Significant military justice events this week: The Judge Advocates Association American Inn of Court will hold an event at the George Washington University Law School Lerner Hall on Wednesday, March 25, 2015, at 6:45 p.m. Details here.

Additionally, American University – Washington College of Law will hold a National Security Law Brief Spring Symposium on Tuesday, March 24, 2015, from 2-6 p.m. The topic is “Guns for Hire: The Legal, Policy, and Ethical Implications of the Growing Reliance upon Military Contractors.” CAAF’s Chief Judge Baker will be the keynote speaker, and CAAFlog contributor Mike “No Man” Navarre will be part of a panel discussion on the history of U.S. military contractors post WWII and their expansion. Details here.

This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court.

This week at CAAF: The next scheduled oral argument at CAAF is on April 14, 2015 (it will be a Project Outreach argument at Marquette University Law School, Milwaukee, Wisconsin; then, on April 15, CAAF will hear argument at the University of Wisconsin Law School, Madison, Wisconsin).

This week at the ACCA: The Army CCA will hear oral argument in two cases this week, both on Tuesday, March 24:

At 10 a.m.: United States v. JnBaptiste, No. 20121113

I. Whether the evidence is factually and legally insufficient to support the findings of guilty.
II. Whether the military judge committed prejudicial error when he sustained a prosecution objection to a defense cross-examination question in which the defense was seeking to admit appellant’s statement denying an accusation that he “touched” the victim.

 At 2 p.m.: United States v. Barnes, No. 20120308

Issue: Whether the military judge abused his discretion by giving a military rule of evidence 413 merits instruction to the panel because no evidence had been admitted by the military judge for 413 purposes.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on Wednesday, March 25, at 10 a.m.:

United States v. Bass

Case summary: A panel of members with enlisted representation sitting as a general court-martial convicted the Appellant, contrary to his pleas, of one specification of violating a lawful general regulation, two specifications of wrongful sexual contact, and two specifications of sodomy in violation of Articles 92, 125, and 120, UCMJ. The appellant was found not guilty of seven specifications of sexual acts and contacts in violation of Article 120, UCMJ and one specification of assault consummated by a battery in violation of Article 128, UCMJ. He was sentenced to seven years’ confinement, reduction to pay grade E-1, total forfeitures, and a dishonorable discharge. The convening authority approved the sentence as adjudged, and except for the dishonorable discharge, ordered it executed.

I. Whether the military judge erred in instructing the members that consensual sodomy is a lesser-included offense of forcible sodomy.
II. Whether ABE2 Bass was on notice of the alternative crime of consensual sodomy.

Last month the Army Lawyer published an article by Major Jeremy Stephens, Explaining the Extraordinary: Understanding the Writs Process, Army Law., February 2015, at 33 (available here). The article provides a primer on extraordinary relief in the military justice system. Specifically:

This article will discuss the legal underpinnings of extraordinary relief and outline the standard procedures for filing writs by defense counsel, trial counsel, and special victim counsel. It will also compare these procedures to those used when trial counsel file appeals under the procedures of Article 62 of the Uniform Code of Military Justice. Following the conclusion, a pair of appendices is included to assist practitioners in the basic analysis of whether to file a writ or an Article 62 appeal.

Stephens, supra, at 33.

CAAF granted review in two cases yesterday. The first involves an issue specified by the court:

No. 15-0087/MC. U.S. v. Carlton Wilder, Jr. CCA 201400118.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:


Briefs will be filed under Rule 25.

I discussed the CCA’s opinion in this post. The substantial information rule from Johnson addressed the presumption of an Article 10 speedy trial violation established in United States v. Burton, 44 C.M.R. 166 (1971), for pretrial confinement in excess of 90 days. But when an accused was confined for some offenses, and then additional offenses were discovered, the 90-day clock for the additional offenses began when “the Government had in its possession substantial information on which to base the preference of charges.” Johnson, 48 C.M.R. at 601. President Reagan promulgated R.C.M. 707 in 1984 (with a 90-day clock), and President Bush modified the rule to the current 120-day standard in 1991. Burton was then overruled in United States v. Kossman, 38 M.J. 258, 261 (C.M.A. 1993).

