CAAFlog » September 2014 Term » United States v. Katso

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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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

Significant military justice events this week: As discussed in this post, LexisNexis hosts a free breakfast & CLE-accredited symposium on Emerging Issues in Military Sexual Assault Prosecutions on Thursday, October 8, from 9 a.m. to 1 p.m. at the the National Press Club, Holeman Lounge, 529 14th St. NW Washington, D.C.

Additionally, the next meeting of the Judicial Proceedings Panel will occur this week, on Friday, October 9, 2015, from 9 a.m. to 5 p.m. at the Holiday Inn Arlington at Ballston, 4610 N. Fairfax Drive, Arlington, Virginia 22203. Additional details are available here.

This week at SCOTUS: A cert. petition was filed in Katso v. United States, No. 14-5008, on September 25, 2015. A copy of the petition is available here. Last term, in United States v. Katso, 74 M.J. 273 (C.A.A.F. Jun. 30, 2015) (CAAFlog case page), CAAF held that the testimony of a Government DNA expert – who did not conduct the DNA testing at issue in the case – did not violate the appellee’s constitutional right to confront the witnesses against him, reversing the published decision of the Air Force CCA and remanding the case for further proceedings.

Additionally, an application for extension of time to file a cert. petition was filed in Schloff v. United States, No. 15-0294, on October 2, 2015. Last term, in United States v. Schloff, 74 M.J. 312 (C.A.A.F. Jul 16, 2015) (CAAFlog case page), a sharply divided CAAF concluded that sexual contact, as defined by Article 120(g)(2) (2012), includes both body-to-body contact and object-to-body contact.

Finally, Buford isn’t among the cases granted review last week, and so was presumably denied. Until the Court updates its website, I’m tracking three military justice cases at the Supreme Court:

This week at CAAF: CAAF will hear oral argument in four cases this week; two each on Tuesday, October 6 and Wednesday October 7, 2015:

Tuesday, October 6, 2015, at 9:30 a.m.:

United States v. Cooley, No.15-0384/CG & 15-0387/CG (CAAFlog case page)

Certified Issues:
I. Whether the Coast Guard Court of Criminal Appeals erred by finding that pre-trial confinement can serve as per se prejudice for purposes of determining a violation of Article 10, Uniform Code of Military Justice.
II. Whether the facts and circumstances or Appelle’s case, considering the factors set out in Barker v. Wingo, 407 U.S. 514, 530 (1972) and applied to review of Article 10 by United States v. Birge, 52 M.J. 209, 212 (C.A.A.F. 1999), amount to a violation of Article 10, Uniform Code of Military Justice.

Granted Issue:
Whether the government violated Appellant’s rights under Article 10, UCMJ, when the Government possessed key evidence against Appellant on July 20, 2012 and Feberuary 5, 2013, yet made no move to prosecute Appellant for these offenses until June of 2013, despite his pretrial confinement from December 20, 2012.

Case Links:
• CGCCA opinion
Blog post: The Coast Guard CCA raises Article 10 from the dead
Blog post: The Coast Guard certifies Cooley
Blog post: AAF rejects expedited review in Cooley
Blog post: Cooley pursues habeas
Government brief on certified issues
Appellee’s brief on certified issues
Government’s reply brief
Appellee’s brief on granted issue
Government brief on granted issue
Appellee’s reply brief
Blog post: Argument preview

Followed by:

United States v. Wilder, No.15-0087/MC (CAAFlog case page)

Issue: Whether the promulgation of RCM 707 abrogated the “substantial information” rule originated in United States v. Johnson, 23 C.M.A. 91, 48 C.M.R. 599 (1974).

Case Links:
NMCCA opinion
• Blog post: Two interesting speedy trial decisions from the NMCCA
• Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

Wednesday, October 7, 2015, at 9:30 a.m.:

United States v. Busch, No.15-0477/AF (CAAFlog case page)

Issue: At the time of appellant’s alleged sexual abuse of a child offense, the President had not set the maximum punishment for the offense. The military judge used a later-enacted executive order to set the maximum punishment, even though it increased the confinement range from one year to fifteen years. Was the Ex Post Facto clause violated?

Case Links:
• AFCCA opinion
Blog post: The Air Force CCA grapples with R.C.M. 1003(c)(1)(B)
Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument preview

Followed by:

United States v. Killion, No.15-0425/AF (CAAFlog case page)

Issues:
I. Whether appellant’s conviction for provoking speech is legally insufficient because “under the circumstances” his words were not reasonably likely to provoke violence.
II. Whether the military judge’s instructions regarding provoking speech were deficient under the facts and circumstances of appellant’s case.

