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CAAF will hear oral argument in the Army case of United States v. Eugene, No. 18-0209/AR (CAAFlog case page), on Wednesday, September 12, 2018, at 3 p.m., at the Keenan Ceremonial Courtroom, 500 Pearl Street, New York. The court granted review of two issues involving consent to a search:

I. Whether Appellant’s request to Criminal Investigation Command (CID) that his cell phone be returned was a withdrawal of the third party consent to search given by Appellant’s wife in Appellant’s absence.

II. Whether the Army Court erred in determining the applicability of the inevitable discovery doctrine where (1) the CID agents failed to take any steps to obtain a warrant and (2) the case took a “dead-end” until the warrantless search.

A general court-martial composed of a military judge alone convicted Private First Class (E-3) Eugene, contrary to his pleas of not guilty, of two specifications of attempted viewing of child pornography and four specifications of attempted sexual abuse of a child, all in violation of Article 80, UCMJ. The military judge sentenced Eugene to confinement for 26 months, reduction to E-1, and a dishonorable discharge.

The convictions were based on evidence discovered on Eugene’s cell phone by his wife. Eugene allowed his wife to use his phone, and he left the device with her while he was away conducting field exercises on June 1, 2015. On June 2, 2015, Eugene’s wife used the device and discovered communications between Eugene and other women, some of whom identified themselves as minors. Eugene’s wife then contacted military authorities and authorized them to seize and search the phone. Military investigators conducted a limited, electronic search of the device, but found no evidence. Three days later, on June 5, 2015, they interrogated Eugene and he admitted to exchanging communications with underage girls. At the end of the interrogation, Eugene asked the investigators to return his phone but they did not return it. Instead, military investigators sent the phone for a more detailed electronic search. That search occurred five months later, on November 9, 2015, and yielded incriminating evidence. At no point, however, did the investigators obtain a military search authorization or a civilian search warrant.

Eugene’s defense counsel moved to suppress the fruits of the second search at trial, arguing that the investigators were required to obtain an authorization or warrant. The military judge denied the motion, ruling that Eugene’s wife consented to both the seizure of the phone and its subsequent search, and that Eugene’s request that the phone be returned was at most only a revocation of his wife’s consent to seize the phone. The Army CCA affirmed, finding that Eugene’s request that investigators return his phone was “merely an attempt to regain control over his personal property for personal convenience.” United States v. Eugene, No. 20160483, slip op. at 6 (A. Ct. Crim. App. Feb. 28, 2018). The CCA also found that the inevitable discovery doctrine applies because there was “overwhelming probable cause” and the lead investigator “would have contacted a military magistrate to get a search authorization if he believed he did not have consent.” Id. slip op. at 8.

CAAF then granted review of both of the CCA’s findings. Read more »

A reader reports that on July 6, 2018, Senior Airman Andrew Witt was resentenced by a panel of officer and enlisted members to life without the possibility of parole.

Witt’s 2005 conviction of the premeditated murder of a fellow Airman and his wife, and of the attempted murder of another Airman, earned him a death sentence. The Air Force CCA reversed the sentence – finding that Witt’s defense team was deficient in failing to investigate three areas relevant for sentencing – in United States v. Witt, 72 M.J. 727 (A.F. Ct. Crim. App. 2013) (en banc) (noted here). But the Air Force Appellate Government Division sought reconsideration and, in a dramatic reversal, the CCA reinstated Witt’s death sentence in United States v. Witt, 73 M.J. 738 (A.F. Ct. Crim. App. 2014) (en banc) (discussed here). That reversal of fortune was our #7 Military Justice Story of 2014.

CAAF then conducted a mandatory review of the case (because it involved a sentence to death), but the court limited oral argument to just two issues: Whether an en banc CCA can reconsider a prior en banc decision, and whether such reconsideration is permitted when the composition of the court changes from the first decision to the second. In a short and unanimous opinion issued in 2016 CAAF concluded that such reconsideration is allowed but that three judges who participated in the reconsideration in Witt’s case were disqualified from doing so. CAAF then set aside the CCA’s second decision and reinstated the first decision (that set aside the death sentence), remanding the case for a sentence rehearing. (CAAFlog case page).