In Wilder, the NMCCA held that “Kossman voids the Johnson rule as well,” and that “R.C.M. 707(a)(1) establishes the commencement of the speedy trial clock for the additional charges as the dates of preferral.” Wilder, slip op. at 6. Notably, the AFCCA reached a similar conclusion in United States v. Proctor, 58 M.J. 792, 797 (A.F. Ct. Crim. App 2003). But cfUnited States v. Bray, 52 M.J. 659, 661 (A.F. Ct. Crim. App. 2000) (“We hold that, when an accused is placed in pretrial confinement as a result of a particular incident, the speedy-trial clock begins to run for all offenses that the prosecution knows, or reasonably should know, were part of that incident.”). However, the Coast Guard held otherwise – and applied the substantial substantial standard – in United States v. Cooley, No. 1389 (C.G. Ct. Crim. App. Dec. 24, 2014), cert. for rev. filed, __ M.J. __ (Feb. 23, 2015) (discussed here). And the Army court applied the substantial information standard in United States v. Boden, 21 M.J. 916, 917-18 (A.C.M.R. 1986).

Because of this, I think Wilder is a great candidate for amicus filings from the Army, Air Force, and Coast Guard appellate divisions.

The second grant from yesterday involves a lesser included offense issue:

No. 15-0334/MC. U.S. v. Quantaus R. Riggins. CCA 201400046.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:


Briefs will be filed under Rule 25.

The CCA’s opinion is available here.

In Article 56, Congress delegated to the President of the United States the authority to prescribe maximum punishments for offenses under the UCMJ. These maximums are contained in Part IV of the Manual for Courts-Martial. But it’s possible for an accused to be convicted of an offense that does not have a maximum punishment listed in Part IV, and Rule for Courts-Martial 1003(c)(1)(B) provides instructions for how to calculate the maximum punishment for such an offense.

Unlisted offenses are most common under Articles 133 and 134 (where novel charges are possible). But after Congress amended Article 120 effective June 28, 2012, President Obama failed to prescribe maximum punishments for the new offenses until May 15, 2013 (notably, to this day, he has still failed to prescribe model specifications).

That failure caused early problems, including leading one military judge to rule that the maximum punishment for sexual assault in violation of Article 120(b) (2012) is the jurisdictional limit of a summary court-martial (that ruling was reversed after the Government sought extraordinary relief). Other problems persist, in cases such as the recently-decided (but unpublished) United States v. Busch, No. 38530 (A.F. Ct. Crim. App. Feb. 11, 2015) (link to slip op.).

The appellant in Busch pleaded guilty to sexual abuse of a child in violation of Article 120b(c) (2012), in connection with his online communications with a “15-year-old high school student from Florida he never met in person.” Slip op. at 2. Those communication occurred between “on or about 1 February 2013 and 20 May 2013,” slip op. at 1 n.1, raising the issue of the maximum authorized punishment for the offense.

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Today I discovered (the hard way) that CAAF suffered some sort of technical difficulty with its audio recording system during Tuesday’s oral arguments in Ward and Nettles. Both files are of incredibly poor quality.

However, I was able to enhance them significantly, such that you can hear the arguments relatively well. Those enhanced recordings are available (in mp3 format) at the following links:

United States v. Ward, No. 15-0059/NA (CAAFlog case page): Oral argument audio.

United States v. Nettles, No. 14-0754/AF (CAAFlog case page): Oral argument audio.

