Yesterday, on August 21, 2014, CAAF issued its opinions in United States v. McPherson, No. 14-0348/AF & 14-5002/AF, __ M.J. __ (CAAFlog case page) (link to slip op.), and United States v. Wilson, No.s 13-0157/AF & 14-5003/AF, __ M.J. __ (CAAFlog case page) (link to slip op.). Judge Stucky writes for the court in both cases, holding that Article 12 does apply to service members confined in civilian facilities within the United States, but that a service member must exhaust all administrative remedies prior to seeking judicial intervention for a violation of Article 12. Chief Judge Baker dissents in part from both cases, disagreeing on the majority’s conclusion about the applicability of Article 12.

I will publish a full analysis of each opinion on Monday.

Of the 32 cases argued at CAAF this term, only one remains undecided: United States v. MacDonald, No. 14-0001/AR (CAAFlog case page).

Congress created Article 6b in the National Defense Authorization Act for Fiscal Year 2014. My ongoing analysis of the military justice provisions in that legislation is available at this link.

Article 6b is a military version of the federal Crime Victims’ Rights Act (18 U.S.C. § 3771) (the CVRA), and many people (including myself) call it the Military Crime Victims’ Rights Act (the MCVRA) (I think the Joint Service Committee coined the term).

Article 6b(b) provides the following definition:

(b) Victim of an Offense Under This Chapter Defined- In this section, the term ‘victim of an offense under this chapter’ means a person who has suffered direct physical, emotional, or pecuniary harm as a result of the commission of an offense under this chapter (the Uniform Code of Military Justice).

The problem with the definition is that it doesn’t provide a clear point in time when the protections of Article 6b apply (i.e., at the time of commission of the alleged offense? At the time the report is made? Once a formal investigation begins? After charges are preferred? Etc., etc…).

The analogous CVRA may be a source of some guidance, except that it is also somewhat unclear. In this post at The Volokh Conspiracy, Paul Cassell discusses a paper he co-authored (available here) that argues that the CVRA applies before charges are filed, while the Justice Department took the position (in this memo) that the CVRA generally applies only after charges are filed.

Notably, the special victims counsel (SVC) component of the military’s legal assistance program (established in 10 U.S.C. § 1044e) states that SVC services (for sex-related offense victims) begins:

[U]pon report of an alleged sex-related offense or at the time the victim seeks assistance from a Sexual Assault Response Coordinator, a Sexual Assault Victim Advocate, a military criminal investigator, a victim/witness liaison, a trial counsel, a healthcare provider, or any other personnel designated by the Secretary concerned for purposes of this subsection.

10 U.S.C. § 1044e(f)(1).

Recent CAAF jurisprudence has been loaded with significant lesser included offense (LIO) issues. Things really got started in 2008 when, in United States v. Medina, 66 M.J. 21, 26 (C.A.A.F. 2008) (discussed here), the court viewed the three clauses of Article 134 as alternative theories of prosecution and concluded that Article 134 clause 1 & 2 offenses are not are not necessarily LIOs of clause 3 offenses. CAAF continued this reasoning in United States v. Miller, 67 M.J. 385 (C.A.A.F. 2009) (discussed here), holding that a simple disorder under Article 134 is not a LIO of every enumerated article. Then, in United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010) (discussed here), the court returned to the elements test for determining LIOs, creating what we called an easy button for LIOs (and producing some entertaining citations in subsequent decisions). Notably, in Jones, the court noted

While it has been said that “[t]he question of what constitutes a lesser-included offense [in the military justice system] . . . is a Hydra,” United States v. Weymouth, 43 M.J. 329, 342 (CAAF 1995) (Crawford, J, concur ring in the result), rather than embracing a “Hydra” we return to the elements test, which is eminently straightforward and has the added appeal of being fully consonant with the Constitution, precedent of the Supreme Court, and another line of our own cases.

Jones, 68 M.J. at 468.

