CAAFlog » September 2015 Term » United States v. Caldwell

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 Army case of United States v. Caldwell, 75 M.J. 276, No. 16-0091/AR (CAAFlog case page) (link to slip op.), on Monday, May 16, 2016. Finding that there is no scenario where an accused could innocently engage in the kind of conduct prohibited by the military offense of maltreatment, CAAF concludes that the military judge’s instructions were not erroneous in this case but also provides specific guidance for instructions in future cases. The court affirms the appellant’s convictions and the decision of the Army CCA.

Judge Ohlson writes for a unanimous court.

CAAF granted review of one issue in this case (and that issue was personally asserted by the appellant (discussed here)):

Whether the military judge committed plain error when he instructed the panel using a negligence standard for maltreatment of a subordinate in violation of Article 93.

A general court-martial composed of members with enlisted representation convicted Sergeant First Class Caldwell, contrary to his pleas of not guilty, of maltreatment in violation of Article 93 and abusive sexual contact in violation of Article 120. The convictions were related to Caldwell’s unwanted sexual advances towards, and inappropriate workplace touchings of, a subordinate. Caldwell was sentenced to reduction to E-1 and a bad-conduct discharge.

Article 93 prohibits cruelty toward, or oppression or maltreatment of a subordinate. To win a conviction for maltreatment, however, the Government need not prove that the accused actually intended cruelty, oppression, or maltreatment, or even that there was actual harm to the alleged victim. Rather, “the essence of the offense is abuse of authority,” United States v. Carson, 57 M.J. 410, 415 (C.A.A.F. 2002), and the accused’s conduct is “measured by an objective standard,” MCM pt. IV, para. 17.c.(2). But in its recent decision in Elonis v. United States, 575 U..S. __, 135 S. Ct. 2001 (2015), the Supreme Court held that “federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state.” 135 S. Ct. at 2012. Further, the Court held that “the presumption in favor of a scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent conduct.” 135 S.Ct. 2011. And so the issue in Caldwell was whether a post hoc objective determination that certain conduct constitutes maltreatment is adequate in the absence of some other degree of culpability in the mind of the accused.

In Monday’s decision, Judge Ohlson explains that such an objective standard is adequate because “there is no scenario where a superior who engages in the type of conduct prohibited under Article 93, UCMJ, can be said to have engaged in innocent conduct.” Slip op. at 7.

Read more »

In United States v. Caldwell, No. 16-0091/AR (CAAFlog case page), CAAF is considering whether the military judge committed plain error when he instructed the panel using a negligence standard for maltreatment of a subordinate in violation of Article 93. The case is one of a handful this term that rely on the Supreme Court’s recent decision in Elonis v. United States, 135 S. Ct. 2001 (2015), to argue that the offense does not require a sufficiently culpable mens rea (mental state).

CAAF already decided two such cases: United States v. Gifford, 75 M.J. 140 (C.A.A.F. Mar. 8, 2016) (CAAFlog case page) (applying Elonis to conclude that the appellant must have acted with at least reckless disregard for the true age of the minors to whom he provided alcohol in order to be convicted of violating an order prohibiting such action), and United States v. Rapert, __ M.J. __ (C.A.A.F. Mar. 18, 2016) (CAAFlog case page) (holding that the element of wrongfulness in the Article 134 offense of communicating a threat, as specified by the President, requires adequate proof of an accused’s mens rea). In addition to Caldwell, I’m tracking one other such case (Goffe).

Yesterday the court granted review in a Caldwell trailer:

No. 16-0357/AR. U.S. v. Derick D. Granderson. CCA 20140178. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ERRONEOUSLY USED A NEGLIGENCE STANDARD TO FIND APPELLANT GUILTY OF MALTREATMENT UNDER ARTICLE 93, UCMJ.

No briefs will be filed under Rule 25.

