CAAFlog » September 2015 Term

On Friday the Supreme Court requested a response to the cert. petition in Sterling v. United States, No. 16-814 (CAAFlog case page).

Our #3 Military Justice Story of 2016 is CAAF’s blockbuster decision in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page).

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Two cases tie for the #8 spot on this year’s list: United States v. Sterling, 75 M.J. 407 (C.A.A.F. Aug. 10, 2016), cert. pet. filed, __ S.Ct. __ (Dec. 23, 2016) (CAAFlog case page), and the continuing saga of the court-martial prosecution of Army Sergeant Robert “Bowe” Bergdahl (CAAFlog news page).

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Petition available here.

(CAAFlog case page)

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Wednesday, October 26, 2016

Miscellaneous Docket – Summary Dispositions

No. 17-0009/AF. Sebastian P. LaBella, Petitioner v. United States, and United States Air Force Court of Criminal Appeals, Respondents. On consideration of the petition for extraordinary relief in the nature of a writ of error coram vobis or, in the alternative, writ-appeal petition for review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby denied.

(CAAFlog case page).

CAAF’s daily journal reflects the following from last Friday, October 7:

No. 17-0009/AF. Sebastian P. LaBella v. U.S. and U.S. Air Force Court of Criminal Appeals. Notice is hereby given that a petition for extraordinary relief in the nature of a writ of error coram vobis or, in the alternative, writ-appeal petition for review of  the decision of the United States Air Force Court of Criminal Appeals on application for extraordinary relief in the nature of a writ of error coram nobis was filed this date.

Case Links (CAAFlog case page):
AFCCA opinion
Blog post: CAAF remands AFCAA case for consideration in light of Barberi
AFCCA opinion after remand
Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument preview
Blog post: The amicus brief of the Air Force Appellate Defense Division in LaBella (and the Government’s response)
• Oral argument audio
CAAF opinion
Blog post: Opinion analysis
AFCCA order denying petition for extraordinary relief
Blog post: The AFCCA denies relief for IAC in LaBella
Blog post: Did LaBella miss another deadline?
Blog post: LaBella missed the deadline… again!
Blog post: LaBella tries and tries again…

In the Air Force case of United States v. LaBella, 75 M.J. 52 (C.A.A.F. Dec. 11, 2015) (CAAFlog case page), LaBella’s detailed military defense counsel failed to petition CAAF within the 60-day jurisdictional time limit for doing so. The Air Force CCA subsequently granted a motion to reconsider, ostensibly resetting the 60-day clock. CAAF, however, unanimously held that the CCA lacked jurisdiction to grant the motion to reconsider after the 60-day CAAF deadline expired. Accordingly, because the 60-day time limit had expired, CAAF lacked jurisdiction to review the case and it dismissed LaBella’s petition as untimely filed.

LaBella subsequently sought extraordinary relief from the Air Force CCA, asserting ineffective assistance of counsel (for his detailed military defense counsel’s failure to file a timely petition at CAAF). The CCA denied the petition on July 7, 2016, in a decision that I discussed here.

LaBella then filed a writ-appeal petition at CAAF. However, as discussed here, that petition looked to be untimely. It was filed on September 7 (62 days after July 7), while the deadline to file a writ-appeal petition at CAAF is 20 days from the date of service of the CCA’s decision. See C.A.A.F. R. 19(e) (2016).

Now we know that it was untimely.

Two days ago, CAAF dismissed the petition (in response to a Government motion):

No. 16-0728/AF. Sebastian P. LaBella, Appellant v. United States, and United States Air Force Court of Appeals, Appellees.  CCA 37679. On consideration of Appellee’s motion to dismiss writ-appeal petition as untimely filed under Rule 19(e), and Appellant’s motion for leave to withdraw the writ-appeal petition, it is ordered that Appellee’s motion to dismiss the writ-appeal petition is hereby granted, and Appellant’s motion for leave to withdraw the writ-appeal petition is hereby denied as moot.

Readers may recall that the last military case decided by the Supreme Court – United States v. Denedo, 556 U.S. 904 (2009) – ended when Denedo’s counsel missed this same 20-day deadline to file a writ-appeal (discussed here).

