CAAF is considering the impact of a variance in the Army case of United States v. Treat, No. 14-0280/AR (CAAFlog case page). A variance is when the offense proven at trial does not conform with the offense alleged in the charge. It is an issue when findings are made by exceptions and substitutions (exceptions are when words are deleted from the language of the specification; substitutions are when words are added).

A variance is material when, “for instance, [it] substantially changes the nature of the offense, increases the seriousness of the offense, or increases the punishment of the offense.” United States v. Marshall, 67 M.J. 418, 420 (C.A.A.F. 2009) (marks and citations ommited). A material variance is fatal (prejudicial) when it “(1) [puts an accused] at risk of another prosecution for the same conduct, (2) mislead[s] him to the extent that he has been unable adequately to prepare for trial, or (3) den[ies] him the opportunity to defend against the charge.” Id. (marks and citation omitted).

In Treat, the Army CCA found no material variance, but it also concluded that even if the variance was material then it was not fatal because it did not prejudice the appellant (due to the nature of the defense he presented at trial). I discussed the CCA’s published opinion in this post, where I disagreed with its finding of no material variance, but I agreed with its conclusion on the issue of prejudice. CAAF’s review will determine which (if either) interpretation is correct.

Now the Air Force CCA joins the variance debate with a published opinion in United States v. Mandy, __ M.J. __, No. 38227 (A.F.Ct.Crim.App. Apr. 10. 2014) (link to slip op.). The appellant – a captain – was convicted of numerous offenses including malingering in that he:

[D]id, at or near Franklin, Tennessee, on or about 21 March 2012, for the purpose of avoiding his duty at Eglin Air Force Base, intentionally injure himself by lacerating his left knee.

Slip op. at 3. But the members made findings that excepted the words “intentionally injured himself by lacerating his left knee,” and substituted the words “feign disability by exaggerating the extent of the injury to his left knee.” The Defense did not object to this change (though it did object to a change the members made to a different charge), and the AFCCA considered this change under the plain error test. The court finds that it is both material and fatal (prejudicial), and dismisses the finding.

The CCA notes that “the statutory language of Article 115, UCMJ, provides for two distinct forms of malingering: feigning illness or injury, or intentionally inflicting self-injury.” Slip op. at 6. Because only the intentionally-inflicting theory was before the members, “the appellant’s conviction of malingering by feigning disability was a conviction of a crime different from the specification that he was expected to defend himself against before the members.” Slip op. at 6. Somewhat ironically, the Prosecution actually withdrew language that alleged the feigning-disability theory before trial. Because of this withdrawal, the CCA concludes that “the appellant was no longer charged with this different theory and was no longer on notice that he needed to defend against it until the military judge’s instructions.” Slip op. at 8.

The CCA then reasses the sentence but provides no relief (the appellant was also convicted of unauthorized absence, two specifications of willfully disobeying a superior commissioned officer, and one specification of dereliction of duty, and he was sentenced to a dismissal and confinement for two years; the convening authority then reduced the confinement to one year).

CAAF’s docket for Friday shows the following certification:

No. 14-5005/AF. U.S., Appellant v. Lieutenant Colonel Todd E. MCDOWELL, Appellee and Senior Airman Christopher A. DEMARIO, Real Party In Interest. CCA 2013-28. 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 this date on the following issues:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT DENIED THE UNITED STATES’ PETITION FOR EXTRAORDINARY RELIEF AND FOUND THE MILITARY JUDGE’S RULINGS DID NOT CONSTITUTE A JUDICIAL USURPATION OF POWER AND WERE NOT CHARACTERISTIC OF AN ERRONEOUS PRACTICE WHICH IS LIKELY TO RECUR.

WHETHER THIS HONORABLE COURT SHOULD ORDER THE MILITARY JUDGE TO REVERSE HIS DECISIONS TO ORDER AN ORAL DEPOSITION OF B.B. AND TO RE-OPEN THE ARTICLE 32 PRETRIAL INVESTIGATION.

The military judge granted a Defense motion to depose the alleged victim after the victim did not complete her testimony at the Article 32 pretrial investigation (she walked out after two hours of cross examination, having been interviewed by defense counsel for three hours the day before). The Government sought a writ of mandamus ordering the military judge to reverse himself. The AFCCA denied the Government’s petition in this order.