Case Links:
AFCCA opinion
Blog post: CAAF to review whether an appellant’s speech was sufficiently provoking
Appellant’s brief
Appellee’s (Government) brief (not currently available on CAAF’s website)
Appellant’s reply brief

This week at the ACCA: The next scheduled oral argument at the Army CCA is on October 22, 2015.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

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

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on October 8, 2015, at 10 a.m.:

United States v. Zambrano

Case summary: A military judge sitting as a special court-martial convicted the Appellant contrary to his pleas, of assault consummated by battery, in violation of Article 128, UCMJ, 10 USC § 928 (2012). The military judge sentenced the appellant to 125 days of confinement, reduction to pay grade E-1, and a bad conduct discharge. The convening authority approved the sentence as adjudged, and, except for the bad-conduct discharge, ordered the sentence to be executed.

Issues:
I. Whether the evidece is legally and factually sufficient.
II. An accused has a contitutional right to effective assistance of counsel. Here, the trial defense counsel failed to investigate possibly exculpatory text messages exchanged between one of the government’s main witnesses and the victim, as well as witnesses who might have impeached the credibility of the same witness. Was the defense counsel inffective?

CAAF decied the certified Air Force case of United States v. Katso, 74 M.J. 273, No. 14-5008/AF (CAAFlog case page) (link to slip op.), on Tuesday, June 30, 2015. CAAF holds that the testimony of an expert witness did not violate the appellee’s constitutional right to confront the witnesses against him, reversing the published decision of the Air Force CCA and remanding the case for further proceedings.

Judge Ryan writes for the court, joined by all but Judge Ohlson, who dissents.

The published opinion of the Air Force CCA provides the following facts:

While celebrating her 21st birthday with several friends, Senior Airman (SrA) CA became intoxicated after consuming between 15 and 20 drinks over the course of the evening. At an off-base bar and unable to return to the base on her own, she was assisted back to her room and fell asleep on her bed. SrA CA testified that she woke up when she felt “someone having sex with [her].” She said she was attacked by someone wearing denim pants, glasses, a beanie cap, and a coat. After SrA CA struggled against him, her assailant left, and SrA CA ran into another room and told a friend she had been raped. SrA CA subsequently identified [appellee] as her attacker.

United States v. Katso, 73 M.J. 630, __, slip op. at 2 (A.F. Ct. Crim. App. Apr. 11, 2014). DNA samples were collected from both SrA CA and the appellee. The samples were sent to the United States Army Criminal Investigations Laboratory (USACIL) for analysis, where a forensic examiner named Mr. Fisher conducted an examination and produced a report that showed a match between the appellee’s DNA profile and semen found in the samples taken from CA. In accordance with USACIL procedure, Mr. Fisher’s report was then reviewed by a second examiner, Mr. Davenport.

The Government intended to call Mr. Fisher to testify at trial about the DNA results, but he was unavailable due to a family emergency. So the Government offered the expert testimony of Mr. Davenport instead. Mr. Davenport testified over the objection of the Defense, which objected on confrontation grounds. The military judge overruled the Defense objection, ruling that Mr. Davenport could testify about his independent findings. But a three-judge panel of the Air Force CCA unanimously concluded that Mr. Davenport improperly repeated testimonial hearsay from Mr. Fisher during his trial testimony, and that this violated the appellee’s right to confrontation. The panel then split 2-1 to find that error prejudicial, reversed the convictions, and authorized a rehearing.

The Government certified the case to CAAF, with the following issue:

Whether the Air Force Court of Criminal Appeals erred when it found Appellee’s Sixth Amendment right to confrontation was violated when the military judge permitted, over Defense objection, the testimony of the Government’s DNA expert, and that the error was not harmless

CAAF now reinstates the appellee’s convictions of aggravated sexual assault, burglary, and unlawful entry. Judge Ryan’s majority opinion conducts a detailed Confrontation Clause analysis of the testimony of Mr. Davenport, however her ultimate conclusions are solidly based on CAAF’s own precedent. Specifically, as Judge Ryan explains:

In the absence of clear guidance from the Supreme Court, we are bound, within the constraints discernible from controlling precedent, to provide a clear rule for the military justice system. Fortunately, we already have a rule. This Court’s precedent makes clear that even when an expert relies in part upon “statements” by an out-of-court declarant, the admissibility of the expert’s opinion hinges on the degree of independent analysis the expert undertook in order to arrive at that opinion. Blazier II, 69 M.J. at 224-25.