In United States v. Dundon, No. 38436 (A.F. Ct. Crim. App. Feb. 27, 2015) (link to slip op.), a three-judge panel of the AFCCA considers and rejects the appellant’s post-trial assertion of unlawful command influence related to “a sexual assault prevention all-call briefing that occurred the week prior to trial.” Slip op. at 2. But the panel considers the asserted error despite the fact that the appellant tried to waive the issue at trial:

In a discussion with the military judge, the appellant agreed with his counsel’s assessment that the facts brought out in his case so far did not raise the issue of unlawful command influence. After the military judge explained the potential relief the appellant could receive if such improper influence was found, the appellant agreed he wanted to “affirmatively waive any adjudicatory UCI [unlawful command influence] that may have been brought up by the facts in this case,” in order to retain the benefit of his pretrial agreement. He also signed a document which stated that the pretrial agreement precludes the military judge or any appellate court “from having the opportunity to determine if [he is] entitled to any relief” on his unlawful command influence issue and that he was agreeing to this provision in order to get the benefit of the pretrial agreement.

Slip op. at 4. The CCA notes that CAAF “has not applied waiver to issues of unlawful command influence arising during the adjudicative process, as it has for those arising during the accusatorial process.” Slip op. at 5.

Writing for the panel, Senior Judge Hecker adds this footnote:

Although our resolution of this case ultimately favors the Government, consideration of the case for certification by the Judge Advocate General under Article 67(a)(2) would appear to be particularly appropriate in view of (1) the potential inconsistency between the Court of Appeals’ precedents on waiver, adjudicative unlawful command influence, and member challenges; and (2) the importance of clear guidance to military courts and the service members who appear before them.

Slip op. at 2 n.1 (citations omitted).

In United States v. Villanueva, No. 201400212 (N-M. Ct. Crim. App. Jan. 29, 2015) (link to slip op.), a three-judge panel of the Navy-Marine Corps CCA reverses the appellant’s conviction for male-on-male forcible sodomy after finding that the military judge erred by denying the defense the opportunity to question the alleged victim about the “things he had done while drunk, including placing his penis in another man’s hand during a penis measuring contest.” Slip op. at 2.

At trial, the alleged victim was allowed to testify that he was a heterosexual. The Government then used the alleged victim’s sexual orientation as proof of the charged offense:

In its opening statement, the Government described HN P as someone who “was all about meeting whoever knew the good looking girls,” and was “not into [homosexual activity].” HN P testified during the trial that he “was straight.” This could only have left the members with the impression that, since HN P was not gay, he would not have consented to the sodomy.

Slip op. at 5 (modification in original) (citations to record omitted). But despite this testimony and argument, the appellant was not allowed to cross-examine the alleged victim about his sexuality or his conduct while intoxicated (notably, the alleged victim was intoxicated at the time of the alleged forcible sodomy). Writing for the panel, Judge Holifield explains that this was error because:

These statements go directly to the appellant’s ability to challenge the Government’s proof that the appellant did not hold a reasonable and honest belief that HN P was consenting to the sexual activity. . . . By excluding them, the military judge denied the appellant his right to mount a defense, and allowed the Government to meet its burden based on an incomplete description of events.

Slip op. at 5. The CCA reverses the conviction and authorizes a rehearing.

In addition to the 412 issue, the prohibition of M.R.E. 404(a)(1) immediately comes to mind:

Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

I’m aware of precedent that holds that heterosexuality is a pertinent character trait of the accused that may be presented by the defense under M.R.E. 401(a)(2). See United States v. Gagan, 43 M.J. 200 (C.A.A.F. 1995). But I’m not aware of any caselaw that supports the Government’s implication in this case that the alleged victim was heterosexual and therefore did not consent to the sodomy with the appellant. That seems to be a clear invocation of improper propensity evidence.

CAAF decided the certified Air Force case of United States v. Morita, __ M.J. __, No. 14-5007/AF (CAAFlog case page) (link to slip op.), on Monday, March 16, 2015. The court rejected the Government’s expansive argument for court-martial jurisdiction over reservists, concluding that a forged order alone does not establish court-martial jurisdiction over a reservist not otherwise performing military duties. CAAF partially answers the certified issue in the negative, reverses the Air Force CCA in part, and remands the case for reassessment of, or a rehearing on, the sentence.

Judge Ryan writes for a unanimous court.

