Audio of yesterday’s oral argument before the Air Force CCA in United States v. Simmons, No. 39342 (noted here) is available here: Oral argument audio.

Note: The argument begins about 5:30 into the recording.

Audio of the oral argument before the NMCCA in United States v. Jennings, No. 201700241 (noted here), is available here: Oral argument audio.

This week at SCOTUS: The cert. petition in Dinger was denied on November 13. The solicitor general received a second extension of time to file the requested response to the cert. petition in Larrabee. The petition in Eppes was distributed for conference on November 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: The next scheduled oral argument at CAAF is on December 4, 2018.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on December 6, 2018

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Simmons, No. 39342, on Wednesday, November 28, 2018, at 10 a.m. No additional case information is available on the CCA’s website.

Disclosure: I represent the appellant in my civilian capacity and will argue this case.

This week at the CGCCA: (updated) The next scheduled oral argument at the Coast Guard CCA is on December 13, 2018. The argument will occur in the Navy-Marine Corps CCA’s courtroom aboard the Washington Navy Yard.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on December 20, 2018.

CAAF decided the Army case of United States v. Criswell, 78 M.J. __, No. 18-0091/AR (CAAFlog case page) (link to slip op.), on November 16, 2018. The court granted review to determine whether the military judge erred by allowing the alleged victim to identify Criswell as her assailant during her testimony, even though she did not know him before the alleged assault and she was shown a picture of him (and only him) before trial in a way that was found to be unnecessarily suggestive. CAAF narrowly affirms the military judge ruling and Criswell’s convictions, with the majority applying a highly-deferential standard of review that focuses on Criswell’s appellate-stage objections to the military judge’s ruling. The dissenters, however, conduct a broader review, find numerous flaws in the military judge’s ruling, and would reverse the findings and authorize a rehearing.

Judge Maggs writes for the court, joined by Chief Judge Stucky and Judge Ryan. Judge Ohlson dissents, joined by Judge Sparks.

CAAF granted review of a single issue:

Whether the military judge abused his discretion in denying a defense motion to suppress the accusing witness’s in-court identification of Appellant.

A general court-martial composed of a military judge alone convicted Specialist (E-4) Criswell, contrary to his pleas of not guilty, of one specification of making a false official statement, two specifications of abusive sexual contact, one specification of assault consummated by battery, and one specification of indecent language in violation of Articles 107, 120, 128, and 134. Criswell was sentenced to confinement for two years, reduction to E-1, and a dishonorable discharge.

Criswell’s convictions relate to an allegation by Specialist (SPC) AM that she was verbally harassed and sexually touched on two separate occasions during a large party at a convention center. SPC AM is a white female; her assailant was a black man. The lighting was poor during both encounters and SPC AM did not know her assailant, but she saw his face well enough to provide a general description to another soldier at the party and based on that description the other soldier suspected Criswell. Military criminal investigators showed SPC AM a single picture of Criswell the next day, and she identified him at that time as her assailant “immediately and without hesitation.” Slip op. at 7 (quoting military judge’s findings of fact). Testifying in court, SPC AM again identified Criswell as her assailant. The military judge did not allow the prosecution to introduce SPC AM’s out-of-court identification of Criswell, but he allowed the in-court identification over a defense objection that challenged it as the unreliable product of the actions of the military investigators.

Considering those facts, all of CAAF’s judge’s agree that eyewitness identifications can lead to injustice. Judge Maggs observes for the majority that “eyewitness identifications are problematic in any criminal justice system.” Slip op. at 2. Judge Ohlson observes for the dissenters that “mistaken eyewitness identifications are responsible for more wrongful convictions than all other causes combined.” Diss. op. at 11 (quoting United States v. Brownlee, 454 F.3d 131, 142 (3d Cir. 2006)). But CAAF splits over how to review the eyewitness identification allowed in this case. While the ordinary standard of review for rulings admitting evidence is abuse of discretion – where findings of fact are reviewed for clear error and conclusions of law are reviewed de novo – the majority narrows that approach, with Judge Maggs explaining:

Applying this standard in this case, we do not undertake a de novo analysis of whether the in-court identification should have been admitted. Instead, we focus on Appellant’s objections to the military judge’s findings of fact, view of the law, and conclusions in applying the law to the facts.

