CAAFlog » September 2014 Term » United States v. Sullivan

CAAF decided the Coast Guard case of United States v. Sullivan, 74 M.J. 448, No. 15-0186/CG (CAAFlog case page) (link to slip op.), on Wednesday, August 19, 2015. The court finds that it was harmless error for the convening authority to categorically exclude flag officer from the pool of potential members, and that the military judge’s extensive personal and professional relationships with the court-martial participants does not raise an appearance of bias, affirming the decision of the Coast Guard CCA and the appellant’s convictions and sentence.

Judge Ohlson writes for the court, joined by all but Chief Judge Erdmann who dissents from the majority’s conclusion about an appearance of bias in the military judge.

The appellant is a senior Coast Guard Captain (O-6), with 27 years of service at the time of trial, who was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of a single specification of wrongful use of cocaine in violation of Article 112a. He was sentenced to pay a $5,000 fine and to be reprimanded. That sentence did not trigger automatic review by the CCA, but the Judge Advocate General of the Coast Guard referred the case to the CCA court under Article 69(d). The CCA issued an unpublished opinion last September (discussed here) affirming the findings and sentence, and then CAAF granted review of two issues:

I. Whether the Government carried its burden of proving that the convening authority’s categorical exclusion of all flag officers was harmless.

II. Whether the military judge abused his discretion in denying challenges from both parties to his impartiality based on prior personal relationships with individual military counsel, the accused, trial counsel, several members, several witnesses, and the staff judge advocate.

In Wednesday’s opinion CAAF unanimously finds that the Government has met its burden to prove that the exclusion of flag officers was harmless, and it splits 4-1 to find that a reasonable person familiar with all the circumstances of the case would not conclude that the military judge’s impartiality might reasonably be questioned.

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

United States v. Sullivan, No. 15-0186/CG (CAAFlog case page): Oral argument audio.

United States v. Quick, No. 15-0347/MC (CAAFlog case page): Oral argument audio.

CAAF will hear oral argument in the Coast Guard case of United States v. Sullivan, No. 15-0186/CG (CAAFlog case page), on Tuesday, May 12, 2015, at 9 a.m. The case involves the conviction of a senior Coast Guard Captain (O-6), with 27 years of service, of wrongful use of cocaine, and CAAF will consider two issues:

I. Whether the Government carried its burden of proving that the convening authority’s categorical exclusion of all flag officers was harmless.

II. Whether the military judge abused his discretion in denying challenges from both parties to his impartiality based on prior personal relationships with individual military counsel, the accused, trial counsel, several members, several witnesses, and the staff judge advocate.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of a single specification of wrongful use of cocaine in violation of Article 112a. He was sentenced to pay a $5,000 fine and to be reprimanded. That sentence did not trigger automatic review by the CCA, but the Judge Advocate General of the Coast Guard referred the case to the court under Article 69(d). The CCA issued an unpublished opinion last September (discussed here) affirming the findings and sentence, and then CAAF granted review.

The factual basis for the issues that CAAF will review are closely tied to Appellant’s status as a senior Coast Guard officer. The court-martial members selected by the convening authority for Appellant’s trial were all Captains (like Appellant):

Before signing the convening order, the convening authority told his staff judge advocate (SJA) and Deputy SJA that he in-tended to exclude all flag officers from the panel. In a stipulation of expected testimony, the par-ties agreed that the convening authority, if called to testify under oath, would say that he excluded flag officers because of their busy schedules. However, as found by the military judge, the convening authority made no effort to deter-mine whether flag officers would be in fact available for the court-martial.

App. Br. at 3 (citations to record omitted). But Appellant raised this issue at trial, and the military judge rejected it, ruling that:

The convening authority’s consideration of flag officer availability for court member duties was motivated by a desire to select members who would actually serve on the panel, as opposed to officers who would be detailed and then excused because they were not available. There is no evidence of a desire or attempt to stack the court.

Gov’t Br. at 4 (quoting ruling). The judge also found that assuming an improper selection of members, any error was harmless.

The factual basis for the second issue is that both the Government and the Defense moved for the military judge to disqualify himself based upon his personal relationships with the trial participants. These relationships were the product of the small size of the Coast Guard, and particularly the Coast Guard judge advocate community. The military judge refused to refuse himself, but he did independently (though unsuccessfully) seek out a replacement judge to preside over Appellant’s court-martial.