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

United States v. Caldwell, No. 16-0091/AR (CAAFlog case page): Oral argument audio

United States v. Williams, No. 16-0053/AF (CAAFlog case page): Oral argument audio

This week at SCOTUS: The Court further extended the time for the Solicitor General to provide the requested response in Sullivan to March 30. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking three cases:

This week at CAAF: CAAF will hear oral argument in four cases this week:

Tuesday, February 23, 2016, at 9:30 a.m.:

United States v. Gay, Nos. 15-0742/AF & 15-0750/AF (CAAFlog case page)

Granted Issue: Whether the Air Force Court of Criminal Appeals erred by failing to remand appellant’s case for a hearing pursuant to United States v. Dubay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), to determine the facts surrounding appellant’s post-trial solitary confinement. See United States v. Ginn, 47 M.J. 236 (1997).

Certified Issue: Whether the Air Force Court of Criminal Appeals (AFCCA) abused its discretion and committed legal error by reaching its decision that Article 66, UCMJ, grants it the authority to grant sentence appropriateness relief for post-trial confinement conditions even though there was no violation of the Eighth Amendment or Article 55, UCMJ, in direct contravention of this court’s binding precedent.

Case Links:
AFCCA opinion
Blog post: The AFCCA finds that using solitary confinement to avoid violating Article 12 isn’t cruel and unusual, but deserves relief
Blog post: The Air Force JAG certifies two cases to CAAF
Blog post: CAAF specifies an additional issue in Gay
Appellant’s brief (granted issue)
Appellee’s (Government) brief (granted issue)
Cross-appellant’s (Government) brief (certified issue)
Cross-appellee’s brief (certified issue)

Followed by:

United States v. Atchak, No. 16-0054/AF (CAAFlog case page)

Issue: Whether the Air Force Court of Criminal Appeals erred in setting aside and dismissing the specifications of aggravated assault without authorizing the convening authority to order a rehearing for the lesser included offenses of assault consummated by a battery.

Case Links:
AFCCA opinion
Blog post: Two Air Force certifications, and a grant in a Marine Corps case
Appellant’s (Government) brief
Appellee’s brief

Wednesday, February 24, 2016, at 9:30 a.m.:

United States v. Caldwell, No. 16-0091/AR (CAAFlog case page)

Issue: Whether the military judge committed plain error when he instructed the panel using a negligence standard for maltreatment of a subordinate in violation of Article 93.

Case Links:
ACCA opinion (summary disposition)
Blog post: CAAF grants review of a Grostefon issue
Appellant’s brief
Appellee’s (Government) brief

Followed by:

United States v. Williams, No. 16-0053/AF (CAAFlog case page)

Issue (specified by the court): Whether the United States may file successive motions for reconsideration of a decision of the Court of Criminal Appeals, and thereby effectively extend the 60-day filing deadline for a certificate of review of such decision. See CAAF Rules of Practice and Procedure 19(b)(3); 22(b)(3); and 34(a).

Case Links:
AFCCA opinion
Blog post: Two Air Force certifications, and a grant in a Marine Corps case
Blog post: Three new CAAF grants
• Appellant’s (Government) brief
Appellee’s brief

This week at the ACCA: The Army CCA’s website is not accessible to the public (discussed here). However, I can report that the CCA will hear oral argument in two cases this week:

Wednesday, February 24, 2016 at 10 a.m.: United States v. Allen, No. 20130521

Issues:
I. [Whether t]he findings that the appellant committed sexual assault are factually and legally insufficient.
II. [Whether t]he military judge erred by not replaying testimony after a panel member requested a transcript of testimony and telling the panel members that replaying testimony would cause a delay.

Thursday, February 25, 2016 at 10 a.m.: United States v. Mitchell, No. 20150776

Issue: Whether the military judge erred in suppressing Appellee’s cell phone and the evidence from it by holding that unlocking his cell phone constituted a testimonial act and law enforcement re-initiated communication with Appellee in violation of the Edwards rule.

Note: This is a government appeal under Article 62.

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 two cases on Wednesday, February 24, 2016:

At 10 a.m.: United States v. Hackler (before the CCA en banc)

Case summary: A panel of members with enlisted representation sitting as a general court-martial convicted Appellant contrary to his pleas, of one specification of assault consummated by battery and one specification of adultery, in violation of Articles 128 and 134, UCMJ, 10 USC §§ 928 and 934 (2012). The members sentenced Appellant to reduction to pay grade E-1, ninety days hard labor without confinement, and a bad-conduct discharge. The convening authority approved the sentence as adjudged, and, except for the bad-conduct discharge, ordered the sentence executed.