In the Air Force case of United States v. LaBella, 75 M.J. 52 (C.A.A.F. Dec. 11, 2015) (CAAFlog case page), LaBella’s detailed military defense counsel failed to petition CAAF within the 60-day jurisdictional time limit for doing so. The Air Force CCA subsequently granted a motion to reconsider, ostensibly resetting the 60-day clock. CAAF, however, unanimously held that the CCA lacked jurisdiction to grant the motion to reconsider after the 60-day CAAF deadline expired. Accordingly, because the 60-day time limit had expired, CAAF lacked jurisdiction to review the case.

LaBella subsequently sought extraordinary relief from the Air Force CCA, asserting ineffective assistance of counsel (for his detailed military defense counsel’s failure to file a timely petition at CAAF). The CCA denied the petition on July 7, 2016, in a decision that I discussed here.

CAAF’s daily journal for yesterday, September 7, 2016, has the following entry:

No. 16-0728/AF. Sebastian P. LaBella, Appellant v. United States, and United States Air Force Court of Criminal Appeals, Appellees. CCA 37679. Notice is hereby given that a writ-appeal petition for review of the decision of the United States Air Force Court of Criminal Appeals on application for extraordinary relief in the nature of a writ of error coram nobis was filed under Rule 27(b) on this date.

The deadline to file a writ-appeal petition at CAAF is 20 days from the date of service of the CCA’s decision on the writ petition. C.A.A.F. R. 19(e) (2016).

September 7 is the 62nd day after July 7.

In United States v. Caldwell, 75 M.J. 276 (C.A.A.F. May 16, 2016) (CAAFlog case page), a unanimous CAAF found that there is no scenario where an accused could innocently engage in the kind of conduct prohibited by the general intent military offense of maltreatment, rejecting the appellant’s claim that the military judge’s instructions were inadequate based on the Supreme Court’s decision in Elonis v. United States, 575 U..S. __, 135 S. Ct. 2001 (2015).

The appellant has now sought review by SCOTUS. The case is Caldwell v. United States, No. 16-209. The petition for certiorari is available here. The question presented is:

Whether Elonis and its reasoning apply to all similar federal criminal statutes or whether, as the court of appeals here reasoned, Carter v. United States, 530 U.S. 255 (2000), creates a class of “general intent” crimes that fall outside the reach of Elonis and for which proof of negligence is sufficient to convict.

CAAF decided the Marine Corps case of United States v. Sterling, 75 M.J. 407, Nos. 15-0510/MC & 16-0223/MC (CAAFlog case page) (link to slip op.), on Wednesday, August 10, 2016. The court holds that Sterling’s disobedience of an order could qualify for protection under the Religious Freedom Restoration Act (RFRA), however the majority finds that Sterling failed to establish that the order she violated substantially burdened her exercise of religion. Accordingly, CAAF affirms the findings and sentence.

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

Contrary to her pleas of not guilty, Lance Corporal (E-3) Sterling was convicted by a special court-martial, composed of members with enlisted representation, of failure to go to her appointed place of duty, disrespect towards a superior commissioned officer, and four specifications of disobeying the lawful order of a noncommissioned officer, in violation of Article 86, 89, and 91. She was sentenced to reduction to E-1 and a bad-conduct discharge.

Sterling’s court-martial arose out of her contentious relationship with her superiors. She elected to represent herself at trial (though she had the assistance of detailed military defense counsel). She was convicted of offenses for her refusal to wear the service C uniform, her refusal to perform duty handing out vehicle passes, and her refusal to obey an order to remove three signs that she posted in her office workspace. The signs stated “no weapon formed against me shall prosper” and Sterling asserted at trial and on appeal that the signs represented the Christian trinity and were posted as an expression of her religious belief.

The Navy-Marine Corps CCA affirmed the findings and sentence after concluding that Sterling’s conduct was not entitled to protection under RFRA. CAAF then granted review of two issues specified by the court, and the Judge Advocate General of the Navy certified two additional issues:

Specified Issues:
I. Did Appellant establish that her conduct in displaying signs referencing biblical passages in her shared workplace constituted an exercise of religion within the meaning of the Religious Freedom Restoration Act, 42 U.S.C. 2000bb-1 (2012), as amended? If so, did the actions of her superior noncommissioned officer in ordering her to take the signs down, and in removing them when she did not, constitute a substantial burden on appellant’s exercise of religion within the meaning of the Act? If so, were these actions in furtherance of a compelling government interest and the least restrictive means of furthering that interest?