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I discussed the Coast Guard CCA’s decision in United States v. Sullivan, No. 001-69-13 (C.G. Ct. Crim. App. Sep. 25, 2014), in this post, commenting that the case was notable for a number of reasons including that it involves a Coast Guard Captain (O-6) who was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of a single specification of wrongful use of cocaine in violation of Article 112a. He was sentenced to pay a $5,000 fine and to be reprimanded. That sentence did not trigger automatic review by the CCA, but the Judge Advocate General of the Coast Guard referred the case to the CCA under Article 69(d).

Now the case goes to CAAF:

No. 15-0186/CG. U.S. v. Michael E. Sullivan. CCA 001-69-13. On consideration of the petition for grant of review of the decision of the United States Coast Guard Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

I. WHETHER THE GOVERNMENT CARRIED ITS BURDEN OF PROVING THAT THE CONVENING AUTHORITY’S CATEGORICAL EXCLUSION OF ALL FLAG OFFICERS WAS HARMLESS.

II. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN DENYING CHALLENGES FROM BOTH PARTIES TO HIS IMPARTIALITY BASED ON PRIOR PERSONAL RELATIONSHIPS WITH INDIVIDUAL MILITARY COUNSEL, THE ACCUSED, TRIAL COUNSEL, SEVERAL MEMBERS, SEVERAL WITNESSES, AND THE STAFF JUDGE ADVOCATE.

Briefs will be filed under Rule 25.

The Coast Guard CCA’s unpublished opinion in United States v. Sullivan, No. 20140925 (C.G. Ct. Crim. App. Sep. 25, 2014) (link to unpub. op), is notable for a number of reasons. For starters, the case involves a Coast Guard Captain (O-6) who was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of a single specification of wrongful use of cocaine in violation of Article 112a. He was sentenced to pay a $5,000 fine and to be reprimanded. That sentence does not trigger automatic review by the CCA, but the Judge Advocate General of the Coast Guard referred the case to the court under Article 69(d).

The CCA considered numerous assertions of error, ultimately rejecting them and affirming the findings and sentence. One assertion of error – involving the rebuttal testimony of a Government witness – caught my attention.

The charge against the appellant was based on a positive urinalysis result. The appellant’s defense was based on the assertion that his wife’s drug use resulted in the appellant’s “innocent and unwitting exposure to cocaine.” Slip op. at  12. In support of this assertion, the appellant’s wife “testified during the defense case concerning her procurement, storage and consumption of cocaine.” Slip op. at 12. But in the Government’s case in rebuttal:

Inspector D, a Senior Inspector for the Contra Costa County District Attorney’s Office, was offered and qualified as an expert in street-level narcotics. (R. at 1957.) He testified, based on his experience as an undercover investigator, concerning the standard process for purchasing powder cocaine, and typical practices for using powder cocaine. (R. at 1959-69.) His descriptions differed in several ways from Appellant’s wife’s descriptions of her experience and practices.

Slip op. at 11. The Defense objected to the expert’s testimony. The CCA explains that “the military judge conducted a lengthy Article 39(a) session—which included a full preview of Inspector D’s testimony—and heard extensive argument from counsel before determining that Inspector D had specialized knowledge that would be helpful to members charged with determining the facts of the case,” but it does not otherwise describe the judge’s reasoning in permitting the testimony. Slip op. at 12.

What immediately comes to mind is last term’s decision in United States v. Flesher, 73 M.J. 303 (C.A.A.F. Jul 8, 2014) (CAAFlog case page), where a divided CAAF reversed a conviction for aggravated sexual assault after determining that the judge failed to conduct the appropriate analysis prior to allowing a former sexual assault response coordinator to testify as an expert witness, and that the record ultimately did not support allowing such testimony. In particular, Judge Ohlson’s opinion of the court focused on the six-part test from United States v. Houser:

(1) the qualifications of the expert, (2) the subject matter of the expert testimony, (3) the basis for the expert testimony, (4) the legal relevance of the evidence, (5) the reliability of the evidence, and (6) whether the probative value of the testimony outweighs other considerations.

Flesher, slip op. at 14 n.3 (citing Houser, 36 M.J. 392, 397 (C.M.A. 1993)). In Sullivan, the Coast Guard court doesn’t explain what – if any – analysis the judge conducted using these factors, and it seems like the testimony is unlikely to satisfy at least some of these factors. Instead, the CCA’s opinion focuses on value of the testimony for impeachment of the appellant’s wife.

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