Issue: Equal protection requires the law to treat similarly-situated individuals alike. The offense of adultery treats heterosexual and homosexual servicemembers disparately in two ways: 1) adultery applies only to heterosexuals by requiring sexual intercourse for criminal liability and punishment to attach; 2) adultery denies homosexuals the same marriage-fostering enforcement of fidelity afforded heterosexual servicemembers. The UCMJ has no equivalent offense for same-sex sexual relations. Does equal protection require setting aside appellant’s conviction for adultery?

At 1 p.m.: United States v. Chikaka

Case summary: A panel of members with enlisted representation sitting as a general court-martial convicted Appellant contrary to his pleas, of attempted abusive sexual contact, orders violations, wrongful sexual contact, abusive sexual contact, obstructing justice, indecent language, and adultery in violation of Articles 80, 92, 120, and 134, UCMJ, 10 U.S.C. §§ 880, 892, 920, and 934 (2012). The members sentenced the appellant to a reduction to pay grade E-1, twelve years’ confinement, forfeiture of all pay and allowances, and a dishonorable discharge. The Convening Authority approved the sentence as adjudged and, except for the punitive discharge, order it executed.

Issues:
I. Only relevant evidence is admissible. Over defense objection, the military judge admitted on the merits “operation restore vigilance,” a campaign plan to “fully operationalize the commandant’s guidance” from the heritage tour; a photo of the commandant posing with an accuser’s grandfather as sentencing evidence; and then allowed appellant’s commanding officer to testify that it was important for the members to adjudge a harsh sentence in this case. Did the military judge abuse his discretion?
II. Disjunctive pleading is improper because it creates ambiguity and may fail to inform an accused of what he must defend against. Here, the Government charged 18 specifications with alternate theories of liability, all pleaded disjunctively to create 65 possible theories of liability. Did the members’ general verdict of guilt without exceptions or substitutions create an ambiguous verdict that prevents this court from reviewing this case for factual sufficiency?

CAAF’s daily journal has this entry from yesterday:

No. 16-0091/AR. U.S. v. Djoulou K. Caldwell. CCA 20140425.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue personally asserted by Appellant:

WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR WHEN HE INSTRUCTED THE PANEL USING A NEGLIGENCE STANDARD FOR MALTREATMENT OF A SUBORDINATE IN VIOLATION OF ARTICLE 93.

Briefs will be filed under Rule 25.

(emphasis added). The right of an appellant to personally assert an error was solidified in United States v. Grostefon, 12 M.J. 431, 436-437 (C.M.A. 1982), in which the court held that a detailed appellate defense counsel must inform the military appellate courts of any issues raised by an appellant, even if the counsel believes they are frivolous:

Henceforth, we will require that when the accused specifies error in his request for appellate representation or in some other form, the appellate defense counsel will, at a minimum, invite the attention of the Court of Military Review to those issues and, in its decision, the Court of Military Review will, at a minimum, acknowledge that it has considered those issues enumerated by the accused and its disposition of them. If the Court of Military Review decides that the issues have no merit, appellate defense counsel will so notify the accused and make his recommendations as to whether the accused should petition for further review to this Court and of his recommendations as to submission of the same issues. Unless the accused consents to withdrawal or abandonment of the issues before this Court, appellate defense counsel will, in the petition for review, identify the issues. If the accused wishes to withdraw the issues, or change or modify them, appellate defense counsel will so state in the petition. Of course, this in no way prevents or discourages appellate defense counsel from submitting briefs and arguments on those issues which, in his professional judgment, have arguable merit. However, in no case will the issues submitted by the accused be ignored without evidence of the accused’s concurrence in that decision.

I’m not sure when CAAF last considered an issue raised personally by an appellant at CAAF, however the court has recently considered issues raised personally by an appellant at a CCA, such as in  United States v. Rose, 71 M.J. 138 (C.A.A.F. May 24, 2012) (CAAFlog case page), and United States v. King, 71 M.J. 50 (C.A.A.F. Mar. 13, 2012) (CAAFlog case page).

Notably, in Caldwell, there doesn’t appear to be a decision on the Army CCA’s website (that implies that it was summarily affirmed).