But things weren’t really so eminently straightforward. For instance, in United States v. Rauscher, 71 M.J. 225 (C.A.A.F. 2012) (CAAFlog case page), the court found that the designation of a specific statute is immaterial when the proper elements of a different offense are explicitly alleged in the specification. And in United States v. Tunstall, 72 M.J. 191 (C.A.A.F. 2013) (CAAFlog case page), CAAF rejected a LIO that was too similar to the charged offense. There’s also the closely-related concept of multiplicity, which CAAF tackled in United States v. Campbell, 71 M.J. 19 (C.A.A.F. 2012) (CAAFlog case page), explaining that multiplicity is aimed at protection against double jeopardy. CAAF also considered multiplicity in United States v. Elespuru, 73 M.J. 326 (C.A.A.F. 2014) (CAAFlog case page), where the court addressed a multiplicity claim by finding that the issue was waived at trial but then the court set aside one of the two convictions anyway, noting that they were charged in the alternative.

The clarity of Medina, Miller, and Jones is somewhatobscured by applications like Rauscher, Tunstall, Campbell, and Elespuru. But in a recent unpublished decision in United States v. Hart, No. 201300295 (N-M.Ct.Crim.App. Aug. 19, 2014) (link to slip op.), a three-judge panel of the NMCCA eliminates all clarity and reincarnates the hydra.

The appellant in Hart was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of unpremeditated murder, involuntary manslaughter, aggravated assault, negligent homicide, and child endangerment in violation of Articles 118, 119, 128, and 134. He was sentenced to confinement for twelve years, reduction to E-1, total forfeitures, and a dishonorable discharge. The convictions all related to the death of the appellant’s infant daughter who the appellant was accused of forcibly shaking.

In particular, the appellant was convicted of three of the charges (unpremeditated murder (Art. 118(3)), involuntary manslaughter (Art. 119(b)(1)), and negligent homicide (Art. 134)) for conduct that occurred on a single day and resulted in the girl’s death (the aggravated assault and child endangerment charged addressed abuse on an earlier date). Writing for the three-judge panel of the CCA, Judge Jamison notes that these offenses “were specifically charged for contingencies-of-proof.” Slip op. at 9. However, the members were not instructed that the appellant could be convicted of no more than one of the three. Rather, “the military judge elected to merge for sentencing purposes the unpremeditated murder, involuntary manslaughter, and negligent homicide” offenses, meaning that the appellant was convicted of all three but sentenced only for the greatest offense (unpremeditated murder). Slip op. at 7. On appeal the appellant asserts that the military judge should have dismissed the involuntary manslaughter and negligent homicide offenses as an unreasonable multiplication of charges. Slip op. at 6-7.

Rather than second-guess the trial judge’s decision to merge the three offenses for sentencing, Judge Jamison reviews both offenses from a multiplicity standpoint and finds that both should be dismissed as LIOs. The finding of involuntary manslaughter as a LIO of unpremeditated murder in violation of Article 118(3) is rather unremarkable considering the elements of the each offense (and Judge Jamison notes the court’s decision in United States v. Dalton, 71 M.J. 632, 634 (N.M.Ct.Crim.App. 2012), aff’d, 72 M.J. 446-47 (C.A.A.F. 2013) (summary disposition), cert. denied, 134 S.Ct. 941 (2014), in which it affirmed involuntary manslaughter as a LIO of unpremeditated murder in violation of Article 118(2)). However, Judge Jamison’s conclusion that negligent homicide in violation of Article 134 is a LIO of unpremeditated murder in violation of Article 118(3) is remarkable for a couple of reasons, the first of which is that it is directly contrary to CAAF’s conclusions in United States v. Girouard, 70 M.J. 5, 9 (C.A.A.F. 2011), and United States v. McMurrin, 70 M.J. 15, 18 (C.A.A.F. 2011), and the second of which is that Article 134 offenses necessarily include an element missing from Article 118: prejudice to good order and discipline or conduct likely to bring discredit upon the armed forces.

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An Art. 32 hearing is scheduled for tomorrow in the case of Marine Corps’ Cpl. Wassef Ali Hassoun, who allegedly deserted his post in Iraq, but was feared to have been abducted by insurgents at the time.  Marine Corps Times report here.  Prior coverage here.