I discussed the AFCCA’s ruling in this post, where I wrote:

I can’t help but wonder why the Government wants to stop this deposition. What could the Government possibly have to lose? While the defense counsel’s five hours of interview and examination of the alleged victim certainly seems like it would be enough, there’s no indication that the defense was abusing the process just to harass the victim (besides the ethical issues that would raise, I’d suspect the 32 IO would have put a stop to any of that). And the deposition officer (something I’ve been before) will exercise reasonable control over the proceeding.

I’m reminded of something I referenced in my argument preview of United States v. Solomon, No. 13-0025/MC, 72 M.J. 176 (C.A.A.F. 2013) (CAAFlog case page):

In the alcove outside the Attorney General’s Office here in Washington, an inscription that rings the space reads: “The United States wins its point whenever justice is done its citizens in the courts.”

Deputy Attorney General David W. Ogden, Memorandum for Department Prosecutors (January 4, 2010).

So true.

This case is the ninth certification from the Air Force on CAAF’s docket this term (I listed the other eight at the bottom of this post).

It’s beginning to look like the Air Force JAG thinks that justice is done only when the Prosecution gets what it wants.

Courthouse news is reporting that MG Buchanan approved Manning’s findings and sentence, and ordered it executed; and hopefully following the Fulton gouge, did not order the punitive discharge executed.

On, on, on to ACCA (where AMJ Lind will likely recuse herself :-)).

The recent unpublished opinion in the Army case of United States v. Lovell, No. 2011006 (A.Ct.Crim.App. Mar. 31, 2014) (link to slip op.) is a fascinating read.

Specialist Lovell pleaded guilty at a special court-martial (without the benefit of a pretrial agreement) to desertion with intent to shirk important service, unauthorized absence, and missing movement by design, in violation of Articles 85, 86, and 87. He then elected to be sentenced by a panel of officer members, and was adjudged a punishment of confinement for 6 months, reduction to E-1 and a bad-conduct discharge. The convening authority approved the sentence as adjudged.

The facts were that:

Appellant deployed with his unit to Iraq from March 2004 through March 2005. When he returned, appellant found his wife had developed an illness which caused seizures and resulted in her inability to drive a car. Appellant asserted that if he deployed again, he feared his wife would be unable to care for their two children, a five-year-old and an eighteen-month-old. Unable to obtain a hardship discharge before his next scheduled deployment, appellant chose to absent himself without leave from his unit on 18 September 2006, thereby missing movement on 1 October 2006, and then remained in desertion until 13 July 2011.

Slip op. at 2. It’s reasonable to feel at least a little sympathy for the situation the appellant faced in 2006. However, the appellant squandered that sympathy when he deserted for the following five years. For the Government, this case was as easy as it gets.

But during voir dire of the panel that determined the sentence, one member (a colonel) said, “I filled out my questionnaire and there’s a matter on there that the court may want to consider and I think it may be grounds for challenge.” Slip op. at 2. The matter was that the Colonel obtained conscientious objector status in 1992. The member was not asked any further questions.

Rather than simply ignore the Colonel’s conscientious objector status (and focus instead on the appellant’s half-decade of desertion) the Government counsel challenged the Colonel for cause, stating:

[H]e’s a conscientious objector. I believe that will apparently skew his — his view of an absence-type offense, especially here where the absence involves what is a to-shirk-hazardous — or shirk important service in Iraq and missing movement and that movement we will explain was to Iraq, that he will unfairly mitigate that — that offense based on his belief he brought into the courtroom today.

Slip op. at 3. The Defense objected but the military judge granted the challenge. That is, “the military judge, without explanation, granted the government’s challenge.” Slip op. at 4 (emphasis added).

Read more »

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 28, 2014.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on May 8, 2014.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on April 23, 2014.

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’s website shows no scheduled oral arguments.

Audio of Wednesday’s oral argument in United States v. Jones, No. 14-0071/AR (CAAFlog case page) is available here.

Update: I haven’t been able to download the audio (it looks like CAAF’s server is timing out). If anyone is able to download it, please send it to me at zack@caaflog.com and I’ll mirror it on our server.

Second update: Audio available here.

Earlier this term, CAAF decided the Air Force case of United States v. Wicks, 73 M.J. 93 (C.A.A.F. 2014) (CAAFlog case page), reversing the Air Force CCA’s decision on an interlocutory appeal of a military judge’s pretrial ruling that suppressed the results of a search of Appellant’s mobile telephone.

The issue in Wicks was whether the Government met its burden to show that a law enforcement search subsequent to a private search did not exceed the scope of the private search. But now the AFCCA considers another trial-stage suppression issue involving a similar question, in United States v. Buford, No. 2013-26 (A.F.Cr.Crim.App. Apr. 4, 2014) (link to order).