Both Chief Judge Stucky and Judge Ohlson need full-time clerks beginning in August.

“Chief Judge Stucky anticipates two openings for full-time term clerks beginning August 2019 for a two-year period (2019-2021).” Details here.

“Judge Ohlson anticipates one opening for a full-time term clerk beginning August 2019 for a one year period.” Details here.

I received a report from a DoD network user that CAAFlog is down. It isn’t.

Last Monday I moved CAAFlog to a new hosting provider. That required updating our DNS (the system that directs traffic for to a server located at Those updates take a little while to propogate, but should be fine now.

If you’re having trouble accessing CAAFlog, try

If it’s just you, I recommend submitting a support ticket to your IT department.

CAAFlog outages should be rare and brief, and the site should be snappy and responsive. If this isn’t your experience, please let me know at (our email server is separate from our web server).

Happened upon this while visiting Clarksville, Tenn. A thank you to the prosecution shop Sergeant for offering to show us the courtroom. But we didn’t take her up on it because US v. Morales was going on and Son of No Man and I were not dressed for the occasion.


Judge Diaz and Judge Wynn were in the majority in Int’l Rfugee Assistance v. Trump. Opinion here

Here is a job announcement for the position of Navy Defense Counsel Assistance Program Complex and Sexual Assault Litigation Highly Qualified Expert (HQE).

The HQE program is authorized by 5 U.S.C. § 9903 to hire civilian employees “from outside the civil service and uniformed services . . . to positions in the Department of Defense without regard to any provision of this title governing the appointment of employees to positions in the Department of Defense.” Appointments under the HQE program are limited by paragraph (c) of the statute to 5 years, except that an appointment may be extended “by up to 1 additional year if the Secretary determines that such action is necessary to promote the Department of Defense’s national security missions.”

DoD policy is that:

HQEs shall be appointed to bring enlightened thinking and innovation to advance the DoD national security mission. HQEs are a temporary infusion of talent and provide non-permanent support for short-term endeavors.

DoDI 1400.25, V922, ¶ 4.a.

From the Macon Telegraph:

A Robins Air Force Base airman was sentenced to life Wednesday for the premeditated murder of his pregnant fiancee and her unborn daughter.

Charles Amos Wilson III, 30, a support member of the 461st Aircraft Maintenance Squadron, will not be eligible for parole, according to statement released by the public affair’s office at the base.

A three-fourths majority of a military court-martial panel of 13 officers and enlisted personnel rendered the life-without-parole sentence.

Full story here. Our prior coverage here and here. H/t CD

Not sure how I missed this, but former CAAFlog contributor Commander Marcus Fulton is now a member of the Panel 3 of the Navy-Marine Corps Court of Criminal Appeals. Congratulations!  There is hope for us all!

Update: Yesterday the Air Force announced that it recovered the data (link).

According to this report:

The U.S. Air Force has lost records concerning 100,000 investigations into everything from workplace disputes to fraud.

A database that hosts files from the Air Force’s inspector general and legislative liaison divisions became corrupted last month, destroying data created between 2004 and now, service officials said. Neither the Air Force nor Lockheed Martin, the defense firm that runs the database, could say why it became corrupted or whether they’ll be able to recover the information.

The same report notes, however, that the investigations involving sex issues are safe:

Air Force officials originally said information on sexual assaults might had been lost in the crash. After the article was published, they said that while sexual assault and harassment claims might have been part of the files lost, those types of investigations are backed up elsewhere. The inspector general does not investigate cases solely involving sexual assault. However, sexual assault or harassment might be tangentially part of an inspector general investigation, a service spokeswoman said.

Today CAAF issued its opinion in the certified Air Force case of United States v. Williams, No. 16-0053/AF (CAAFlog case page).

While CAAF’s website is down, the opinion is available here.

Analysis to follow.