CAAF’s review involves two issues related to court-martial jurisdiction, one certified and the other granted:

Certified Issue: Whether the Air Force Court of Criminal Appeals erred when it found the court-martial lacked subject matter jurisdiction and whether the Air Force Court of Criminal Appeals abused its discretion when it refused to grant the Government’s motion to submit documents.

Granted Issue: Whether the Air Force Court of Criminal Appeals erred by finding that a reservist can create court-martial jurisdiction by forging active duty orders and/or inactive-duty training orders and by finding that court-martial jurisdiction existed for each 120-day period listed on the three applications for MPA man-day tours.

Appellee, a reservist, repeatedly forged signatures in order to place himself on travel orders and to receive compensation for travel expenses related to reserve duty. “Appellee’s false claims for travel reimbursement totaled $124,664.03, and he forged 510 signatures or initials on more than 100 documents.” Slip op. at 6. He also had periods of legitimate reserve duty, and some of his offenses were committed during those periods.

At trial Appellee challenged the existence of court-martial jurisdiction, asserting (generally) that his misconduct occurred while he was not subject to the UCMJ. “The Government defended jurisdiction primarily on the grounds that Appellee made the forgeries in his official capacity as a reserve officer.” Slip op. at 7.

The military judge agreed with the Government, but the AFCCA reversed in part in a published opinion (discussed here) in which it reversed many of Appellee’s convictions and reduced the sentence dramatically. In particular:

[T]he CCA identified three separate statuses that Appellee occupied during the charged time frame: (1) valid active duty status obtained through authorized 120 MPA man-day tours, Morita, 73 M.J. at 558; (2) active duty status or inactive duty status based on documents that contained forgeries, although there was no evidence that Appellee actually reported for duty during the time periods covered by the forgeries, id. at 559; and (3) reserve status, held during the remainder of the charged time frame. Id. at 560. The CCA held that the first two categories conferred subject matter jurisdiction under Article 2(a), UCMJ. Regarding the third category, the CCA found that the record did not show enough facts to conclude that Appellee’s activities as a reservist rose to the level of “serving with” the armed forces under Phillips, 58 M.J. at 220, nor to show that the remaining statutory criteria were fulfilled, and thus there was no subject matter jurisdiction under Article 2(c), UCMJ.

Slip op. at 8. Judge Ryan’s opinion affirms the CCA’s finding of jurisdiction under the first status and its finding of no jurisdiction under the third status, but it reverses the CCA’s finding of jurisdiction under the second status, resulting in the reversal of even more of Appellee’s convictions. Additionally, Judge Ryan’s opinion does not directly address the portion of the certified issue involving the Government’s motion to submit documents, because the CCA found that the documents would not have changed its opinion and so “there is no justiciable issue for [CAAF] to resolve.” Slip op. at 20 n.7.

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JAAAIOC March HandoutThe Judge Advocates Association American Inn of Court will hold an event at the George Washington University Law School Lerner Hall (Rm. LL102) on Wednesday, March 25, 2015, at 6:45 p.m, followed by a social event at Tonic, 2036 G Street NW, Washington, DC, at 7:45 p.m.

The event will include a presentation by Colonel Jay R. McKee, US Army Program Manager, Special Victim Counsel (SVC) Program, titled United States Army Special Victims’ Counsel Program: The Gold Standard for Representing Victims of Sexual Assault.

The event is open to the public but attendees are requested to RSVP to before end of the day on Monday, March 23, 2015. More information is available by clicking on the flyer to the right.

We don’t know everything about United States v. Sauk, the case in which the Air Force Court of Criminal Appeals (AFCCA) held an en banc oral argument last week to determine if the Government counsel should be held in contempt for failing to respond to a post-trial discovery order issued by the AFCCA. But I think we know enough to conclude that the Government’s position is untenable.

Note: I use the pronoun “we” because this post is based on the CCA’s initial opinion, its oral argument order, the oral argument audio, and other matters of public record. I have no other knowledge of the Sauk case and I have not discussed it with any of the counsel involved.