San Antonio News-Express reports, here, that the recruiter misconduct cases, including that of TSgt Jaime Rodriguez, are now being used as a training scenario.  Prior coverage here and here, among others.

Air Force Staff Sergeant to face non-capital murder charges in death of Navy Petty Officer.  AF Times coverage here and here.  The non-capital referral appears to be a nod to induce German authorities (who arrested the accused, Air Force SSgt Sean Oliver) to cooperate (S&S report here).  Prior coverage of Art. 32 here.

Military.com reports, here, that “Sgt. Bowe Bergdahl plans to leave the Army and attend college if he is cleared of potential desertion charges following the Army’s investigation into his capture in Afghanistan, Bergdahl’s lawyer said Tuesday.”  The investigation of Begdahl’s disappearance from his post in Afghanistan is expected in September the report says.

RAND Corp. will conduct the biennial DoD survey of workplace issues, sexual harassment and sexual assault reports S&S, here, “after prompting from some members of Congress to get an independent look at current trends, the Pentagon earlier this year signed a contract with RAND to carry out the survey.”

A Navy officer is suing the service for alleged retaliation for reporting negative health effects of burn pits, Military Times report here,

Former Lt. Cmdr. Celeste Santana, an environmental health expert, said in documents filed Aug. 1 in the U.S. Court of Federal Claims that she was relieved from duty at the base in 2009 in retaliation for reporting “serious environmental health issues” affecting the safety of U.S. troops and local Afghans.

H/t Defense News EB

Gene Fidell tipped me off to the new Air Force Instruction 51-110 dated August 5, 2014: Professional Responsibility Program. The publication includes revised Rules of Professional Conduct for Air Force Judge Advocates (the old ones are available here).

Notably, Rule 3.8(d) is modified in a way that I think quite adequately addresses the concerns raised in this post from June. The old version of Rule 3.8(d) stated:

[The trial counsel in a criminal case shall:] (d) at sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the trial counsel, except when the trial counsel is relieved of this responsibility by a protective order of the tribunal.

While the new version states:

[The trial counsel in a criminal case shall:] (d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the trial counsel, except when the trial counsel is relieved of this responsibility by a protective order of the tribunal.

Report below from last week’s Military Commissions proceedings at Gitmo. NIMJ’s volunteer observer for the proceedings was Prof. Chris Jenks, SMU Dedman School of Law.

Media Meeting With Prosecution and Defense

Sunday, August 10, 2014

The Office of Military Commissions (OMC) allowed the observers to sit in on the Sunday preview meeting between four media outlets and the Prosecution and Defense. The observers were not permitted to ask questions, however.

BG Martins spoke first and paraphrased written remarks he provided the media. He began by referencing 9/11 and told the story of one victim from the Trade Towers whose wife would be attending this week’s proceedings. He then explained how the week would likely unfold, first with oral argument in the government’s emergency motion to reconsider severance of US v Binalshibh from the other four 9/11 accused (AE 312). From there BG Martins envisioned the proceedings would turn to potential conflicts of interest in the Binalshibh defense team (AE 292), Hawsawi’s motion to sever his case (AE 299), a motion alleging defective referral (AE 8), and a motion alleging unlawful command influence (AE 31).

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Back in May, in this post, Phil reported a Government search of defense counsel offices at Marine Corps Base Camp Pendleton. The search was for a mobile telephone that belonged to an accused and was in the custody of a military defense counsel. The media picked up the story, as did the ABA Journal. And then, according to media reports (discussed here), the incident led to a prosecutor’s reassignment.

I made a FOIA request for documents associated with the search, including the search authorization (a military authorization analogous to a warrant) and the affidavit that supported the authorization. I recently received those documents and they are available – exactly as they were given to me by the Camp Pendleton FOIA office in response to my request – here.

Update: I got a call informing me that there was an unredacted social security number in the PDF. I have redacted it in two places. But I must stress that this PDF was provided to me by the Pendleton FOIA office in response to a formal FOIA request.

