Audio of Thursday’s oral argument at the NMCCA in United States v. Spurling is available at the CCA’s website here. The recording is of poor quality, so I created an enhanced version (applying noise correction and compression) available here (note: the file is a 68MB mp3).

The case involves a claim of ineffective assistance of counsel based on the failure of the defense to seek suppression of the appellant’s statement (made in the absence of an Article 31(b) warning). This is the NMCCA’s second review of this case. The court previously issued an en banc decision denying appellant relief (discussed here), but CAAF summarily reversed and remanded (discussed here). The issue before the court now (discussed here) focuses on the standard of prejudice to be applied when evaluating a claim of IAC.

Notably, during the argument, the Government counsel asserted a difference between military correction and military discipline, arguing that the appellant’s statement should not be suppressed (meaning that there was no prejudice in the failure of counsel to seek suppression) because the military questioner intended only to correct the appellant, not to discipline him. I think the idea that there is a difference between correction and discipline in the military context is, frankly, nonsensical.

CAAF decided the Army case of United States v. Keefauver, __ M.J. __, No. 15-0029/AR (CAAFlog case page) (link to slip op.), on Friday, June 12, 2015. Extensively analyzing the requirements for a protective sweep, CAAF finds that the Government did not even attempt to meet those requirements in this case, and so the court holds that the sweep of the appellant’s on-base home was invalid. CAAF reverses the decision of the Army CCA and remands the case for further proceedings.

Judge Ryan writes for a unanimous court.

The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of two specifications of violating a general regulation by wrongfully possessing drug paraphernalia and unregistered weapons on-post, one specification of wrongful possession of marijuana, and one specification of child endangerment in violation of Articles 92, 112a, and 134. He was sentenced to confinement for four years, total forfeitures, reduction to E-1, and a bad-conduct discharge. In a published decision that I discussed in this post, the Army CCA affirmed the findings and sentence.

The case involves a controlled delivery of a package sent through the U.S. Mail that was suspected (and eventually discovered) to contain marijuana. Government agents obtained verbal authorization to conduct a controlled delivery of the package, but the appellant’s on-base residence was vacant. So the agents left the package by the front door, established surveillance, and waited. Eventually, the appellant’s stepson returned home and brought the package inside, and the agents followed immediately behind, seizing the package and apprehending the boy. Then, despite the immediate seizure of the suspicious package and the fact that the home was empty before the boy arrived, the agents conducted a search of the property, discovering a significant quantity of drug-related materials.

The appellant moved to suppress the evidence seized during the search. The military judge denied the appellant’s motion, ruling in part that the search was a proper protective sweep. Specifically, the judge found that the:

agents could reasonably have believed “an individual or individuals who posed a danger to the agents may have been hiding in the residence” given the quantity of marijuana present and the inference that residents were engaging in drug distribution, as “[i]t is common knowledge that drug trafficking involves violence, including the use of weapons.” The military judge [also] concluded that [the stepson]’s hostile response to the agents’ announced intent to enter the house and conduct a search supported this belief.

Slip op. at 6-7. The appellant was convicted. On review, the CCA affirmed the judge, finding the sweep proper and also applying the doctrine of inevitable discovery. CAAF then granted review of a single issue:

Whether the Army Court erred in finding that the protective sweep was appropriate in total.

Judge Ryan’s opinion for a unanimous CAAF dissects the law of protective sweeps and the agents’ rationale for the search, concluding that while a sweep in a situation like the one in this case is permissible, there was insufficient justification for a sweep in this particular case.

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The new head of DoD Personnel thinks so.  In an article, here (Military Times), yesterday, Brad Carson, the Acting Under Secretary of Defense for Personnel and Readiness, is quoted as questioning up or out for certain military career paths, stating:

The best companies in America today … don’t take people who are engaged in disciplines where there is a steep learning curve, where every year you are getting better, and when you are in your 40s or your 50s and at the very apex of your career, say, ‘I’m sorry, we are forcing you to retire,’ . . . .

If you are an infantryman, that is a hard job and you are probably peaking at your performance in your 20s, or if not your early 30s at the latest, . . . .

It’s different to be 50 years old in the infantry, as opposed to being a computer network exploitation expert who is getting better every single year — or being someone in the [Judge Advocate General] Corps where you are getting better every single year, . . . .

So maybe there is a way we need to think about how to modify the up-or-out promotion system.

That’s refreshing.

