CAAFlog » September 2014 Term » United States v. Schloff

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.

CAAF decided the interlocutory Army case of United States v. Schloff, 74 M.J. 312, No. 15-0294/AR (CAAFlog case page) (link to slip op.), on Thursday, July 16, 2015. A divided court concludes that sexual contact, as defined by Article 120(g)(2) (2012), includes both body-to-body contact and object-to-body contact. CAAF affirms the decision of the Army CCA that reversed the contrary conclusion by the trial judge, and the court remands the case for further proceedings.

Judge Ohlson writes for the court, joined by Chief Judge Baker and Judge Ryan. Judge Stucky dissents, joined by Judge Erdmann.

The appellant is a physicians assistant who was charged with five specifications of abusive sexual contact in violation of Article 120(d) (2012). All five specifications alleged that the appellant committed sexual contact by touching an individual patient’s breasts with a stethoscope. Each specification involved a separate alleged victim. Three specifications were referred to trial, and Appellant was convicted of one.

At trial, the appellant asserted that the specifications failed to state an offense because touching with a stethoscope does not constitute sexual contact. The judge deferred ruling on the issue until after the members found the appellant guilty of one specification and sentenced him to a dismissal. The judge then set aside the findings and sentence and dismissed the specification for failure to state an offense. The Government appealed and the Army CCA reversed the trial judge. CAAF then grated review of a single issue:

Whether the Army court erred in expanding the definition of a “sexual contact” to a touch accomplished by an object contrary to the plain language of Article 120(g)(2).

In today’s 3-2 opinion, CAAF narrowly concludes that the Army court did not err, that there is no ambiguity in the statutory definition of sexual contact, and that the definition includes “those instances where an accused touches a victim with an object.” Slip op. at 3.

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

United States v. Murphy, No. 14-0767/AR (CAAFlog case page): Oral argument audio.

United States v. Stellato, No. 15-0315/AR (CAAFlog case page): Oral argument audio.

United States v. Schloff, No. 15-0294/AR (CAAFlog case page): Oral argument audio.

CAAF will hear oral argument in the interlocutory Army case of United States v. Schloff, No. 15-0294/AR (CAAFlog case page), on Tuesday, April 28, 2015 (after the oral arguments in Murphy and Stellato). The court will consider a single issue:

Whether the Army court erred in expanding the definition of a “sexual contact” to a touch accomplished by an object contrary to the plain language of Article 120(g)(2).

I discussed the Army CCA’s opinion in this January post titled: Can touching with a stethoscope constitute sexual contact? Appellant is a physicians assistant who was charged with five specifications of abusive sexual contact in violation of Article 120(d) (2012). Three specifications were referred to trial, and Appellant was convicted of one.

All five specifications alleged that Appellant committed sexual contact by “touching with a stethoscope, the breasts of [an alleged victim] by making a fraudulent representation that the sexual contact served a professional purpose.” Each specification involved a separate alleged victim. The complete charge sheet is provided in the appendix to the Government’s brief.

Note: The charge sheet attached to the Government’s brief is not redacted. It shows Appellant’s full SSN and the rank and whole name of each alleged victim. The Government’s brief also includes unredacted extracts from the trial transcript. This appears to be a wholesale violation of CAAF’s 2010 order regarding electronic filing. 69 M.J. 204-06. See also Notice Regarding Case Information.

The definition of sexual contact is:

2) Sexual contact.—The term “sexual contact” means—

(A) touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, or degrade any person; or

(B) any touching, or causing another person to touch, either directly or through the clothing, any body part of any person, if done with an intent to arouse or gratify the sexual desire of any person.

Touching may be accomplished by any part of the body.