The authorization (the first page of the PDF) permits the seizure of the personal telephone of an accused named Sergeant Bentancourt. The authorization states that it is based upon an affidavit by an Agent Brandt, though the agent’s name in the actual affidavit released to me (pages 3-14 of the PDF) is redacted. The affidavit revels:

On 04Apr14, 1stLt [redacted], Defense Counsel, Legal Services Support Section West, MCB CPC, filed a defense motion for appropriate relief to compel release from pretrial confinement wherein she provided various images [sic] text message communication she obtained from Sgt [redacted] cellular telephone. The text message communication in the aforementioned motion is between Sgt [redacted] and a contact listed as [redacted] with telephone number [redacted]. During the text message communication, Sgt [redacted] and Mrs. [redacted] discussed the alleged assault. The text message communication provided by 1stLt [redacted] is only limited to portions deemed appropriate by 1stLt [redacted]. There is a high likelihood additional text message communications are available with evidentiary value to this investigation.

Affidavit at 6-7. What is the source for the agent’s crucial determination that there was a high likelihood of additional text messages with evidentiary value? “Training and experience,” according to the affidavit:

This Affiant knows from training and experience persons associated with the aforementioned criminal activities typically store evidence of those activities on digital media storage devices.

Affidavit at 7.

So much for view that “clearly, a profile alone without specific nexus to the person concerned cannot provide the sort of articulable facts necessary to find probable cause to search.” United States v. MaComber, 67 M.J. 214, 220 (C.A.A.F. 2009).

There was a lively debate in the comments section to this post from last Tuesday, where I reported CAAF’s summary disposition in United States v. McDowell, Military Judge, and DeMario, Real Party in Interest, No. 2013-28 (A.F.Ct.Crim.App. Mar. 13, 2014). The case involved an Air Force effort to stop a judge-ordered deposition of an alleged victim of sexual assault. The Air Force CCA declined to stop the deposition and CAAF affirmed the CCA (I analyzed the CCA’s opinion in this post, and discussed the JAG’s certification to CAAF in this post).

The deposition was ordered because at the Article 32 pretrial investigation the alleged victim – a civilian who could have refused to participate in the Article 32 entirely – took the stand as a Government witness and testified on direct examination, but then walked out during cross-examination by the Defense and refused to participate any further. The case was then referred to trial by general court-martial and the Defense sought an order from the judge compelling a deposition of the alleged victim. The judge granted the order (and re-opened the Article 32 pretrial investigation to force the convening authority to consider the results of the deposition) in part because:

[the alleged victim] “provided incomplete testimony” at the Article 32 hearing that “denied the accused of a substantial pretrial statutory right: a full opportunity to cross-examine an available witness at the Article 32 hearing.”

DeMario, order at 4 (quoting the military judge’s ruling).

One important fact about McDowell is that it involves an alleged victim who is a civilian who can refuse to participate in an Article 32 pretrial investigation (because an Article 32 investigating officer does not have the power to compel attendance). Today, an alleged victim on active duty does not have that same ability to refuse to participate (because a commander can compel that person’s attendance). But Article 32 was modified in the National Defense Authorization Act for FY14 to include an express rule that “a victim may not be required to testify at the preliminary hearing.” That change is not effective until December 27, 2014 (and then only for offenses committed on or after that date; for more discussion of that change, see part four of my series of posts on the NDAA changes). But when it is effective, this important fact in McDowell won’t be so significant.

However, McDowell also involves the fact that the alleged victim completed her Article 32 testimony for one party but then left during the opposing party’s cross-examination. As the CCA noted in its order:

A reasonable argument could be made that an essential witness – BB – was made unavailable at the Article 32 hearing when she excused herself before cross-examination concluded.

Order at 7. This is a fact that may well repeat itself when the future Article 32 takes effect and an alleged victim, who voluntarily participates in the proceeding, departs the Article 32 before the end of cross-examination by the opposing party. And there are good reasons to believe that when this happens a deposition of the alleged victim will be the appropriate remedy.