CAAF’s daily journal shows the following entry for May 29, 2015:

No. 15-0606/MC. CB, Appellant v. Moira Modzelewski, Captain, U.S. Navy, In her official capacity as Military Judge, and Donald Foster, Lance Corporal U.S. Marine Corps, Real Party in Interest, Appellees.CCA 201500058.  Notice is hereby given that a writ-appeal petition for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals on application for extraordinary relief was filed under Rule 27(b), together with Appellant’s motion for a stay proceedings, on this date. The Judge Advocate General is directed to appoint counsel to represent the Appellee military judge. The answer is due no later than June 8, 2015.

Captain Modzelewski is a military judge who previously served as Chief Judge of the Navy-Marine Corps Court of Criminal Appeals.

After noting this entry early last week, I submitted a FOIA request to the Navy seeking copies of the pleadings in the case. I have not received a response to that FOIA request. However, I have received a copy of the writ-appeal petition filed at CAAF (without the sealed appendix). The petition is available here.

CB is an alleged victim of sexual assault. Her alleged assailant is a junior enlisted Marine. The petition challenges the military judge’s ruling on M.R.E. 412 issues. Specifically:

Ms. CB respectfully requests that this Court set aside the Trial Court’s rulings made under M.R.E. 4122 and M.R.E. 608(c), and direct the Trial Court to exclude any evidence of previous or subsequent sexual assault incidents unrelated to the present case from being introduced at trial. When the Military Judge ordered Ms. CB to reveal her private Restricted Reports and other reports of sexual assault and allowed these to be utilized as extrinsic impeachment evidence at trial, this violated the M.R.E., constitutional due process, and the right to be treated with fairness and respect for the dignity and privacy of the victim, thus requiring the Trial Court’s ruling be overruled.

Pet. at 4. The petition also notes the following significant finding of fact by the military judge:

At this Motion Session, the Military Judge stated that there was “significant indicia” of falsity regarding Ms. CB’s prior sexual assault incidents.

Pet. at 13.

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CAAF’s daily journal shows the following entry from Tuesday, June 9:

No. 15-0387/CG. U.S. v. Christopher S. Cooley. CCA 1389.  On consideration of Appellant’s motion for an expedited review, it is ordered that said motion is hereby denied.*

* BAKER, Chief Judge (dissenting):

Given the nature of the issue presented, I would grant oral argument immediately.

Cooley is a case involving application of the speedy trial rule in Article 10, UCMJ. Article 10 was our #10 military justice story of 2013. “CAAF blotted the ink from Article 10’s obituary [in 2013],” I wrote, and “the possibility that Article 10 will rise from the dead [in 2014] is slim.”

But in the final days of 2014 the Coast Guard CCA issued an opinion in United States v. Cooley, No. 1389 (C. G. Ct. Crim. App. Dec. 24, 2014), dismissing numerous charges for violation of Cooley’s right to a speedy trial under Article 10. Chief Judge McClelland wrote for a three-judge panel of the court. I discussed the CCA’s opinion in a post titled: The Coast Guard CCA raises Article 10 from the dead.

At trial in late 2013, Cooley entered conditional guilty pleas to numerous offenses, including attempting a lewd act with a child. The adjudged sentence included confinement for seven years, but in accordance with a pretrial agreement the convening authority suspended all confinement in excess of fifty months. A year later the CCA dismissed all of the charges (some with prejudice, others without). But the Judge Advocate General of the Coast Guard certified the case to CAAF on February 23, 2015 (discussed here), with two issues focusing on the question of prejudice for the speedy trial violation. CAAF then granted review of a third issue addressing the substantial information rule (discussed here).

CAAF’s caselaw holds that decisions of the service courts are not self-executing and that they remain “inchoate” during the time for certification by a judge advocate general. United States v. Miller, 47 M.J. 352, 361 (C.A.A.F. 1997). However,

After considering the matter, if the Judge Advocate General decides to certify a case to this Court, an accused’s interest in the favorable decision of the court below (even if inchoate) requires either that the accused be released in accordance with that decision or a hearing on continued confinement be conducted under RCM 305.

Id. at 362. The CCA’s decision should result in the release of Cooley from post-trial confinement. However, Chief Judge Baker’s dissent implies that he is being held in pretrial confinement, based at least in part on the offenses that the CCA ordered dismissed with prejudice.

CAAF decided the Navy case of United States v. Ward, __ M.J. __, No. 15-0059/NA (CAAFlog case page) (link to slip op.), on Thursday, June 11, 2015. The court holds that even though the convening authority violated Article 25 when he improperly excluded members on the basis of rank, and the Government committed a discovery violation by failing to disclose the exclusionary selection criteria to the defense (both violations being the law of the case as they were found by the CCA and not appealed to CAAF), the appellant was not prejudiced because the panel for his court-martial was fair in fact and in appearance. Finding the error harmless, CAAF affirms the decision of the Navy-Marine Corps CCA and the appellant’s convictions.