So says Protect Our Defenders according to AP (story here). And while the folks at Protect Our Defenders apparently weren’t able to communicate how the MilJus system works to AP, see if you can spot the glaring error in the story, was the data provided to Congress about civilian declinations skewed?   POD released a report Monday allegedly debunking the military data:

The records were obtained through the Freedom of Information Act by the advocacy group Protect Our Defenders, which provided the documents exclusively to AP. Protect Our Defenders is scheduled to release a report Monday that criticizes the Pentagon’s use of the cases to undermine support for Senate legislation that would mandate a major change in the way the military handles sexual assault allegations.

Here is the POD report. I have not reviewed their analysis. But we will update with our thoughts. 

Thhe court martial of Army Master Sgt Omar Velez Pagan began in Fayetteville, NC reprots the Fayetteville Observer here.  The Master Sgt. is accused of murderimg his mistress while assigned as a geo-bachelor in Panama. 

The WaPo editorial bird weighs in on the Sgt. Bowe Bergdahl case, here. From the editorial:

We agree with those who say that Mr. Bergdahl’s conduct in leaving his unit was wrong, that it put lives at risk and that, despite his psychological issues, he should be accountable. At the same time, the Army may have contributed to this debacle by enlisting a soldier it shouldn’t have. And even without formal accountability, he has already suffered horribly for his actions.

In our view, the military justice system will pass this test to the extent it tempers judgment with due consideration of everything the case reveals about human frailty — and with mercy.

I am sure this will ignite comments, so please be mindful of the comments policy. 

The Military Officers Association of America is hosting a Military to Civilian Success for Legal Professionals event on December 15, 2015, at the Ritz-Carlton, Pentagon City, 1250 S Hayes St, Arlington VA 22202:

While the broader economic recovery is underway, a lagging job market and excess real estate plague many metropolitan areas. Big law and government relations firms are adjusting to less work and constrained government spending. Accordingly, many once dependable job markets are sputtering. Judge Advocates preparing to depart military service need a focused program to expand their network and accelerate their transition from military service to civilian career success.

The workshop will focus on key aspects of a successful transition for military leaders, including:

  • An expert panel of successfully transitioned legal professionals from a range of practice areas.
  • Connections with legal recruiters.
  • Networking strategies to accelerate your job search.
  • Understanding the cultural and psychological aspects of career transition.

JAGs in Transition Seminar costs: $125
JAA Members: $99

Additionally, the Navy is hiring a Highly Qualified Expert for its Defense Counsel Assistance Program. The position announcement is available here.

Our choice for the #4 military justice story of 2012 was: Mental health and disease.

Numerous mental health issues captured military justice headlines that year, including CAAF’s review of the court-martial of Marine Private Caldwell, who pleaded guilty to wrongful self-injury without intent to avoid service (in violation of Article 134) for intentionally opening his wrists with a razor blade in what an en banc Navy-Marine Corps Court of Criminal Appeals alternatively called “a bona fide suicide attempt” and “a leadership challenge.” United States v. Caldwell, 70 M.J. 630, 633 (N-M. Ct. Crim. App. 2011). CAAF reversed Private Caldwell’s guilty plea in 2013, concluding that the plea inquiry failed to establish that his suicide attempt was to the prejudice of good order and discipline in the armed forces or of a nature to bring discredit upon the armed forces. United States v. Caldwell, 72 M.J. 137 (C.A.A.F. 2013) (CAAFlog case page).

Yesterday, National Public Radio’s All Things Considered released a lengthy report about the Army’s use of the administrative separation process in cases involving soldiers seeking treatment for a range of apparently severe mental health crises. The report is: Missed Treatment: Soldiers With Mental Health Issues Dismissed For ‘Misconduct.’

The report includes this sad observation:

The cases of the 10 soldiers we investigated raise a question: Why would commanders kick out soldiers for misconduct, instead of giving them more intensive treatment or a medical retirement on the grounds that they have persistent mental health problems? Sources both inside and outside Fort Carson suggested one possible answer: It takes less time and money to get rid of problem soldiers on the grounds of misconduct.