CAAFlog » September 2015 Term » United States v. LaBella

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 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 issued its first decision of the term, in the Air Force case of United States v. LaBella, 75 M.J. 52, No.15-0413/AF (CAAFlog case page) (link to slip op.), on Friday, December 11, 2015. In a short opinion the court holds 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.

Judge Stucky writes for a unanimous court.

CAAF reviewed the following specified issue in this case:

Whether appellant’s petition for grant of review should be dismissed for lack of jurisdiction when the court of criminal appeals entertained an untimely filed motion for reconsideration for “good cause,” but denied the motion on other grounds, and appellant filed a petition for grant of review with this court under Article 67, UCMJ, more than 60 days after the original decision of the court of criminal appeals, but within 60 days of the final decision on the motion for reconsideration. See, United States v. Rodriguez, 67 M.J. 110 (C.A.A.F. 2009); United States v. Smith, 68 M.J. 445 (C.A.A.F. 2010).

In 2010, the appellant was tried by a general court-martial composed of officer members. He was convicted, contrary to his pleas of not guilty, of one specification of wrongful and knowing possession of visual depictions of minors engaging in sexually explicit conduct and one specification of wrongful and knowing possession of “what appear to be” minors engaging in sexually explicit conduct, in violation of Article 134. The members sentenced him confinement for six months, forfeiture $447.00 pay per month for 3 months, reduction to E-1, and a dishonorable discharge. The convening authority reduced the discharge to a bad-conduct discharge.

The Air Force Court of Criminal Appeals conducted two reviews in the case. In the first review, completed in 2013, the AFCCA rejected the appellant’s assertions that the military judge improperly admitted evidence of images that did not constitute child pornography, and the CCA affirmed the findings and sentence. CAAF then granted review and summarily remanded the case (discussed here) for consideration in light of United States v. Barberi, 71 M.J. 127 (C.A.A.F. May 15, 2012) (CAAFlog case page). The AFCCA then completed its second review of the case in July 2014, applying its own decision in United States v. Piolunek, 72 M.J. 830, (A.F. Ct. Crim. App. Oct 21, 2013), aff’dUnited States v. Piolunek, 74 M.J. 107 (C.A.A.F. Mar. 26, 2015) (CAAFlog case page), to conclude that any error was harmless beyond a reasonable doubt.

However, after the AFCCA issued its July 2014 decision, the appellant’s detailed military appellate defense counsel did not appeal that decision to CAAF within the 60 day time period for doing so, nor did his counsel 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 some apparent changes in counsel, an out-of-time petition for reconsideration was submitted to the AFCCA in December 2014.

The CCA granted that petition and reconsidered the case, however it denied the appellant any relief. The appellant then petitioned CAAF for review, but the Government opposed the petition on jurisdictional grounds. CAAF then specified the jurisdictional question for review.

In today’s decision, Judge Stucky concludes that the AFCCA did not have jurisdiction to grant the out-of-time petition for reconsideration. It is the second time in four months that Judge Stucky has authored a decision of the court that finds that the AFCCA acted outside its jurisdiction (the other being United States v. Arness, 74 M.J. 441 (C.A.A.F. Aug. 19, 2015) (CAAFlog case page)).

Read more »

Audio of this morning’s oral argument in United States v. LaBella, No.15-0413/AF (CAAFlog case page) is available at the following link: Oral argument audio.

Tomorrow, CAAF will hear oral argument in the Air Force case of United States v. LaBella, No.15-0413/AF (CAAFlog case page). The court specified an issue related to its jurisdiction over the appellant’s case. I previewed the argument in this post.

The major theme in LaBella is the ability of a court of criminal appeals to extend CAAF’s jurisdiction over a case by allowing a tardy motion for reconsideration. Under current caselaw (that the appellant in LaBella seeks to reverse), the 60-day time period for filing a petition for review at CAAF is jurisdictional, prohibiting late petitions. Caselaw also provides that the 60-day clock doesn’t start until a CCA addresses any motions for reconsideration. But in LaBella, the motion for reconsideration was months late to the CCA. Nevertheless, the CCA allowed the motion, permitting the appellant in LaBella to move for reconsideration and (perhaps) extending the deadline to petition CAAF to 60-days after the CCA resolved the motion.