In Buford, the accused’s wife “found a ‘fake’ Facebook account that was associated with [his] e-mail address. [She] identified the page as a ‘fake’ account because the name and photo associated with the account were not of the [accused], but the e-mail address belonged to him. She became curious and logged onto [his] e-mail account.” Order at 2. Eventually, she shared the information with Airman First Class  (A1C) “RM,” a male friend of hers who was also an active duty Security Forces member. A1C RM then searched the Facebook account and an email account, preserving screenshots of sexually explicit matters. A1C RM then encouraged the accused’s wife to make a report to law enforcement, and during subsequent searches “A1C RM acted as a ‘conduit’ between [the wife] and the AFOSI agents because ‘he was a cop and he could relate to them.’” Order at 3. Eventually, various electronic media was searched and seized, and the accused was charged with wrongfully committing indecent conduct and wrongfully receiving and possessing child pornography in violation of Articles 120 and 134, UCMJ.

The Defense moved to suppress a broad range of evidence and derivative evidence, and the military judge granted the motion after concluding that A1C RM was acting in an official capacity when he conducted the initial search of the Facebook and email accounts. The CCA affirms this ruling in part.

Notably, the judge and the CCA make a critical distinction between the electronic devices themselves and the online accounts accessed by the devices:

We concur with the military judge’s determination on the issue of consent. AB [the wife] gave consent to the search of the Dell laptop and had both actual and apparent authority over that laptop. Nevertheless, we also agree that consent to search the Dell laptop did not extend to the Facebook and email accounts of the appellee. Consent to search an electronic device does not automatically extend to consent to search all electronic “papers” not contained on the device but accessed through the device. Here, A1C RM had clear indications the “fake” Facebook account and the e-mail account belonged to the appellee. The e-mail account was password protected. The evidence is that A1C RM should have known the e-mail account was not under the authority of AB. Although AB had knowledge of the password, this does not automatically result in a conclusion that she had actual or apparent authority over an otherwise private separate account maintained by her husband. In an Article 62, UCMJ, appeal for a motion to suppress, we review the evidence in the light most favorable to the prevailing party at trial. A third-party’s control over property or effects is a question of fact. We concur with the military judge’s ruling that the Government failed to meet its burden of establishing that the consent exception applied to the search of the Facebook and e-mail accounts.

Order at 6 (citations omitted) (emphasis added).

Read more »

CAAF decided the Air Force case of United States v. Talkington, No. 13-0601/AF, 73 M.J. 212 (CAAFlog case page) (link to slip op.), on Monday, April 7, 2014, finding that “sex offender registration is a collateral consequence of the conviction alone, not the sentence,” and that “while an accused may raise a collateral consequence in an unsworn statement . . . the military judge may instruct the members essentially to disregard the collateral consequence in arriving at an appropriate sentence for an accused.” Slip op. at 2. CAAF affirms the sentence and the decision of the Air Force CCA.

Judge Ryan writes for the court, joined by Judges Erdmann and Stucky. Chief Judge Baker concurs in the result, joined by Judge Ohlson.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of three attempts in violation of Article 80, UCMJ: two specifications of attempted aggravated sexual assault and one specification of attempted abusive sexual contact. He was sentenced to reduction to E-1, total forfeitures, confinement for eight months, and a bad-conduct discharge.

Appellant made an unsworn statement during the sentencing phase of the court-martial in which he stated, “I will have to register as a sex offender for life . . . I am not very sure what sort of work I can find.” Slip op. at 3. The Government then asked the military judge to instruct the members to disregard the possibility of sex offender registration when determining a sentence. Over Defense objection, the judge gave a lengthy instruction to the members that included:

However, as a general evidentiary matter, evidence regarding possible registration as a sex offender or the potential of an administrative discharge, and the consequences thereof, would be characterized as a collateral consequences [sic], and thus inadmissible outside of the context of an unsworn statement. . . . Possible collateral consequences of the sentence, beyond those upon which you are instructed, should not be a part of your deliberations other than as I have earlier discussed.

As to sex offender registration requirements . . . [e]ven if such requirements were predictable, whether or not the accused will be or should be registered as a sex offender and whether he will be or should be administratively discharged is not a matter before you. Rather, determining an appropriate sentence for this accused, in accordance with my instructions, is your charge. In short, use of this limited information is fraught with problems.