Slip op. at 7 (emphasis added). The majority then addresses the challenges raised in Criswell’s “brief and reply brief,” slip op.at 8, and during oral argument, slip op. at 8-9 (citing oral argument recording). See also slip op. at 11 (excusing the military judge’s failure to specifically address a factor because “Appellant does not contend, either in his briefs or his oral argument[,] that the military judge misunderstood this aspect [of the law]”). The dissenters, however, make no reference to Criswell’s briefs or to the oral argument while concluding that “the military judge committed three errors in this case.” Diss. op. at 4.

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Defense counsel for CDR Bryce Benson, the former USS Fitzgerald CO, filed a wide ranging motion to dismiss claiming unlawful command influence at the highest levels of the Navy (Navy Times coverage here). Navy Times reports that the motion asks for dismissal of all charges based on conduct by the CNO, VCNO, Navy JAG (Vice Admiral Crawford), and others:

In a 28-page filing punctuated by broadsides against the Navy’s top leaders, Benson’s defense attorneys take aim at both Chief of Naval Operations Adm. John Richardson and Vice Chief of Naval Operations Adm. Bill Moran for statements that blamed Benson for the June 17, 2017, disaster that killed seven sailors.

“CNO and (VCNO), in coordination with other senior Navy leaders, have so frequently blamed Commander Benson for his ship’s collision that no panel could fairly sit at his court-martial,” attorney Lt. Cmdr. Justin Henderson wrote in a motion filed Wednesday.

More to follow. Anyone that can send us a copy of the motion, please do.

Two years ago, in EV v. United States & Martinez, 75 M.J. 331 (C.A.A.F. Jun. 21, 2016) (CAAFlog case page), a unanimous CAAF found no jurisdiction under Article 6b to entertain a writ-appeal by an alleged victim who sought to reverse a military judge’s order for disclosure of portions of her mental health records.

The military judge – Marine Corps Lieutenant Colonel Robinson – ordered release of the records on the basis that disclosure was required to protect the constitutional rights of the accused (seemingly reviving the constitutionally-required exception that was deleted from the Manual for Courts-Martial in 2015) and on the basis that the crime/fraud exception applies (as EV’s mental health treatment was – perhaps fraudulently – used to justify an expedited transfer of her active-duty husband).

Soon after CAAF dismissed the petition, EV (who is an alleged victim of sexual assault) filed suit in U.S. District Court seeking to prevent the release of her mental health records. The suit was dismissed on the basis that the United States has not waived its sovereign immunity from such actions. I discussed the dismissal order in this post.

EV appealed that dismissal to the 9th Circuit. The court heard oral argument in June (link to audio) (link to video). Last month it affirmed the dismissal, in E.V. v. Robinson, __ F.3d __, No. 16-16975, 2018 U.S. App. LEXIS 29166 (9th Cir. Oct. 17, 2018) (link to slip op.).

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Yesterday CAAF granted review in this Air Force case:

No. 18-0372/AF. U.S. v. Paul D. Voorhees. CCA 38836. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:

I. WHETHER THE AFCCA ERRED IN FINDING NO PLAIN ERROR DESPITE TRIAL COUNSEL’S ARGUMENT ON FINDINGS THAT PERSONALLY ATTACKED APPELLANT AND TRIAL DEFENSE COUNSEL, COMMENTED ON APPELLANT’S SILENCE, EXPRESSED HIS PERSONAL OPINIONS, BOLSTERED HIS OWN CREDIBILITY, VOUCHED FOR GOVERNMENT WITNESSES, SPECULATED, AND MADE REFERENCE TO FACTS NOT IN EVIDENCE.

II. WHETHER THE AFCCA ERRED IN FINDING THAT THE SPECIFICATIONS ALLEGING VIOLATIONS OF ARTICLE 133, UCMJ, STATED AN OFFENSE DESPITE THE FACT THAT THEY LACK WORDS OF CRIMINALITY OR A MENS REA.

III. WHETHER PLAIN ERROR OCCURRED WHEN THE MILITARY JUDGE FAILED TO INSTRUCT THE MEMBERS THAT MENS REA WAS AN ELEMENT OF AN OFFENSE UNDER ARTICLE 133.

Briefs will be filed under Rule 25.

In 2015 Major Voorhees was convicted of one specification of sexual assault by causing bodily harm and five specifications of conduct unbecoming of an officer and gentleman, and sentenced to confinement for three years, total forfeitures, and a dismissal. On appeal the following year, in an opinion available here, the Air Force CCA found the sexual assault conviction factually insufficient and ordered a sentence rehearing. At the rehearing in 2017 a military judge sentenced Voorhees to a reprimand and to be dismissed. Then, earlier this year, the CCA again affirmed the findings of conduct unbecoming, and it affirmed the revised sentence, in an opinion available here.