But the minor theme in LaBella is why the appellant filed a tardy motion for reconsideration. It was, in reality, the Government’s fault. The appellant’s detailed military appellate defense counsel – Government attorneys provided to the appellant at no cost and without regard to his ability to hire his own counsel, in accordance with Article 70, UCMJ – failed to petition CAAF as the appellant desired. It’s unclear from the briefs how such a screw-up occurred (particularly since the AFCCA’s two opinions in the case identify a total of six field grade Air Force attorneys as appellate counsel for the appellant), but it happened. And the Government seemingly does not dispute that it happened or that the appellant himself is entirely blameless.

With this background, I received a copy of an amicus brief filed by the Air Force Appellate Government [bad typo!] Defense Division in support of the appellant’s argument to reverse CAAF’s caselaw that the 60-day time limit is jurisdictional. The brief is not (yet) on CAAF’s website, but it’s available here. Additionally, the Division’s motion to file the brief is available here, and it states the Division’s interest as including the fact that:

A client who waits more than 60 days has passed from notice or constructive notice of a Court of Criminal Appeals (CCA) to alert his or her Division lawyer of their desire to petition this Court currently has almost no recourse.

Mot. for Leave to File Amicus Br. at 1-2. The Division’s position invokes a hypothetical appellant who is not blameless – not exactly the facts of LaBella.

Surprisingly, the Government opposed the Division’s motion to file the brief. The Government’s opposition is available here, and its opening pages assert:

Appellant presented facts to both the Air Force Court of Criminal Appeals, which accepted his factual averment, and this Court demonstrating that his former counsel failed to file a timely petition for review with this Court contrary to Appellant’s request. The United States has not presented and does not possess evidence that challenges this factual predicate. Therefore, the matter presently before this Court does not involve a justiciable case or controversy between the adverse parties involving a “tardy client,” and Amicus’ proposed brief is irrelevant to resolution of the specified issue. If Amicus desires to make this argument, it should do so in a case where those facts are actually present. As such, the Court should deny the motion for leave to file the irrelevant amicus curiae brief.

Gov’t Ans. to Mot. for Leave to File Amicus Br. at 3. The Government’s response functionally proves that the appellant is blameless, and that it is his Government-furnished attorneys who deserve the blame for the jurisdictional conundrum facing CAAF.

CAAF permitted the motion to file the amicus brief over the Government’s opposition.

CAAF will hear oral argument in the Air Force case of United States v. LaBella, No.15-0413/AF (CAAFlog case page), on Wednesday, October 28, 2015, at 9:30 a.m. The court will consider a jurisdictional question that it specified after the Government moved to dismiss the appellant’s petition for review on jurisdictional grounds:

Whether appellant’s petition for grant of review should be dismissed for lack of jurisdiction when the court of criminal appeals entertained an untimely filed motion for reconsideration for “good cause,” but denied the motion on other grounds, and appellant filed a petition for grant of review with this court under Article 67, UCMJ, more than 60 days after the original decision of the court of criminal appeals, but within 60 days of the final decision on the motion for reconsideration. See, United States v. Rodriguez, 67 M.J. 110 (C.A.A.F. 2009); United States v. Smith, 68 M.J. 445 (C.A.A.F. 2010).

In 2010, the appellant was tried by a general court-martial composed of officer members. He was convicted, contrary to his pleas of not guilty, of one specification of wrongful and knowing possession of visual depictions of minors engaging in sexually explicit conduct and one specification of wrongful and knowing possession of “what appear to be” minors engaging in sexually explicit conduct, in violation of Article 134. The members sentenced him confinement for six months, forfeiture $447.00 pay per month for 3 months, reduction to E-1, and a dishonorable discharge. The convening authority reduced the discharge to a bad-conduct discharge.

The Air Force Court of Criminal Appeals conducted two reviews in the case. In the first review, completed in 2013, the AFCCA rejected the appellant’s assertions that the military judge improperly admitted evidence of images that did not constitute child pornography, and the CCA affirmed the findings and sentence. CAAF then granted review and summarily remanded the case (discussed here) for consideration in light of United States v. Barberi, 71 M.J. 127 (C.A.A.F. May 15, 2012) (CAAFlog case page). The AFCCA then completed its second review of the case in July 2014, applying its own decision in United States v. Piolunek, 72 M.J. 830, (A.F. Ct. Crim. App. Oct 21, 2013), aff’dUnited States v. Piolunek, 74 M.J. 107 (C.A.A.F. Mar. 26, 2015) (CAAFlog case page), to conclude that any error was harmless beyond a reasonable doubt.