II. Did Appellant’s superior noncommissioned officer have a valid military purpose in ordering appellant to remove signs referencing biblical passages from her shared workplace?

Certified Issues:
I. Did Appellant’s failure to follow an instruction on the accommodation of religious practices impact her claim for relief under the Religious Freedom Restoration Act?

II. Did Appellant waive or forfeit her Religious Freedom Restoration Act claim of error by failing to raise it at trial?

In yesterday’s decision CAAF concludes: that the order was lawful (answering the second granted issue in the affirmative); that Sterling’s failure to follow the procedures to seek an accommodation is relevant (answering the first certified issue in the affirmative); that Sterling did not waive or forfeit her claim under RFRA (answering the second certified issue in the negative), and; that Sterling failed to establish the facts necessary to prevail on a RFRA claim (answering the first granted issue in the negative).

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Today CAAF decided the final argued case of the September 2015 Term: United States v. Sterling, No.s 15-0510/MC & 16-0223/MC (CAAFlog case page). The opinion is available here. Also available here (CAAFlog link).

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

Writing for the court, Judge Ryan holds that:

We hold that the orders to remove the signs were lawful. Appellant’s claimed defense to violating those orders under RFRA was preserved, but Appellant has failed to establish a prima facie RFRA case. Moreover, we hold that her failure to either inform her command that the posting of the signs was religiously motivated or seek an accommodation are both relevant to Appellant’s failure to establish that the orders to remove the signs constituted a substantial burden on her exercise of religion. Consequently, while the NMCCA’s RFRA analysis was flawed, we affirm the decision on other grounds.

Slip op. at 4.

Judge Ohlson’s dissent begins:

In my view, the Religious Freedom Restoration Act (RFRA), 42 U.S.C. §§ 2000bb–2000bb-4 (2012), provides the men and women of our nation’s armed forces with the presumptive right to fully, openly, and spontaneously engage in religious exercise. This right extends to sincere religious conduct that is not specifically required by, or deemed by judges to be important to, the tenets of a servicemember’s faith. Further, servicemembers who are court-martialed for sincere religious conduct may invoke the protections afforded by RFRA even if they did not obtain the permission of the Government before engaging in that conduct, and even if they did not contemporaneously inform their chain-of-command that their actions were religious in nature.

I conclude that the majority’s disposition of the instant case is not consistent with these rights under RFRA. Moreover, I conclude that the majority’s analysis of the underlying legal issue raises the prospect that other servicemembers in the future may be subjected to conviction at court-martial for merely engaging in religious exercise that is entitled to protection under the statute. Therefore, I must respectfully dissent.

Diss.  op. at 1.

Further analysis to follow.

CAAF decided the certified Marine Corps case of Howell v. United States, 75 M.J. 386, Nos. 16-0289/MC & 16-0367/MC (CAAFlog case page) (link to slip op.) on Tuesday, July 19, 2016. Unanimously affirming that a CCA has jurisdiction to consider a Government petition for extraordinary relief under the All Writs Act, CAAF splits 3-2 to find that the military judge erred in finding that the Government violated the Article 13 prohibition against pretrial punishment in connection with a pay dispute. CAAF remands the case back to the NMCCA for further consideration of the Government’s request for a writ of prohibition to prevent application of the military judge’s award of 343 days of confinement credit.

Judge Sparks writes for the court (in his first opinion), joined by Senior Judge Lamberth of the United States District Court for the District of Columbia (sitting by designation). Judge Stucky writes separately, concurring in the result. Judge Ohlson dissents from the result, joined by Chief Judge Erdmann, both of whom would find that Article 13 was violated.