Judge Erdmann writes for a unanimous court.

The appellant was an E-2 who was convicted, contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of fleeing apprehension, rape, and communicating a threat, in violation of Articles 95, 120, and 134. He was sentenced to confinement for 933 days and a dishonorable discharge.

Prior to the appellant’s court-martial, the convening authority (Commander, Naval Air Force Atlantic (COMNAVAIRLANT)) issued an instruction that required subordinate units to nominate personnel to serve on courts-martial, specifically requiring nominations in pay-grades E-7 through O-5. No members detailed to the court-martial were outside the range of E-7 through O-5. Rather, the panel “was comprised of one 0-4, one E-8, and 6 E-7s.” Slip op. at 5.

Congress established the criteria for member selection in Article 25 (10 U.S.C. § 825). Rank is not among those criteria. However, the appellant did not object to the composition of the panel at trial. Rather, after trial, when his defense counsel first learned of the convening authority’s exclusionary instruction, the appellant sought relief from the convening authority. The convening authority denied relief. On appeal, the CCA concluded that the convening authority’s actions did impermissibly exclude members based on their rank, but that this error was harmless. CAAF then granted review of Appellant’s claim that the CCA erred in finding the error harmless, with the following 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?

Notably, the Government did not certify the CCA’s underlying finding of error, and so “the sole issue before [CAAF] is whether the violation of Article 25, UCMJ, as held by the CCA, prejudiced Ward.” Slip op. at 6.

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The Joint Service Committee on Military Justice (JSC) has a new website: http://jsc.defense.gov/

CAAF decided the Army case of United States v. Carter, __ M.J. __, No. 14-0792/AR (CAAFlog case page) (link to slip op.), on Wednesday, June 10, 2015. Finding that there is no per se rule against an accused presenting evidence of unlawful pretrial punishment as mitigation evidence during the sentencing phase of a court-martial – even after the accused receives judicial credit for the same unlawful punishment – CAAF nevertheless holds that the military judge did not abuse her discretion when she prevented the appellant from introducing such evidence to the members in this case.

Chief Judge Baker writes for the court, joined by all but Judge Stucky who writes separately, concurring in the result.

The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of one specification of indecent act in violation of Article 120(k) (2006). He was sentenced to confinement for six months, reduction to E-1, and a bad-conduct discharge. The Army CCA summarily affirmed.

Article 13, UCMJ, prohibits the imposition of punishment before trial. At trial, the appellant and the Government agreed that the appellant should receive 25 days of confinement credit for pretrial restriction that constituted unlawful pretrial punishment in violation of Article 13 (the appellant initially sought 45 days of credit). Then, during the sentencing phase of the court-martial, the appellant sought to call a witness “to testify about the pretrial violations” as a matter in mitigation possibly justifying a lesser adjudged sentence. Slip op. at 4. The trial counsel objected on relevance grounds and the military judge sustained the objection. The judge “specifically based her decision on existing case law discussing [Article 15] nonjudicial punishment which, according to the military judge, is analogous to [Article 13] and should be interpreted to mean that defense counsel ‘has an option as to how to present that evidence; one of four ways.'” Slip op. at 4-5.

CAAF granted review to determine whether that ruling was error, with the following issue:

Whether the military judge abused her discretion by preventing defense counsel from presenting facts of appellant’s unlawful pretrial punishment as mitigation evidence at sentencing.

Chief Judge Baker finds that Article 13 “is distinct from NJP credit and should not be treated in the same way.” Slip op. at 9. He further finds that allowing an accused to receive credit from a judge for a violation of Article 13 while also using the underlying facts as evidence in mitigation “does not provide defense counsel two bites at the apple.” Slip op. at 12 (emphasis added). However, he comes to the puzzling conclusion that the military judge in this case did not abuse her discretion when she held the opposite: that allowing the defense to call the witness “was giving defense counsel ‘two bites at the apple.'” Slip op. at 12-13.

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Putting the entire term on one page made me realize the length of CAAF’s deliberations in United States v. Katso, No. 14-5008/AF (CAAFlog case page) (argued Oct. 7, 2014): 245 days and counting.

Last term I thought it notable that CAAF took 183 days from argument to decision in United States v. Elespuru, 73 M.J. 326 (C.A.A.F. Jul. 15, 2014) (CAAFlog case page). Elespuru had the longest time to decision of last term. The time to decision in Katso is already two months longer.

In the 2012 term (two terms ago), the longest time to decision was in United States v. Hutchins, 72 M.J. 294 (C.A.A.F. 2013) (CAAFlog case page), at 225 days. Katso beats that too.