With a published decision in United States v. Hernandez, __ M.J. __, No. 1452 (C.G. Ct. Crim. App. Oct 31, 2018) (link to slip op.), a three-judge panel of the Coast Guard CCA consolidates three convictions of assault consummated by a battery into one, concluding “that separate assaults consummated by battery of a single person that are united in time, circumstance, and impulse fall within one unit of prosecution under Article 128, not several.” Slip op. at 5.

Electrician’s Mate Second Class (E-5) Hernandez unconditionally pleaded guilty at a special court-martial to three specifications of assault consummated by a battery in violation of Article 128. His pleas at a special court-martial avoided a trial by a general court-martial for touching another service member in a sexual manner. The three specifications “alleged that in the same location on the same date, [Hernandez] unlawfully touched [the alleged victim] ‘on the leg, above the knee, with his pelvis,’ (Specification 1), ‘on her ribs and upper torso with his hands,’ (Specification 2), and ‘on her hips with his hands’ (Specification 3).” Slip op. at 2. Hernandez was sentenced to confinement for eight months, reduction to E-1, and a bad-conduct discharge.

“The prohibition against multiplicity is necessary to ensure compliance with the constitutional and statutory restrictions against Double Jeopardy.” United States v. Campbell, 71 M.J. 19, 23 (C.A.A.F. 2012) (CAAFlog case page) (quoting United States v. Quiroz, 55 M.J. 334, 337 (C.A.A.F. 2001)). Multiplicity generally arises when an accused is charged with violating two separate statutes based on a single bad act. If the two offenses are related such that one is a lesser included offenses of the other, then conviction of both violates the prohibition against double jeopardy. See United States v. Elespuru, 73 M.J. 326, 328 (C.A.A.F. 2014) (citations omitted) (CAAFlog case page).

But a lesser-known kind of multiplicity arises when an accused is charged with multiple violations of a single statute based on a single course of conduct, such as a physical attack where every strike results in a separate charge of assault consummated by a battery. When that happens it is necessary to determine if Congress intended the offense to be applied as a “continuous-course-of-conduct offense or as an individual-act offense.” United States v. Neblock, 45 M.J. 191, 197 (C.A.A.F. 1996). In Neblock, CAAF explained that:

If [the offense] is a continuous-course-of-conduct offense as a matter of law, a separate conviction for each alternative method of commission or component of this offense during the course of conduct might not be authorized. If it is a distinct or discrete-act offense, separate convictions are allowed in accordance with the number of discrete acts.

Neblock, 45 M.J. at 197 (citations omitted). So, for example, in a case involving multiple charges of assault, CAAF has held that assault is “a continuous course-of-conduct-type offense and that each blow in a single altercation should not be the basis of a separate finding of guilty.” United States v. Flynn, 28 M.J. 218, 221 (C.M.A. 1989).

In Hernandez the Coast Guard CCA considers a number of precedents including Flynn (but not Neblock) and concludes that the three specifications of assault consummated by a battery are multiplicious (and even facially duplicative, allowing Hernandez to raise the issue for the first time on appeal) because:

The three touchings “happened around the same time,” “happened really fast,” and were part of an uninterrupted sequence in which Appellant attempted “to make a pass” on a single victim. (R. at 42, 46.) The stipulation of fact illustrates the point. It begins the recitation of each touching with, “I climbed on top of SK3 J.C., who was lying on the bed, and touched . . . .” (Prosecution Ex. 1 at 2–3). It says that SK3 JC “felt uncomfortable” and “felt threatened” by each touching. (Id. at 2–4.) After describing the third touching, it says that SK3 JC was “immediately startled,” at which point she told him to stop, pushed him off her, and the unwanted physical contact ceased. (Id. at 3). Given congressional intent as pronounced in Morris and this unity of time, circumstance, and impulse, the three convictions under Article 128 were for touchings that fell within but one unit of prosecution and therefore violated the Double Jeopardy Clause. We thus consolidate the specifications in our decretal paragraph.

Slip. op. at 6-7. The CCA reassesses the sentence, reducing the confinement to six months and the reduction in rank to E-2 but affirming the bad-conduct discharge.

This week at SCOTUS: The solicitor general waived the right to respond to the cert. petition in Eppes. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking three cases:

This week at CAAF: The next scheduled oral argument at CAAF is on December 4, 2018.