CAAF reviewed four issues certified by the Judge Advocate General of the Navy; one certified at the request of the Defense and three certified at the request of the Government:

Defense issue:
I. Whether the Government may invoke Article 66, UCMJ, as the jurisdictional basis for an extraordinary writ pursuant to the All Writs Act when the issue is not included as a basis for Government appeal under Article 62, UCMJ?

Government issues:
II. Whether the military judge, in finding an Article 13, UCMJ, violation, exceeded his authority by rejecting applicable holdings of the U.S. Court of Appeals for the Federal Circuit and the Court of Federal Claims, in order to conclude that appellee was entitled to pay at the A-6 rate pending his rehearing?

III. Whether the lower court erred by concluding that the setting aside of appellee’s findings and sentence rendered his reduction to pay grade E-1 prospectively unexecuted pending rehearing?

IV. If a member’s original sentence includes an executed reduction to pay grade E-1 and the sentence is subsequently set aside, does the action of paying that member at the E-1 rate pending rehearing constitute illegal pretrial punishment in the absence of any punitive intent?

This case was included in our #4 Military Justice Story of 2014, as the appearance of unlawful command influence led to the reversal of Staff Sergeant Howell’s conviction of sexual assault. A rehearing was authorized. Howell was restored to his rank of E-6 and to full duty pending that rehearing, however he was only paid at the E-1 rate (based on the Government’s interpretation of the applicable military pay statutes and Article 75(a) which addresses restoration after a court-martial is set aside).

Howell complained and the military judge agreed that he was entitled to be paid as an E-6, finding that the Government’s actions constituted illegal pretrial punishment in violation of Article 13. As a remedy the military judge ordered that Howell receive credit against any sentence to confinement in the form of one day of confinement credit for each day of pay at the E-1 rate.

The rehearing proceeded and Howell was convicted and sentenced to confinement for nine years, reduction to E-1, total forfeitures, and a dishonorable discharge. The military judge’s ruling resulted in 343 days of confinement credit due to Howell. But then, prior to the convening authority taking action, the Government filed a petition for a writ of prohibition at the Navy-Marine Corps CCA seeking to reverse the military judge’s award of confinement credit. The NMCCA stayed the post trial proceedings and (in an opinion discussed here) granted the Government petition in part, reducing the award of credit to 308 days. The Judge Advocate General of the Navy then certified the case to CAAF.

With yesterday’s opinion CAAF overwhelmingly affirms the Government’s ability to seek such relief, and narrowly interprets Article 13 to require evidence of actual intent to punish (and not merely punitive effect).

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CAAF decided the capital Air Force case of United States v. Witt, 75 M.J. 380, No. 15-0260/AF (CAAFlog case page) (link to slip op.), on Tuesday, July 19, 2016. In a short opinion the court sets aside the second decision of the Air Force CCA (that affirmed the sentence of death) and reinstates the first decision (that reversed the sentence of death), authorizing a sentence rehearing.

Judge Stucky writes for a unanimous court.

In 2005 a general court-martial composed of twelve officer members convicted Senior Airman Witt of the premeditated murder of a fellow Airman and his wife, and also of the attempted murder of another Airman, and sentenced Witt to death. About 18 months later the prosecution team published a detailed first-person account of the trial proceedings in the Air Force JAG Corps magazine, The Reporter (available here).

In 2013 Witt’s death sentence was set aside by the Air Force Court of Criminal Appeals sitting en banc (discussed here). The CCA unanimously concluded that Witt’s trial defense team was deficient in failing to investigate three areas relevant for the sentencing portion of the court-martial. But the court split 3-2 on the question of prejudice, narrowly finding that had Witt’s counsel not been deficient then the members might not have adjudged the death sentence. The CCA remanded for a sentence rehearing.

But then the Government sought reconsideration by the CCA, and in a dramatic reversal the court reinstated Witt’s death sentence in a second en banc decision issued in 2014 (discussed here). As it had in the first decision, the CCA again found that Witt’s trial defense counsel were deficient. But on the crucial question of prejudice the court split 4-2 to find that Witt was not prejudiced by his counsel’s errors, and accordingly it approved the adjudged sentence of death. This reversal of fortune was our #7 Military Justice Story of 2014.

