelihood of the virus causing death or serious bodily harm if it invades the victim’s body.” Id. at 397. To explain this concept, the Joseph court gave the analogy of an aggravated assault by firing a weapon at someone:

If we were considering a rifle bullet instead of HIV, the question would be whether the bullet is likely to inflict death or serious bodily harm if it hits the victim, not the statistical probability of the bullet hitting the victim. The statistical probability of hitting the victim need only be “more than merely a fanciful, speculative, or remote possibility.”

Id. at 396-397.

In Gutierrez, the CAAF refined the focus the on the word “likely” in the context of HIV cases and addressed the issue of whether the proverbial “hitting the victim” was more than a remote possibility. For the sexual acts alleged in Gutierrez, the CAAF found that the risk of infection was so small that it was not more than a “remote possibility” and therefore not “likely” to produce death or grievous bodily harm. The Court discussed the expert testimony in the case which established that the risk of infection of HIV from unprotected oral sex was almost zero, that the risk of infection in protected vaginal intercourse was a “remote possibility,” and that the risk of infection in unprotected vaginal intercourse was 1 in 500, which the Court also deemed to be “not likely” to occur. Therefore, the Court found that the evidence at trial was legally insufficient to find the accused guilty of aggravated assault.

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In United States v. Keefauver, 74 M.J. 230 (C.A.A.F. 2015) (CAAFlog case page), a unanimous CAAF held that a search of the appellant’s on-base residence was not a valid protective sweep. The case involved the controlled delivery of a package sent through the U.S. Mail that was suspected (and eventually discovered) to contain marijuana. Government agents obtained verbal authorization to conduct a controlled delivery of the package, but the appellant’s on-base residence was vacant. So the agents left the package by the front door, established surveillance, and waited. Eventually, the appellant’s stepson returned home and brought the package inside, and the agents followed immediately behind, seizing the package and apprehending the boy. Then, despite the immediate seizure of the suspicious package and the fact that the home was empty before the boy arrived, the agents conducted an unauthorized search of the property, discovering a significant quantity of drug-related materials. At trial that search was deemed lawful as a protective sweep, but CAAF reversed.

The items discovered during the search (other than the box of marijuana) were used against the appellant at trial (some as evidence to support additional charges). CAAF did not consider the possibility that the discovery of those items was inevitable, but instead remanded the case to the Army CCA to review that possibility in light of its decision regarding the search not being a lawful protective sweep.

Last week, the Army CCA completed its review and concluded that the discovery of the additional items was not inevitable:

There is no evidence at this point [when the search of the residence began -zds] that the agents possessed, or were pursuing, evidence or leads that would have inevitably led to the discovery of any other items in the home. At this particular point in time, investigators had no further evidence to support a finding of probable cause to search than when they originally made the search request. Thus, given that the investigators had, at this point, found only what they expected to find—the box—and nothing more, we cannot even say that “the routine procedures of a law enforcement agency would inevitably find the same evidence.” United States v. Owens, 51 M.J. 204, 210 (C.A.A.F. 1999). In short, the inevitable discovery doctrine cannot rescue any evidence found in the house beyond the box, and the admission of such evidence violated appellant’s Fourth Amendment rights.

United States v. Keefauver, No. 20121026, slip op. at 5 (A. Ct. Crim. App. Nov. 25, 2015) (citations omitted) (link to slip op.). “Further, the sheer mass of inadmissible evidence found in the house eliminates any possibility the error was harmless beyond a reasonable doubt.” Slip op. at 7. But beyond the quantity of illegally-obtained evidence, the CCA also notes the prosecution’s closing argument:

The importance of all of the evidence found in the home was underscored by trial counsel in his closing argument. For example, he began: “what does 5.25 pounds of marijuana, over $7,600 in cash, four unregistered firearms, numerous baggies, and a scale equal? We have a criminal enterprise.” Of the five things he mentioned, only one was properly in evidence.

Slip op. at 7.

The CCA sets aside the findings and authorizes a rehearing.

Last term, in United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. 2015) (CAAFlog case page), a unanimous CAAF found the appellant’s aggravated assault conviction (for engaging in sexual activity without disclosing to his partners that he was HIV-positive) to be legally insufficient because there was no more than a 1-in-500 chance that the appellant would infect his partners with HIV. In so deciding, CAAF expressly overruled two significant cases addressing the issue. However, with only a citation to Canadian law, CAAF affirmed a conviction for the lesser included offense of assault consummated by a battery.

The court remanded the case to the Air Force CCA for reassessment of the sentence or a sentence rehearing. In a decision released last week, the CCA reassesses the sentence, reducing the confinement from eight years to six and upgrading the dishonorable discharge to a bad-conduct discharge. United States v. Gutierrez, No. 37913 (A.F. Ct. Crim. App. Nov. 23, 2015) (link to slip op.). The CCA finds no error in the post-trial delay in the case (the sentence was adjudged in January 2011) and also that any delay was harmless.