This week at the ACCA: The Army CCA, sitting en banc, will hear oral argument in one case this week, on Tuesday, November 13, 2018, at 2 p.m.:

United States v. Kelly, 20150725

Issue: What is the scope of this Court’s review given the remand from the Court of Appeal for the Armed Forces?

Disclosure: I represent the appellant in my civilian capacity and will argue this case.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on November 28, 2018.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

The Air Force Judge Advocate General’s School’s quarterly publication, The Reporter, has a new digital face, a new online home, and a new blog-like format. (Previous versions can still be found on the AFJAGS website here and here.)

Recent articles posted to the new site cover topics as varied as an assessment of recent efforts to provide law of war and human rights training to the Columbian military, to a practical guide to sentence rehearing proceedings.

An article from that publication, by Air Force Major R. Scott Adams, recently caught my eye: The Court-Martial of Private Vasily Shabunin: An Obscure Trial and its Lasting Impact on Novelist Leo Tolstoy. 

Major Adams’ article contains a detailed account of famed author Leo Tolstoy’s experience as a defense counsel representing a young Army Private who was ultimately executed for striking his Captain.  The article also notes that Tolstoy once, while weeping, said:

[The experience with Shabunin] had much more influence [on me] than all the seemingly more important events of life; the loss of or recovery of wealth, successes or failures in literature, even the loss of people close to me.

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Back in July the Air Force CCA issued a decision in United States v. Collins, 78 M.J. 530 (A.F. Ct. Crim. App. Jul 23, 2018) (discussed here), in which it reversed a 2017 conviction for a rape alleged to have occurred in 2000.

The CCA took that action because in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), a unanimous CAAF held that the offense of rape of an adult (without aggravating factors) is not constitutionally punishable by death, and so the statute of limitations for a court-martial prosecution for that offense (prior to amendments enacted in 2006) is just five years.

In Collins the CCA observed that:

In light of Mangahas, the statute of limitations applicable to the charged offense of rape in violation of Article 120, UCMJ, committed on or about 25 August 2000 was five years. See Mangahas, 77 M.J. at 225. Therefore, the statute of limitations in Appellant’s case expired in August 2005, more than ten years before the charge and specification were preferred and delivered to the summary court-martial convening authority in March 2016.

78 M.J. at 534. Furthermore, the CCA noted that even if the extension of the statute of limitations enacted by Congress in 2006 were retroactive, the ex post facto clause prohibits applying the extension in Collins because the time period under the pre-extension statute of limitations (as interpreted by Mangahas) expired before the extension.

On Monday the Air Force JAG certified the case to CAAF:

No. 19-0052/AF. United States, Appellant v. Richard D. Collins, Appellee. CCA 39296. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 on this date on the following issues:

I. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT DETERMINED THAT THE 2006 AMENDMENT TO ARTICLE 43, UCMJ, CLARIFYING THAT RAPE IS AN OFFENSE WITH NO STATUTE OF LIMITATIONS, DID NOT APPLY TO APPELLEE’S 2000 RAPE OFFENSE.

II. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT FOUND THAT APPELLEE COULD SUCCESSFULLY RAISE THE STATUTE OF LIMITATIONS DEFENSE FOR THE FIRST TIME ON APPEAL.

III. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT FOUND THAT THE MILITARY JUDGE COMMITTED PLAIN ERROR BY FAILING TO INFORM APPELLEE HE COULD RAISE THE STATUTE OF LIMITATIONS AS A BAR TO TRIAL.

Appellant will file a brief under Rule 22(b) in support of said certificate on or before the 5th day of December, 2018.

CAAF is considering similar issues in United States v. Briggs, No. 16-0711/AF (CAAFlog case page). The oral argument in Briggs is scheduled for December 4, 2018.

With a published opinion captioned In re: Vance, __ M.J. __, No. 20180011 (A. Ct. Crim. App. Nov. 5, 2018) (link to slip op.), a three-judge panel of the Army CCA issues a writ of mandamus “directing the convening authority to take action on this case in the manner required under Article 60, UCMJ” – meaning to approve the findings and sentence of a general court-martial. Slip op. at 9.

Captain Vance was accused of misuse of his government travel card and of unauthorized absences in 2016 and 2017. He submitted a request to resign in lieu of court-martial. Soon afterward, he submitted an offer to plead guilty at a general court-martial. The plea offer was accepted by the convening authority and Vance pleaded guilty in January 2018 and was sentenced to a dismissal and forfeiture of $1,000 pay per month for three months. Then, in March 2018, Vance’s resignation request was accepted by the Deputy Assistant Secretary of the Army. “The Secretary’s designee issued a directive that CPT Vance be administratively discharged with an Under Other Than Honorable Conditions characterization of service and, as to the court-martial, ‘both findings and sentence, if any, be vacated.'” Slip op. at 2.