Slip op. at 24. Applying this clear rule, Judge Ryan concludes:

Experts may “review and rely upon the work of others, including laboratory testing conducted by others, so long as they reach their own opinions in conformance with evidentiary rules regarding expert opinions.” Blazier II, 69 M.J. at 224. That is precisely what happened here.

Slip op. at 25.

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

United States v. McFadden, No. 12-0501/AF (CAAFlog case page): Oral argument audio.

United States v. Katso, No. 14-5008/AF (CAAFlog case page): Oral argument audio.

CAAF will hear oral argument in the certified Air Force case of United States v. Katso, No. 14-5008/AF (CAAFlog case page), on Tuesday, October 7, 2014. The Air Force CCA reversed Appellee’s convictions of aggravated sexual assault, burglary, and unlawful entry, for which he was sentenced to confinement for ten years, total forfeitures, and a dishonorable discharge. The court took this action after finding that a DNA expert who testified for the Government improperly repeated testimonial hearsay. The Judge Advocate General of the Air Force then certified the case to CAAF, with the following issue:

Whether the Air Force Court of Criminal Appeals erred when it found Appellee’s Sixth Amendment right to confrontation was violated when the military judge permitted, over Defense objection, the testimony of the Government’s DNA expert, and that the error was not harmless

The facts of the case are that:

While celebrating her 21st birthday with several friends, Senior Airman (SrA) CA became intoxicated after consuming between 15 and 20 drinks over the course of the evening. At an off-base bar and unable to return to the base on her own, she was assisted back to her room and fell asleep on her bed. SrA CA testified that she woke up when she felt “someone having sex with [her].” She said she was attacked by someone wearing denim pants, glasses, a beanie cap, and a coat. After SrA CA struggled against him, her assailant left, and SrA CA ran into another room and told a friend she had been raped. SrA CA subsequently identified [Appellee] as her attacker.

United States v. Katso, __ M.J. __, __, slip op. at 2 (A.F. Ct. Crim. App. Apr. 11, 2014). DNA samples were collected from both SrA CA and Appellee. The samples were sent to the United States Army Criminal Investigations Laboratory (USACIL) for analysis, where a forensic examiner named Mr. Fisher conducted an examination and produced a report that showed a match between Appellee’s DNA profile and semen found in the samples taken from CA. In accordance with USACIL procedure, Mr. Fisher’s report was reviewed by a second examiner, Mr. Davenport.

The Government intended to call Mr. Fisher to testify at trial, but he was unavailable due to a family emergency. So the Government offered the expert testimony of Mr. Davenport instead. Mr. Davenport testified over the objection of the Defense, which objected on Confrontation grounds. The military judge overruled the Defense objection, ruling that Mr. Davenport could testify about his independent findings. But a three-judge panel of the Air Force CCA unanimously concluded that Mr. Davenport improperly repeated testimonial hearsay from Mr. Fisher during his trial testimony, and that this violated Appellee’s right to confrontation. Id., slip op. at 6; Id., slip op. at 18 (Orr, S.J. concurring in part and dissenting in part). The panel then split 2-1 to find that error prejudicial, reversed the convictions, and authorized a rehearing.

In my analysis of the CCA’s opinion I thought that the following passage was particularly significant:

This case is unlike the typical urinalysis trial where a drug testing report is admitted into evidence tying the accused to the tested sample through chain of custody documents. Here, the prosecution did not admit Mr. Fisher’s report. As a result, the only evidence the members received linking the male DNA profile found in the victim’s swabs directly to the appellant – the penultimate issue in the case – came from Mr. Davenport’s testimony. We find as a matter of fact the record of trial does not definitively establish that Mr. Davenport had first-hand knowledge as to whom the known DNA sample or its corresponding profile belonged. He was able to identify the appellant by name only by repeating the testimonial statement contained in Mr. Fisher’s report that directly linked the appellant to the generated DNA profile. Without this connection, Mr. Davenport could testify that in his expert opinion the two DNA profiles Mr. Fisher created by purifying, quantifying, and copying the DNA found in the swabs he analyzed matched one another in certain respects, but consistent with the Confrontation Clause, Mr. Davenport could not identify the appellant by name.

Slip op. at 11-13 (emphasis added). I also noted that it’s not clear from the facts that there is any way the Government could have avoided this error and still used the DNA match at trial without the in-court testimony of Mr. Fisher. See United States v. Porter, 72 M.J. 335, __, slip op. at 5 (C.A.A.F. 2013) (CAAFlog case page) (per curiam) (affirming the NMCCA’s decision that reversed the convictions on confrontation grounds because “at no time during his testimony, however, did [the expert] specifically interpret or rely on the machine-generated data contained in the [drug testing report] to independently conclude that Appellee’s sample tested positive for [marijuana] and [cocaine].”).