For the current term, after Katso, the next oldest case still pending a decision by CAAF is the still-undecided capital case of United States v. Akbar, No. 13-7001/AR (CAAFlog case page) (argued Nov. 18, 2014), at 203 days. A decided case takes third place: United States v. Piolunek, 74 M.J. 107 (C.A.A.F. Mar. 26, 2015) (CAAFlog case page), at 169 days.

In my argument preview in Katso, I concluded that if CAAF is forced to decide the case on confrontation grounds then its decision will be a significant one. Significant or not, it is certainly suspenseful.

CAAF’s daily journal for Friday has the following entry:

No. 15-0616/AR. Robert B. Bergdahl, Appellant v. Mark A. Mi[l]ley, General U.S. Army, in his official capacity as Commanding General, U.S. Armed Forces Command and General Court-Martial Convening Authority, and United States, Appellees. CCA 20150383.  Notice is hereby given that a writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on application for extraordinary relief in the nature of a writ of mandamus was filed under Rule 27(b) on this date.

A copy of the petition is available here. Sergeant Bergdahl seeks to disqualify General Milley as the convening authority under the theory that he is an accuser in the case.

“An accuser is an individual: (1) ‘who signs and swears to charges'; (2) ‘who directs that charges nominally be signed and sworn to by another [type two accuser]'; or (3) ‘who has an interest other than an official interest in the prosecution of the accused [type three accuser].'” United States v. Ashby, 68 M.J. 108, 129 (C.A.A.F. 2009) (quoting Article 1(9), UCMJ) (marks in original). “An accuser may not convene a general or special court-martial, nor may he refer charges to a court-martial.” Id.

Bergdahl asserts that General Milley is a type three accuser (that he has an interest other than an official interest in the prosecution of the accused) because General Milley was recently nominated for the position of Chief of Staff of the Army (the most senior officer post in the Army). The writ-appeal petition asserts that:

General Milley’s service as GCMCA for appellant’s case while his nomination is awaiting SASC consideration and a vote by the full Senate, and in light of the extraordinary interest that body has expressed in matters relating to appellant, deprives him of the right to discretionary GCMCA decision-making that is (and appears to be) based solely on the facts and circumstances of the case, without regard to the personal interest of that official in being confirmed for higher office.

Pet. at 8 (internal citation omitted). The petition concludes by asserting that “A new GCMCA must be designated who does not have a SASC confirmation hanging over his or her head. Failing to grant the relief requested at this time will not foster public confidence in the administration of justice.” Pet. at 14.

I think the greater danger to public confidence lies in the possibility that CAAF will grant the requested relief. The petition identifies no actions by General Milley that make him an accuser; it is his nomination alone that is seen as disqualifying. Were CAAF to agree that General Milley’s mere nomination to the senior position in the Army gives him an interest other than an official interest in the prosecution of Sergeant Bergdahl, it’s hard to identify a limiting principle that would prevent a similar argument from disqualifying a wide range of convening authorities. Moreover, I think such a holding would imply that senior officers are incapable of implementing the UCMJ fairly and impartially – a disturbing proposition.

CAAF decided the Navy case of United States v. Simmermacher, 74 M.J. 196, No. 14-0744/NA (CAAFlog case page) (link to slip op.), on Monday, June 8, 2015. Holding that the appellant’s urine sample was of such central importance that it was essential to a fair trial, that there was no adequate substitute for the sample after it was destroyed by the Government, and that the appellant was blameless in its destruction, CAAF applies R.C.M. 703(f)(2) and reverses the appellant’s conviction.

Judge Erdmann writes for a unanimous court.

The appellant was convicted contrary to her pleas of not guilty, by a general court-martial composed of members with enlisted representation, of making a false official statement and wrongful use of a controlled substance, in violation of Articles 107 and 112a, UCMJ. She was sentenced to reduction to E-3 and a bad-conduct discharge.

The appellant’s positive urinalysis was the result of a routine random testing that occurred while she was under investigation for allegations of child abuse (charges that were later severed from the 107 and 112a offenses). But despite that ongoing investigation, the Government did not preserve the urine sample for possible retesting beyond the standard one-year retention period for a positive sample. Instead, the sample was destroyed twelve days before the appellant was charged with the drug offense. The military judge then denied a defense motion to suppress the results of the urinalysis, instead giving the members an instruction that they may (but are not required to) infer that the evidence would have been adverse to the prosecution. Appellant was convicted and the NMCCA affirmed. CAAF then granted review of a single issue:

When the Government destroys evidence essential to a fair trial, the Rules for Courts-Martial require the military judge to abate the proceedings. Here, the Government negligently destroyed the sole piece of evidence that provided the basis for HM3 Simmermacher’s conviction prior to both the referral of charges and the assignment of defense counsel. Should the military judge have abated the proceedings?