Can’t do that.

The current version of Article 60 – as amended by the 2013 changes to the UCMJ – prohibits a convening authority from disapproving a finding of guilty except in cases involving only minor offenses or in cases involving an offense committed before June 24, 2014. Neither exception applies to Vance’s general court-martial conviction. Nevertheless, the convening authority (as instructed by the Deputy Assistant Secretary of the Army) disapproved the findings in Vance’s case.

The CCA finds that action to be void:

The convening authority’s action complied . . . was prohibited by the amendments to Article 60, UCMJ. The convening authority was prohibited from setting aside any finding. The convening authority was also prohibited from setting aside the dismissal. Accordingly, we reach the same result as we did in Alvin, and determine that the convening authority’s action was void ab initio.

Slip op. at 5. Writing for the panel, Judge Wolfe further explains:

As we see it, according to Congress’s amendment to Article 60, UCMJ, the convening authority’s only authorized action was to approve the findings and the dismissal. If the convening authority could not change the sentence, under the statutory scheme that results, review by this Court was mandatory once the sentence was determined by the court-martial. Put differently, our mandatory review under Article 66(c), UCMJ, was triggered by the sentence to a dismissal, which the convening authority was prohibited from changing.

Slip op. at 6.

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

United States v. Bodoh, No. 18-0201/AR (CAAFlog case page): Oral argument audio

United States v. Nicola, No. 18-0247/AR (CAAFlog case page): Oral argument audio

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

United States v. King, No. 18-0288/AF (CAAFlog case page): Oral argument audio

United States v. Kohlbek, No. 18-0267/AR (CAAFlog case page): Oral argument audio

Significant military justice event this week: The LexisNexis CLE on recent reforms to the UCMJ is on Tuesday, November 6, 2018, at The National Press Club in Washington D.C. Additional details available here. Note: Event open to DoD-affiliated persons only.

This week at SCOTUS: The cert. petition in Andrews was denied on October 29. An amicus brief (available here) in support of the cert. petition in Dinger was filed by the National Institute of Military Justice and the Amicus Project at Southwestern Law School.

The Court docketed a pro se, cert. petition (available here) that was filed back in August in Eppes v. United States, No. 18-6531. In United States v. Eppes, 77 M.J. 339 (C.A.A.F. Apr. 10, 2018) (CAAFlog case page), CAAF affirmed conditional pleas of guilty, unanimously concluding that one challenged search was proper, and concluding by a majority that a second challenged search was technically problematic but its fruits ultimately admissible.

I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking four cases:

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

Tuesday, November 6, 2018, at 9:30 a.m.:

United States v. King, No. 18-0288/AF (CAAFlog case page)

Issue: The military judge found Appellant guilty of viewing child pornography. But all of the alleged child pornography appellant allegedly viewed was found in unallocated space or a Google cache. Is the evidence legally sufficient?

Case Links:
AFCCA decision
Appellant’s brief
Appellee’s (Air Force App. Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

Followed by:

United States v. Kohlbek, No. 18-0267/AR (CAAFlog case page)

Issue: Whether the military judge erred by misconstruing Mil.R.Evid. 707 and prohibiting Appellant from presenting evidence relevant to Appellant’s post-polygraph statement.

Case Links:
ACCA decision
Appellant’s brief
Appellee’s (Army App. Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

Wednesday, November 7, 2018, at 9 a.m.:

United States v. Bodoh, No. 18-0201/AR (CAAFlog case page)

Issue: Whether the military judge plainly erred by allowing the trial counsel to misstate the law and argue that the panel should base its verdict on SHARP training

Case Links:
ACCA decision
Blog post: CAAF grant
Appellant’s brief
Appellee’s (Army App. Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

Followed by:

United States v. Nicola, No. 18-0247/AR (CAAFlog case page)

Issue: Whether the evidence of indecent viewing in violation of Article 120c, UCMJ, was legally sufficient.

Case Links:
ACCA decision
Appellant’s brief
Appellee’s (Army Gov’t App. Div.) brief
Blog post: Argument preview

This week at the ACCA: The Army CCA’s website shows no scheduled oral arguments.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on November 28, 2018.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.