The Government’s brief doesn’t appear to add facts that would change this analysis, nor does the Government (or Appellee) directly address this finding by the CCA. Instead, the Government argues that the CCA’s predicate legal analysis was wrong and that “the underlying scientific data generated during the forensic analysis was not hearsay and any statements relied upon by the government’s DNA expert from the original analysis were not offered to prove the truth of the matter asserted.” Gov’t Br. at 4. It follows this argument with an assertion that even if the statements and data were hearsay, they were not testimonial.

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USACIL is the United States Army Criminal Investigation Laboratory. It is part of United States Army Criminal Investigation Command (USACIDC) that reports directly to the Provost Marshal General, Headquarters, Department of the Army. See General Order 22, Oct. 16, 2006

United States v. Katso, __ M.J. __, No. 38005 (A.F. Ct. Crim. App. Apr. 11, 2014), cert. for rev. filed, __ M.J. __ (C.A.A.F. Jun. 9, 2014) (CAAFlog case page), is a significant Confrontation Clause decision by the Air Force Court of Criminal Appeals. In Katso a three-judge panel of the court led by Chief Judge Roan found that a surrogate DNA expert who testified for the Prosecution improperly repeated testimonial hearsay, depriving the appellee of his constitutional right to confront the examiner who actually conducted the DNA analysis (but was unexpectedly unavailable for trial due to a family emergency). The CCA then split 2-1 to find that error prejudicial, reversing the convictions for aggravated sexual assault, burglary, and unlawful entry, for which the appellee was sentenced to confinement for ten years, total forfeitures, and a dishonorable discharge. I analyzed the CCA’s opinion in this post.

The Judge Advocate General of the Air Force certified Katso to CAAF with the following issue:

Whether the Air Force Court Of Criminal Appeals erred when it found Appellee’s Sixth Amendment right to confrontation was violated when the military judge permitted, over Defense objection, the testimony of the Government’s DNA expert, and that the error was not harmless.

The DNA analysis was conducted by USACIL, and CAAF’s daily journal for yesterday reveals that the organization wants to be heard in the case:

INTERLOCUTORY ORDERS

No. 14-5008/AF. United States, Appellant v. Joshua KATSO, Appellee. CCA 38005. On consideration of the motions filed by the Defense Forensic Center, United States Army Criminal Investigation Laboratory, to file an amicus curiae brief in support of Appellant and to extend time to file a proposed amicus curiae brief in support of Appellant, it is ordered that said motions are hereby granted.  The brief of amicus curiae will be filed on or before September 10, 2014.

I think it very interesting that CAAF granted a motion to file an amicus brief from an Army command separate from the Army’s Appellate Government Division.

Pursuant to Article 67, UCMJ, 10 U.S.C. § 867, CAAF’s jurisdiction includes (in part) cases where the court grants review “upon petition of the accused and on good cause shown,” and cases that “the Judge Advocate General orders sent to the Court of Appeals for the Armed Forces for review.” The different standards in these provisions create an inherent difference between an accused’s petition for review and a Government appeal in the form of an order from a JAG. But nothing prevents a JAG from ordering CAAF to review an issue for the benefit of an accused and thereby give the accused standing before the court equal to that available to the Government.

However, the Judge Advocate General of the Air Force recently ordered CAAF to review a sizable  number of cases under circumstances that almost exclusively benefit the Government. I discussed these cases in an April post titled: The appearance of bias in the certification of cases by the Judge Advocate General of the Air Force.

In that post I also discussed ten other Air Force cases that the JAG didn’t certify but that I felt warranted certification because they raised significant legal issues. Unlike the cases that were certified, the ten uncertified cases involved issues that would benefit the accused service members. And all of those cases remain uncertified (though CAAF did grant review in one of them). Analyzing these cases, I concluded that the JAG’s apparent eagerness to compel CAAF review of issues for the benefit of the prosecution, but not for the defense, creates “an appearance of bias [that] is a threat to the entire military justice system.” I also wrote:

Unfortunately, there’s no easy answer to the growing appearance of bias in the Air Force certification process. A rush of anti-prosecution certifications would just invoke cynicism. So too would the failure to certify pro-prosecution issues strongly deserving of further review (such as the AFCCA’s recent opinion reversing the convictions on confrontation grounds in United States v. Katso, __ M.J. __, No. 38005 (A.F.Ct.Crim.App. Apr. 11, 2014) (discussed here) (link to slip op.)).