However, after the AFCCA issued its July 2014 decision, the appellant’s detailed military appellate defense counsel did not appeal that decision to CAAF within the 60 day time period for doing so, nor did his counsel 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 some apparent changes in counsel, an out-of-time petition for reconsideration was submitted to the AFCCA in December 2014. A justification for the lateness of that petition was the appellant’s assertion that his detailed appellate defense counsel failed to petition CAAF “contrary to [his] clearly expressed wishes.” App. Br. at 5.

Servicemembers are assigned (detailed) defense counsel for trial and for appeal at no cost to them and without regard to indigence. See Articles 27 and 70, UCMJ. A servicemember also has the right to hire civilian defense counsel at his own expense. However, the appellant in Labella did not hire civilian counsel. Rather, he was represented by numerous Air Force attorneys. Specifically, the AFCCA’s 2013 decision in the appellant’s case states, in the caption:

Appellate Counsel for the Appellant: Colonel Eric N. Eklund; Lieutenant Colonel Gail E. Crawford; Major Michael S. Kerr; Major Daniel E. Schoeni; and Major Ja Rai A. Williams.

United States v. Labella, No. 37679, slip op. at 1 (A.F. Ct. Crim. App. Feb. 15, 2013) (link to slip op.). Further, the AFCCA’s 2014 decision states, in the caption:

Appellate Counsel for the Appellant: Colonel Eric N. Eklund; Lieutenant Colonel Gail E. Crawford; Major Michael S. Kerr; Major Zaven T. Saroyan; Major Daniel E. Schoeni; and Major Ja Rai A. Williams.

United States v. Labella, No. 37679 (rem), slip op. at 1 (A.F. Ct. Crim. App. Jul. 2, 2014) (link to slip op.). However, the appellant’s brief asserts that:

On 17 November 2014, Maj Ja Rai A. Williams was notified that the Judge Advocate General of the U.S. Air Force detailed her as appellate defense counsel for Appellant pursuant to Article 70(a) and (c), UCMJ, 10 U.S.C. § 870 (2015), due to a conflict of interest in the U.S. Air Force Appellate Defense Division. (J.A. at 24.) Maj Williams was previously assigned to AFLOA/JAJA and represented Appellant before this Court.

App. Br. at 3-4. Further, Major Williams is the only counsel who appears on the appellant’s brief to CAAF.

Major Williams was the one who submitted the out-of-time petition for reconsideration to the AFCCA. The CCA granted that petition and reconsidered the case, however it denied the appellant any relief. The appellant then petitioned CAAF for review, but the Government opposed the petition on jurisdictional grounds. CAAF then granted review of the jurisdictional question.

This procedural history presents CAAF with the rather straightforward question of whether a CCA can reconsider its own petition at any time, thereby resetting the 60 day time limit to petition CAAF. However, while the question is straightforward, the issue is not simple.

Read more »

CAAF granted review in two cases on Thursday, May 14, 2015. The first involves an issue of disparate punishment:

No. 15-0390/AR. U.S. v. Kye C. Womack. CCA 20140345.  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 specified by the Court:

WHETHER APPELLANT’S PUNISHMENT WAS “HIGHLY DISPARATE” WHEN COMPARED TO THE CO-ACCUSED.

Briefs will be filed under Rule 25.

I can’t find an opinion on the Army CCA’s website.

The second involves a specified issue that question’s the court’s jurisdiction to consider the case:

No. 15-0413/AF. U.S. v. Sebastian P. LaBella. CCA 37679.  On consideration of Appellee’s motion to dismiss the petition for grant of review for lack of jurisdiction, it is ordered that the parties submit briefs on the following issue:

WHETHER APPELLANT’S PETITION FOR GRANT OF REVIEW SHOULD BE DISMISSED FOR LACK OF JURISDICTION WHEN THE COURT OF CRIMINAL APPEALS ENTERTAINED AN UNTIMELY FILED MOTION FOR RECONSIDERATION FOR “GOOD CAUSE,” BUT DENIED THE MOTION ON OTHER GROUNDS, AND APPELLANT FILED A PETITION FOR GRANT OF REVIEW WITH THIS COURT UNDER ARTICLE 67, UCMJ, MORE THAN 60 DAYS AFTER THE ORIGINAL DECISION OF THE COURT OF CRIMINAL APPEALS, BUT WITHIN 60 DAYS OF THE FINAL DECISION ON THE MOTION FOR RECONSIDERATION. SEE, UNITED STATES v. RODRIGUEZ, 67 M.J. 110 (C.A.A.F. 2009); UNITED STATES v. SMITH, 68 M.J. 445 (C.A.A.F. 2010).

Appellant will file a brief under Rule 24 within 30 days of the date of this Order. Appellee will file a brief within 30 days of the filing of Appellant’s brief. Appellant may file a reply within 10 days of the filing of Appellee’s brief.

In United States v. Rodriguez, 67 M.J. 110 (C.A.A.F. 2009), a deeply divided CAAF held that the court lacks jurisdiction to consider a petition for grant of review filed by an appellant beyond the 60-day period during which Article 67(b) states that an appellant “may” file such a petition. Judge Erdmann wrote for the court in Rodriguez, joined by Judges Stucky and Ryan. Then-Chief Judge Effron and then-Judge Baker both dissented. You can read some analysis of the case in posts here and here.

In United States v. Smith, 68 M.J. 445 (C.A.A.F. 2010), CAAF unanimously held that when an appellant files a timely petition for reconsideration at a CCA, the 60-day time period to petition CAAF for review begins after the CCA completes its action on the petition for reconsideration.

LaBella finds what might be the only daylight between Smith and Rodriguez, and CAAF’s order for expedited briefings is particularly noteworthy in light of the fact that Chief Judge Baker’s 15-year term on the court will end in September.

Readers may also recall that after it was reviewed by the Supreme Court, the Denedo case ended with a missed deadline.

I’m catching up on CAAF’s daily journal now that the court’s website is restored and I saw this:

No. 13-0502/AF.  U.S. v. Sebastian P. LABELLA.  CCA 37679.  Review granted on the following issues:

I.    WHETHER APPELLANT’S CONVICTION FOR SPECIFICATION 1 OF THE ARTICLE 134 CLAUSE 1 AND 2 CHARGE MUST BE SET ASIDE BECAUSE THE VERDICT OF GUILT RESTED ON CONDUCT THAT WAS CONSTITUTIONALLY PROTECTED BECAUSE AT LEAST 6 OF THE IMAGES DID NOT DEPICT A LASCIVIOUS EXHIBITION OF THE GENITALS OR PUBIC AREA.

II.   WHETHER THE MILITARY JUDGE ERRED IN INSTRUCTING THE MEMBERS THAT IN ORDER TO FIND APPELLANT GUILTY OF POSSESSION OF VISUAL DEPICTIONS OF MINORS ENGAGING IN SEXUALLY EXPLICIT CONDUCT IN VIOLATION OF ARTICLE 134, CLAUSE 1 AND 2, THE IMAGES MUST BE OF A CHILD UNDER THE AGE OF 18, INSTEAD OF UNDER THE AGE OF 16  AS THE UCMJ DEFINES A CHILD.

The decision of the United States Air Force Court of Criminal Appeals is set aside.  The record of trial is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals for consideration of Issue I in light of United States v. Barberi, 71 M.J. 127 (C.A.A.F. 2012), and to address Issue II raised for the first time before this Court.

The AFCAA’s opinion in here.

In United States v. Barberi (opinion) (CAAFlog case page) CAAF found that because four of the six images of child pornography, upon which the appellant’s conviction for wrongful possession of child pornography were based, were not actually child pornography based on the definition instructed by the military judge and therefore constituted constitutionally protected speech, the appellant’s conviction for wrongful possession of child pornography had to be reversed.

CAAF’s remand is a bad sign for the Government in United States v. Warner, No. 13-0435/AR (CAAFlog case page), which is set for oral argument on Wednesday, and in which the Government’s brief argues, “To the extent that United States v. Barberi, held that any image of a minor which does not meet the technical definition of child pornography under 18 U.S.C. § 2256 is constitutionally protected, that decision must be overturned.”