Here are the facts as we know them.

The appellant was convicted in 2013, by a general court-martial composed of members with enlisted representation, of involuntary manslaughter, aggravated assault, assault, and negligent homicide, all in connection with the death of the appellant’s infant son. The appellant was sentenced to confinement for five years, reduction to E-1, and a bad-conduct discharge.

In an opinion dated January 20, 2015 (available here), a three-judge panel of the AFCCA rejected numerous assignments of error (including assertions of factual and legal insufficiency) but it dismissed the aggravated assault, assault, and negligent homicide charges on the basis that they were charged in the alternative, citing United States v. Elespuru, 73 M.J. 326 (C.A.A.F. 2014) (CAAFlog case page). The panel then approved the adjudged sentence.

Two days later, the appellant moved to compel post-trial discovery on the basis that a report released by the Department of Defense Inspector General (available here) found significant deficiencies in military criminal investigations of child death cases. The appellant’s motion sought production of documents related to the organizations that investigated the death of his son.

The Government opposed the appellant’s motion for post-trial discovery. The Government also sought reconsideration of the AFCCA’s dismissal of the aggravated assault, assault, and negligent homicide charges.

On February 2, 2015, the AFCCA granted the appellant’s motion for post-trial discovery in part, ordering the Government to disclose whether the appellant was referenced in investigations returned to Air Force investigators. The Government was to comply no later than February 17, 2015. The AFCCA did not act – and still has not acted – on the Government’s request for reconsideration of the dismissal of the offenses charged in the alternative.

The Government sought reconsideration and en banc consideration of the AFCCA’s discovery order. The AFCCA denied that request, notifying the parties of that denial on February 13, 2015. It then extended the deadline for the Government to comply with the order to February 20, 2015.

On February 20, 2015, the Government did not comply with the AFCCA’s order. Rather, it informed the AFCCA that it was considering asking the Judge Advocate General of the Air Force to certify the case to CAAF pursuant to the authority granted by Article 67(a)(2). The appellant responded by asking the AFCCA to set aside the conviction based on the Government’s refusal to comply with the AFCCA’s order. The AFCCA then ordered the Government to show cause by March 3, 2015, why the appellant’s request to set aside the conviction should not be granted.

The Government responded to the show cause order by again asserting that the Judge Advocate General of the Air Force could certify the case, and it claimed that it was allowed 60 days to pursue that certification (a claim that is apparently based on the 60-day deadline in CAAF’s Rule 19(b)(3)). The Government also renewed its previously-denied request for reconsideration of the post-trial discovery order.

Then, on March 6, 2015, the AFCCA issued an order (available here) scheduling oral argument to determine whether the case should be dismissed or whether the Government counsel should be held in contempt. The order provided the above-detailed procedural history of the case.

The argument was held on March 10, 2015. The argument was exclusively a presentation by Government counsel, as the appellant’s counsel elected to make no argument.

But the Government’s presentation was astonishing.

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This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court.

This week at CAAF: CAAF will hear oral argument in two cases this week, both on Tuesday, March 17, 2015, beginning at 9 a.m.:

United States v. Ward, No. 15-0059/NA (CAAFlog case page)

Issue: The convening authority issued an instruction that limited court-martial member nominations to personnel only in the pay grades between E-7 and O-5. The lower court found this systematic exclusion of personnel to be error, but harmless. Should this court set aside appellant’s convictions based on the rationale of United States v. Kirkland due to the unresolved appearance of unfairness?

Case Links:
NMCCA opinion
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

United States v. Nettles, No. 14-0754/AF (CAAFlog case page)

Issue: Whether the Air Force had personal jurisdiction over Appellant at the time of his trial.