Slip op. at 4. The Air Force CCA affirmed the convictions without considering the propriety of this instruction, and CAAF granted review of one issue:

Whether the military judge erred by instructing the members that consideration of sex offender registration is “not a matter before them” and “fraught with problems.”

Judge Ryan’s opinion of the court can be summarized in one powerful sentence:

The collateral consequences of a court-martial do not constitute R.C.M. 1001 material, and while they may be referenced in an unsworn statement, they should not be considered for sentencing.

Slip op. at 8 (citation omitted). This is, to say the least, a dramatic victory for the Government.

Read more »

Georgetown Law School.

20-21 May 2014.

CAAF Judicial Conference.

More to follow.

Here is WaPo coverage fo the verdict today. The jury now deliberates on the death penalty.

In United States v. Jackson, No. 38244 (A.F.Ct.Crim.App. Mar. 19, 2014) (link to unpub. op.), the Air Force CCA affirms the admission of propensity evidence of the appellant’s commission of a prior sexual offense under Military Rule of Evidence 413. The case involved allegations that the appellant sexually assaulted two sleeping women (each of whom awoke to the assault). MRE 413 permits the admission of evidence of other sexual assaults in such a case, and the following evidence about an encounter with a third woman (for which the appellant was not charged) was admitted:

Ms. SG testified that she and her husband, who was active duty at the time, were married in March 2011. In June 2011, she and her husband were experiencing marital difficulties, so her husband moved in with the appellant. Ms. SG’s husband worked with the appellant in Security Forces, and she also worked for the squadron as a civilian armed security officer.

According to Ms. SG, on 15 June 2011, at approximately 0030, she received a call from the appellant who described to her a dream he had the night before. He said that in the dream he came over to her house, snuck in through her window, and climbed into bed with her. He then said, “You can imagine what happened after that,” implying that they engaged in sexual activity. Ms. SG did not take the appellant seriously and replied, “Yeah, whatever,” and quickly ended the conversation.

Later that night, after Ms. SG went to bed, she was awoken by what she thought was her husband crawling into bed with her. She thought it was her husband because he had contacted her earlier, indicating he was going to sleep at her house that night. While Ms. SG was lying on her stomach, the person wrapped his arms around her entire body as if trying to become intimate with her. When she rolled over, she realized it was not her husband, but in the darkness she did not know who it was. She grabbed the person’s throat and started choking him. She yelled, “What the hell are you doing in my house? Get the hell out of my house!” The person replied, “But you feel so good,” and “Just pretend that I’m your husband.” After hearing his voice, Ms. SG realized it was the appellant. She then more firmly told him to leave. The appellant left the bedroom and started to walk down the hallway. However, he returned to the room, leaned over the bed, and whispered to her that he had forgotten his shoes. He then finally left her house.

Ms. SG testified that during this event she was not certain if the appellant touched her breasts or genitals. As she was lying on her stomach, he did not touch anything on her front side; he only touched her back side. Ms. SG claimed she and the appellant had never engaged in any sexual relations, she was not interested in him romantically, and she had not invited the appellant to her home on 15 June 2011.

In addition to Ms. SG’s testimony, the Government submitted Facebook conversations between Ms. SG and the appellant where he discussed his desire to have sex with her.

Slip op. at 7-8. Appellant

The issue before the CCA was whether the military judge erred in admitting this evidence. The appellant asserted that “the alleged touching of Ms. SG does not constitute a sexual act or contact, as defined in Mil. R. Evid. 413. Further, the appellant claims there was insufficient evidence of an attempted sexual contact or act without Ms. SG’s consent.” Slip op. at 9.

But what makes this case really interesting is the two ways the military judge found the evidence admissible.

Read more »

I discussed the seven instructional error cases on CAAF’s docket this term in this post from last month. With a new grant from last Thursday, the total is now up to eight:

No. 14-0048/AR.  U.S. v. Jason C. WAGNER.  CCA 20111064.  Review granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE FAILED TO INSTRUCT THE PANEL MEMBERS THAT WRONGFUL SEXUAL CONTACT AND ASSAULT CONSUMMATED BY BATTERY ARE LESSER-INCLUDED OFFENSES OF AGGRAVATED SEXUAL ASSAULT.

No briefs will be filed under Rule 25.

According to this public notice, the next meeting of the Response Systems to Adult Sexual Assault Crimes Panel will occur on May 5-6, 2014, from 8:30 a.m. to 5:00 p.m. each day, at The George Washington University Law School Faculty Conference Center, 5th floor, 716 20th Street NW., Washington, DC 20052.