Now CAAF’s daily journal for Monday reveals that the Air Force JAG is continuing this trend:

No. 14-5008/AF. U.S. v. Joshua KATSO. CCA 38005. 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 THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT FOUND APPELLEE’S SIXTH AMENDMENT RIGHT TO CONFRONTATION WAS VIOLATED WHEN THE MILITARY JUDGE PERMITTED, OVER DEFENSE OBJECTION, THE TESTIMONY OF THE GOVERNMENT’S DNA EXPERT, AND THAT THE ERROR WAS NOT HARMLESS

I still think that Katso is deserving of review by CAAF (after all, my writeup of the CCA’s opinion is more than 2,100 words long), and certification was the only way the court would get the case. But as deserved as this certification is, it is still part of a disturbing (and disappointing) trend.

In a published opinion in United States v. Katso, __ M.J. __, No. 38005 (A.F.Ct.Crim.App. Apr. 11, 2014) (link to slip op.), the AFCCA reverses convictions of aggravated sexual assault, burglary, and unlawful entry, for which the appellant was sentenced to confinement for ten years, total forfeitures, and a dishonorable discharge. A three-judge panel of the court led by Chief Judge Roan finds that a DNA expert who testified for the Prosecution improperly repeated testimonial hearsay, depriving the appellant of his constitutional right to confrontation, and the panel split 2-1 to find that error prejudicial. The court reverses the convictions and authorizes a rehearing.

The fact of the case are that:

While celebrating her 21st birthday with several friends, Senior Airman (SrA) CA became intoxicated after consuming between 15 and 20 drinks over the course of the evening. At an off-base bar and unable to return to the base on her own, she was assisted back to her room and fell asleep on her bed. SrA CA testified that she woke up when she felt “someone having sex with [her].” She said she was attacked by someone wearing denim pants, glasses, a beanie cap, and a coat. After SrA CA struggled against him, her assailant left, and SrA CA ran into another room and told a friend she had been raped. SrA CA subsequently identified the appellant as her attacker.

Slip op. at 2. DNA samples were collected from both SrA CA and the appellant. The samples were sent to the United States Army Criminal Investigations Laboratory (USACIL) for analysis, where a forensic examiner named Mr. Fisher conducted an examination and produced a report that showed a match between the appellant’s DNA profile and semen found in the samples taken from CA. In accordance with USACIL procedure, Mr. Fisher’s report was reviewed by a second examiner, named Mr. Davenport.

The Prosecution intended to call Mr. Fisher to testify at trial, but he was unavailable due to a family emergency. So the Prosecution offered the expert testimony of Mr. Davenport instead. Mr. Davenport testified over the objection of the Defense, with the Defense “arguing [that] the appellant’s right to confront Mr. Fisher, the witness who had performed key steps in the DNA analysis that was to be used against him at trial, would be violated.” Slip op. at 2. During a pretrial hearing, Mr. Davenport explained that:

during his technical review of Mr. Fisher’s report, he examined the case file and reviewed the documents submitted by AFOSI to ensure the tag numbers were properly reflected on the report confirming that evidence in fact came into the laboratory and was properly documented. He also examined the report to ensure all steps of the testing process were conducted and recorded, the positive and negative controls were tested, and the lot numbers were written down. As part of the technical review, Mr. Davenport testified that although he did not reconstruct the DNA profiles previously developed by Mr. Fisher (as described in steps 1 through 7 above), he did examine the raw data that was created during the generation of the DNA profile by running the information through a computer program to produce a statistical frequency determination. He personally interpreted the data to determine whether the DNA profiles matched and then compared his findings with those of the original analyst to verify the results. This same process was repeated for all known samples and submitted items of evidence. Following this, Mr. Davenport concluded the semen found on the swabs taken from the victim in this case contained the appellant’s DNA profile.

Slip op. at 5. The military judge denied the Defense motion, concluding that “Mr. Davenport could testify concerning his independent findings without violating the Confrontation Clause. This included providing his independent opinion about the reliability of the testing procedures used, the findings and results, and the frequency statistics related to those findings and results.” Slip op. at 5. Mr. Davenport then testified along these lines at trial. Mr. Fisher’s report was not admitted into evidence.

The three-judge panel of the CCA unanimously concludes that Mr. Davenport improperly repeated testimonial hearsay from Mr. Fisher during his trial testimony, and that this violated the appellant’s right to confrontation. Slip op. at 6; slip op. at 18 (Orr, S.J. concurring in part and dissenting in part).

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