Article 120(g)(2), 10 U.S.C. § 920(g)(2) (2012). Appellant asserted at trial that touching with a stethoscope does not meet this definition and so the specifications failed to state an offense. The judge deferred ruling on the issue until after the members found Appellant guilty of one specification and sentenced him to a dismissal. The judge then set aside the findings and sentence and dismissed the specification for failure to state an offense. The judge ruled that:

The statutory language providing that “touching may be accomplished by any part of the body” unambiguously limits a sexual contact to a touching accomplished by some part of the accused’s body. Had Congress intended otherwise, they would have added the words “or object” at the end of that sentence. This conclusion is bolstered by the fact that Congress was aware of the distinction between body parts and objects, as reflected in its definition of sexual act in the same statute. That definition of sexual act, contained in Article 120(g)(1), provides that the penetration required for a sexual act may be accomplished “by any part of the body or by any object.”

App. Br. at Appendix A. The Government appealed and the Army CCA reversed, finding that touching with a stethoscope “if done under the requisite circumstances, can constitute a sexual contact.” United States v. Schloff, No. 20140708, slip op. at 5 (A. Ct. Crim. App. Dec. 16, 2014). The CCA’s decision was based on three factors: First, “the statute does not require direct contact.” Slip op. at 4. Second, it is “appropriate and proper to interpret ‘touching’ for purposes of Article 120, UCMJ, consistently with ‘touching’ for purposes of Article 128.” Slip op. at 4. Finally, while the military judge found that the statutory language that “touching may be accomplished by any part of the body” was a limitation on the reach of the statute, the CCA found that this sentence “is unambiguously permissive and not exclusive.” Slip op. at 5.

CAAF then granted review.

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Yesterday CAAF granted review in two cases; in both the Government prevailed on interlocutory appeals at the Army CCA:

No. 15-0294/AR. U.S. v. Christopher S. Schloff. CCA 20140708.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE ARMY COURT ERRED IN EXPANDING THE DEFINITION OF A “SEXUAL CONTACT” TO A TOUCH ACCOMPLISHED BY AN OBJECT CONTRARY TO THE PLAIN LANGUAGE OF ARTICLE 120(G)(2).

In accordance with Rule 19(a)(7)(A), briefs will not be filed.

I discussed the Army CCA’s opinion in Schloff in a post titled: Can touching with a stethoscope constitute sexual contact?

No. 15-0315/AR. U.S. v. Michael F. Stellato. CCA 20140453.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862, it is ordered that said petition is hereby granted on the following issues:

I.    WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED AS A MATTER OF LAW IN CONCLUDING THERE WAS NO DISCOVERY VIOLATION AND REVERSING THE MILITARY JUDGE’S REMEDY OF DISMISSAL.

II.   WHETHER THE ARMY COURT OF CRIMINAL APPEAL APPLIED AN ERRONEOUS VIEW OF THE LAW IN REQUIRING THE MILITARY JUDGE TO FIND “WILLFUL IGNORANCE, WILLFUL SUPPRESSION, OR OTHER MISCONDUCT” AS A CONDITION PRECEDENT FOR DISMISSAL WITH PREJUDICE FOR DISCOVERY VIOLATIONS.

In accordance with Rule 19(a)(7)(A), briefs will not be filed.

I analyzed the Army CCA’s opinion in Stellato in a post titled: The Army CCA finds “no support for the proposition that the trial counsel must seek exculpatory evidence outside of the government’s control or possession.”

The current version of Article 120 includes the following definition

(2) Sexual contact.—The term “sexual contact” means—

(A) touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, or degrade any person; or

(B) any touching, or causing another person to touch, either directly or through the clothing, any body part of any person, if done with an intent to arouse or gratify the sexual desire of any person.

Touching may be accomplished by any part of the body.

UCMJ art. 120(g)(2), 10 U.S.C. § 920(g)(2) (2012). If an accused touches an alleged victim with a stethoscope (while pretending to conduct a medical examination, perhaps), can that touching constitute sexual contact?

Yes it can, finds Judge Haight, writing for a three-judge panel of the Army CCA and granting a Government interlocutory appeal in United States v. Schloff, No. 20140708 (A. Ct. Crim. App. Dec. 16, 2014) (link to slip op.).

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