Case Links:
AFCCA opinion
Blog post: The AFCCA rejects constitutional protections for threesomes
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

 This week at the ACCA: The Army CCA will hear oral argument in two cases this week:

Tuesday, March 17, 2015, at 10 a.m.:

United States v. Jackson, No. 20120159

I. Whether Charge I should be dismissed as it fails to state an offense because an overt act in furtherance of a conspiracy cannot occur after the crime conspired to is complete? See United States v. Grunwald, 353 U.S. 391, 400 (1957).
II. Whether the military judge committed plain error by permitting one special agent to act as a human lie detector?

Wednesday, March 18, 2015, at 10 a.m.:

United States v. Fowler, No. 20121079

Issue: Whether the military judge violated PFC Fowler’s constitutional right against double jeopardy when he found PFC Fowler “not guilty” of desertion and subsequently found PFC Fowler guilty of desertion after allowing the government to introduce evidence.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on April 30, 2015.

The December 2014 issue of the Federal Sentencing Reporter is titled Military Sentencing: Another Federal Sentencing System (Part 1). The full edition is not available for free online, but the table of contents (and previews of the articles) is available for free at this JSTOR link.

The issue includes an article by Chief Judge Baker of CAAF that is available for free online: James E. Baker, Is Military Justice Sentencing on the March? Should it be? And if so, Where should it Head? Court-Martial Sentencing Process, Practice, and Issues, 27 Fed. Sent’g Rep. 72-87 (2014-2015) (available here).

Noting that “military justice is an essential national security tool,” Chief Judge Baker’s article:

starts with a sketch of the military justice system to orient readers. Understanding that structure, the article then describes the sentencing process for special and general courts-martial. The article follows by identifying two core military sentencing questions: First, should commanders have authority to grant clemency? Second, should the military justice system adopt sentencing guidelines? With respect to each topic presented, the article does not attempt to answer the questions nor offer prescriptions. Rather, it seeks to identify the principal fault lines around which debate should, or will likely, fall. The article next presents ‘‘nutshell’’ introductions to additional sentencing matters that may warrant review as applied in the military context, including the handling of collateral matters, and the relationship between age and culpability.

Baker, supra, at 72.

The article is balanced, an interesting read, and worthy of your time this Saturday morning.

There’s a lot to say about the recently published decision in United States v. D.W.B., __ M.J. __, No. 201400359 (N-M. Ct. Crim. App. Feb. 26, 2015) (link to slip op.), in which a three-judge panel of the court concludes “that memory recovered by means of a formal psychological process is the product of a scientific process and therefore subject to a baseline reliability determination as a precondition to admissibility,” and it adopts the totality of the circumstances test to determine such reliability. Slip op. at 20-21.

For starters, the case is a Government interlocutory appeal of a military judge’s ruling that suppressed the testimony of an alleged child sexual assault victim. The suppression occurred after the military judge determined that the testimony “was the product of a tainted and highly suggestive psychological process, and therefore inadmissible.” Slip op. at 2. The psychological process at issue is “a psychotherapeutic approach known as Eye Movement Desensitization and Reprocessing (EMDR),” slip op. at 2. Before issuing this ruling, the military judge conducted a hearing to assess the reliability of the child’s testimony based on the totality of the circumstances, and the CCA affirms that process and its result in this case.

But an added twist to the case is that the CCA identifies the accused by only his initials, explaining:

The name of the appellee has been withheld from this opinion to protect the privacy interests of the alleged victim, whose identity would otherwise be apparent.

Slip op. at 1 n.1.

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Here is the Government’s Answer to the petition for reconsideration in United States v. Gutierrez, __ M.J. __, No. 13-0522/AF (C.A.A.F. Feb. 23, 2015) (CAAFlog case page).

And here is Appellant’s Reply to the Government’s Answer.

Disclaimer: I assisted in drafting the Reply and appear among the counsel for Appellant.

Audio of the oral argument in United States v. Sauk, No. 38398 (discussed and debated in this post) is available on the AFCCA’s website here.

The audio is just over 30 minutes long, and the file on the CCA’s server is 30 MB and is in Windows Media Audio format. I converted it to mp3 (reducing the size to 20 MB) and made some improvements to the volume, and put it on our server here.