Because Witt had an approved sentence of death, CAAF’s review was mandatory (see Article 67(a)(1)), and the court specified two issues that questioned whether the AFCCA could reinstate the capital sentence in the way that it did:

I. Whether a court of criminal appeals sitting en banc can reconsider a previous en banc decision of that court pursuant to statutory authority, applicable precedent, or inherent authority?

II. Whether a decision of a court of criminal appeals sitting en banc can be reconsidered en banc when the composition of the en banc court has changed?

In today’s decision CAAF holds that a CCA does have the authority to reconsider en banc a prior en banc decision, however it finds that three of the AFCCA judges who participated in the reconsideration were disqualified from doing so.

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In the Air Force case of United States v. LaBella, 75 M.J. 52 (C.A.A.F. Dec. 11, 2015) (CAAFlog case page), a unanimous CAAF held that the Air Force Court of Criminal Appeals lacked jurisdiction to grant the appellant’s petition for reconsideration that was filed after the time for filing a petition for review by CAAF had expired.

The petition for reconsideration was filed after the appellant’s detailed Air Force appellate defense counsel failed to seek CAAF review before expiration of the 60-day deadline, and also failed to seek reconsideration from the CCA within the 30 day time period for seeking reconsideration (which would have reset the 60 day clock to petition CAAF). Instead, after a change in counsel, an out-of-time petition for reconsideration was submitted to the AFCCA in December 2014. The CCA allowed the petition but affirmed its prior decision that affirmed the findings and sentence. The appellant then petitioned CAAF, leading to the court’s December decision finding that the CCA did not have jurisdiction to allow the petition.

After CAAF’s decision, the appellant petitioned the AFCCA for a writ of error coram nobis asserting that his appellate counsel provided ineffective assistance of counsel by failing to timely petition CAAF. In an order issued last week and available here, the AFCCA denied the petition:

As Petitioner’s alleged deficient performance was the failure of counsel to file a timely appeal to the CAAF, to demonstrate prejudice, Petitioner must be able to demonstrate a reasonable probability that our superior court would have provided relief if the petition was submitted within the statutory window. For the reasons set forth in our prior opinion, we remain unpersuaded that Appellant is entitled to relief. See Labella, ACM 37679 (rem); see also United States v. Piolunek, 74 M.J. 107 (C.A.A.F. 2015) (affirming a general verdict of possessing and receipting child pornography when only 19 of the 22 images admitted by the government as evidence as to this offense constituted child pornography).

Petitioner, in his writ to this court, has not identified, and we have not found, any additional basis for relief as to the issues that he desired our superior court consider on further appeal.

Slip op. at 5. A footnote adds:

In so concluding, however, we understand that Petitioner may now appeal this writ to the United States Court of Appeals for the Armed Forces (CAAF). Compare Denedo, 556 U.S. 904, 915 (2009) (“Because the [service court] had jurisdiction over respondent’s petition for coram nobis, the CAAF had jurisdiction to entertain respondent’s appeal from the [service court]’s judgment.”) with Rittenhouse v. United States, 69 M.J. 174 (C.A.A.F. 2010) (declining a writ of error coram nobis submitted directly to the CAAF).

The deadline to file such an appeal is 20 days from the date of service of the CCA’s decision on the writ petition. C.A.A.F. R. 19(e) (2016).

Readers may recall that the last military case decided by the Supreme Court – United States v. Denedo, 556 U.S. 904 (2009) – ended when Denedo’s counsel missed this same 20-day deadline to file a writ-appeal (discussed here).

CAAF decided the Air Force case of United States v. Harrell, 75 M.J. 359, No. 16-007/AF (CAAFlog case page) (link to slip op.), on Tuesday, June 28, 2016. The court finds no Fourth Amendment violation in the use of a canine leading to the discovery of marijuana and glass smoking pipes in the appellant’s vehicle, affirming the decision of the Air Force CCA and the appellant’s conditional pleas of guilty.

Chief Judge Erdmann writes for a unanimous court. Senior Judge Cox writes separately, concurring.

CAAF specified a single issue for review:

Whether evidence obtained from a police search of appellant’s vehicle on or about August 4, 2010, was obtained in violation of the Fourth Amendment and should have been suppressed.

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