The agenda is:

May 5, 2014
• 8:30 a.m.–8:35 a.m. Comments from the Panel Chair
• 8:35 a.m.–9:30 a.m. DoD SAPRO Update Major General Jeffrey J. Snow Director, DoD SAPRO
• 9:30 a.m.–12:30 p.m. Subcommittee Report to Panel and Panel Deliberations
• 12:30 p.m.–1:00 p.m. Lunch
• 1:00 p.m.–4:30 p.m. Subcommittee Report to Panel and Panel Deliberations
• 4:30 p.m.–5:00 p.m. Public Comment

May 6, 2014
• 8:30 a.m.–12:00 p.m. Subcommittee Report to Panel and Panel Deliberations
• 12:00 p.m.–12:30 p.m. Lunch
• 12:30 p.m.–4:30 p.m. Panel Deliberations
• 4:30 p.m.–5:00 p.m. Public Comment*

* Public comment may occur earlier in the day if Panel deliberations conclude prior to 4:30 p.m. It is anticipated that the subcommittees will report to the Panel in the following order: Comparative Systems Subcommittee; Victim Services Subcommittee; Role of the Commander Subcommittee. However, the order of the subcommittee reports may change.

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 one case this week, on Wednesday, April 9, 2014. This will be a project outreach oral argument held at Florida International University College of Law in Miami, Florida.

United States v. Jones, No. 14-0071/AR (CAAFlog case page)

Issue: Whether the military judge abused his discretion when he denied the defense’s motion to suppress appellant’s statement to the military police.

Case Links:
• ACCA opinion (summary affirmation)
• Appellant’s brief
• Appelllee’s (Government) brief
• Amicus brief
• Blog post: Argument preview

This week at the ACCA: The next scheduled oral argument at the Army CCA is on May 28, 2014.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on April 23, 2014.

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 Thursday, April 10, 2014:

United States v. Evans 

Case summary: A panel of members sitting as a general court-martial, convicted appellant, contrary to his plea, of one specification of possession of child pornography in violation of Article 134, UCMJ, 10 U.S.C. § 934 (2012). The members sentenced appellant to eighteen months confinement and a dishonorable discharge. The Convening Authority approved the sentence as adjudged and, except for the dishonorable discharge, ordered it executed.

Issues:
I. The constitution protects an accused’s right to a speedy trial. Here, Petty Officer Evans suffered prejudice from pretrial delay due to administrative and manpower constraints. Did this violate his constitutional right to a speedy trial?
II. After withdrawing a charge from a court-martial, a convening authority may not refer the withdrawn charge to another court-martial unless the withdrawal was for a proper reason. Here, though the withdrawal was solely due to prosecutorial ineptitude, the military judge allowed the convening authority re-refer. Did this error prejudice Petty Officer Evans?

In this post from February I discussed United States v. Seton, Misc. Dkt. No. 2013-27 (A.F.Ct.Crim.App. Feb. 24. 2014) (link to order), where the military judge dismissed the charge with prejudice as a remedy for the Government’s failure to preserve the video recording from a military dormitory’s surveillance system. The AFCCA affirmed the judge, finding that the video is of central importance in this case where Appellee is charged with one specification of sexual assault in violation of Article 120 (2012), “alleging the appellee caused bodily harm to Airman First Class (A1C) BB through nonconsensual vaginal intercourse.” Order at 1. The CCA concluded:

The military judge reasonably determined A1C BB’s credibility was a central issue in the case and the video may have supplied a basis to impeach A1C BB’s earlier statements about the incident. In short, only two people know for certain what happened in the appellee’s dormitory room; no other direct evidence is available concerning what transpired in that room. Video that apparently would have directly impeached the credibility of one of those two people is reasonably categorized as “of such central importance to an issue that is essential to a fair trial.” R.C.M. 703(f)(2).

Order at 6. Additionally, the CCA determined that testimony is no substitute for the video. Quoting the military judge’s ruling, the CCA noted that, “The old adage, ‘A picture is worth a thousand words,’ comes to mind at this point.” Order at 7.

The JAG had less than a thousand words in response:

No. 14-6008/AF. U.S., Appellant v. Steven E. SETON, Appellee. CCA 2013-27. 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 this date on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY DISMISSING WITH PREJUDICE THE CHARGE AND SPECIFICATION BASED ON ALLEGED GOVERNMENTAL VIOLATIONS OF ARTICLE 46, UCMJ, R.C.M. 701, AND R.C.M. 703.