Drawing a bright line between the constitutional due process standard for lost or destroyed evidence and the provisions of R.C.M. 703(f)(2), Judge Erdmann explains that where the three prerequisites under R.C.M. 703(f)(2) are satisfied, “if a continuance or other relief cannot produce the missing evidence, [then] the remaining remedy for a violation of R.C.M. 703(f)(2) is abatement of the proceedings.” Slip op. at 14. Because the military judge failed to abate the proceedings in this case, CAAF reverses the finding of guilty and dismisses the charge of violation of Article 112a.

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Last term, in United States v. MacDonald, 73 M.J. 426 (C.A.A.F. Aug. 27, 2014) (CAAFlog case page) CAAF unanimously reversed a premeditated murder conviction after concluding that the military judge’s failure to give an involuntary intoxication instruction regarding the appellant’s use of the smoking-cessation drug Chantix was error that was not harmless.

In a McClatchy report available here, it appears that the parties have reached a pretrial agreement in the case:

The promising young soldier who killed a Fresno, Calif., native in a Fort Benning, Ga., barracks could eventually regain his freedom, under a new plea agreement.

In a case that ravaged several families, while it raised provocative questions about the smoking cessation drug Chantix, Army Pfc. George D.B. MacDonald has agreed to plead guilty to the unpremeditated murder of Pvt. Rick Bulmer, according to relatives and other informed individuals who declined to be identified in order to talk about the case.

 

Associated Press (via the Washington Post) story here. All of our prior coverage here.

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

This week at CAAF: CAAF has completed its oral argument calendar for the September 2014 term.

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

Monday, June 8, 2015, at 2 p.m.: United States v. Burnside, No. 20130193

Issues:
I. [WHETHER] THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE DENIED THE DEFENSE MOTION TO SUPPRESS APPELLANT’S SWORN STATEMENT TAKEN IN VIOLATION OF THE FIFTH AMENDMENT AND ARTICLE 31, [UCMJ,] BECAUSE SPECIAL AGENTS [PS] AND [RW] FAILED TO SCRUPULOUSLY HONOR APPELLANT’S INVOCATION OF THE RIGHT TO REMAIN SILENT.
II. [WHETHER] THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE ADMITTED APPELLANT’S INVOLUNTARY ORAL AND WRITTEN CONFESSIONS TO SPECIAL AGENT [PS] AND SPECIAL AGENT [RW] BECAUSE THEY WERE THE PRODUCT OF COERCION, UNLAWFUL INFLUENCE, AND UNLAWFUL INDUCEMENT

Thursday, June 11, 2015, at 2 p.m.: United States v. Safiedeen, No. 20121124

Issue: WHETHER CAPTAIN SAFIEDEEN RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL RESULTING IN MULTIPLE PREJUDICIAL ERRORS.

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, sitting en banc, will hear oral argument in one case this week, on Thursday, June 11, 2015, at 10 a.m.:

United States v. Spurling

Case summary: A special court-martial, consisting of members with enlisted representation, convicted the appellant, contrary to his pleas, of one specification of making a false official statement, in violation of Article 107, Uniform Code of Military Justice. The members sentenced the appellant to reduction to pay grade E-1 and a bad-conduct discharge. The convening authority approved the sentence as adjudged but, as a matter of clemency, suspended the bad-conduct discharge for a period of twelve months. The issues to be argued before this Court are as follows:

Issues:
I. WHEN A CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL IS PREMISED ON COUNSEL’S FAILURE TO MAKE A MOTION TO SUPPRESS EVIDENCE, AN APPELLANT MUST SHOW THAT THERE IS A REASONABLE PROBABILITY THAT SUCH A MOTION WOULD HAVE BEEN MERITORIOUS. UNITED STATES V. JAMESON, 65 M.J. 160, 163-64 (C.A.A.F. 2007). HOW SHOULD THIS COURT DEFINE “REASONABLE PROBABILITY?”
II. DID THE APPELLANT SATISFY THAT STANDARD IN THIS CASE?

This is the NMCCA’s second review of this case. The court previously issued an en banc decision denying appellant relief (discussed here), but CAAF summarily reversed and remanded (discussed here).

I’ve completed a single page summary of all of the cases argued at CAAF in the current term, complete with links to our individual case pages. You can access it by clicking on the September 2014 Cases link in the top navigation bar.

Link Image

Prior terms are a future project.