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This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court, where I’m now tracking six cases:

This week at CAAF: The next scheduled oral argument at CAAF is on September 9, 2014.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Wednesday, August 20, 2014, at 2 p.m. (from the issue statement, it appears that this case involves a Government interlocutory appeal under Article 62):

United States v. Stellato, No. 20140453

Issue: [Whether t]he military judge abused his discretion by dismissing all charges with prejudice based on claimed violations of R.C.M. 701

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’s website shows no scheduled oral arguments.

Amnesty International published a report (direct link to report) on Monday on civilian casualties in Afghanistan. This press release explains:

“Thousands of Afghans have been killed or injured by US forces since the invasion, but the victims and their families have little chance of redress. The US military justice system almost always fails to hold its soldiers accountable for unlawful killings and other abuses,” said Richard Bennett, Amnesty International’s Asia Pacific Director.

Corporal Robert Richards, who pleaded guilty to an orders violation and a violation of Article 134 in connection with the Afghanistan urination case, was found dead in his North Carolina home earlier this week. A report from Stars and Stripes is here.

In a report available here, McClatchy reporter Michael Doyle covers CAAF’s opinion in United States v. Davenport, No. 13-0573/AR, __ M.J. __ (C.A.A.F. Aug. 11, 2014) (CAAFlog case page).

Stars and Stripes reports here that:

An Air Force fighter pilot was convicted of rape last week, nine years after he committed the crime against a young airman.

Lt. Col. Michael J. Briggs, an F-16 pilot who was the 52nd Fighter Wing chief of safety at Spangdahlem Air Base, Germany, was convicted on Aug. 7, according to Air Force officials, after a weeklong court-martial before a military judge.

The judge sentenced Briggs, 40, to five months in jail, dismissal from the Air Force and a reprimand.

Finally, Stars and Stripes reprints a Colorado Springs Gazette article about allegations that cadet athletes at the Air Force Academy “flouted the sacred honor code by committing sexual assaults, taking drugs, cheating and engaging in other misconduct at wild parties while the service academy focused on winning bowl games and attracting money from alumni and private sources in recent years.”

CAAF granted review of the Army CCA’s published opinion in United States v. Carrasquillo, 72 M.J. 850 (A.Ct.Crim.App. 2013) (link to slip op.), as a companion case to United States v. Jones, 73 M.J. 357 (C.A.A.F. Jul. 21, 2014) (CAAFlog case page). In both cases, CAAF considered whether the military judge committed error by not suppressing statements made by each appellant, who were conspirators in a larceny in Iraq. When CAAF decided Jones, it eliminated the subjective prong of the two-part Duga test for whether an Article 31(b) rights warning is required, replacing it with an objective test, and then applied that test to affirm the conviction and the decision of the Army CCA.

Last Friday, August 8, CAAF summarily affirmed the conviction in Carrasquillo:

No. 14-0261/AR.  U.S. v. Elliot M. CARRASQUILLO.  CCA 20110719.  On further consideration of the granted issue, 73 M.J. 288 (C.A.A.F. 2014), and in view of United States v. Jones, 73 M.J. 357 (C.A.A.F. 2014), we conclude that in light of the facts and circumstances of this case, the military judge did not err in concluding that SPC Ellis was not acting, and could not reasonably be considered by Appellant to be acting, in an official law enforcement or disciplinary capacity in questioning Appellant, and the military judge did not abuse his discretion when he denied the defense’s motion to suppress Appellant’s statement.  Accordingly, it is ordered that the decision of the United States Army Court of Criminal Appeals is hereby affirmed.

For more details on the facts relating to this issue see my opinion analysis of Jones.

Unfortunately, CAAF’s resolution avoids what I felt was the really interesting issue in this case, namely the fact that, “on three separate occasions during appellant’s trial, the panel heard evidence regarding appellant’s invocation of his rights during the interview with CID.” Carrasquillo, 72 M.J. 850, __, slip op. at 4. The CCA found plain and obvious error but no prejudice on the basis that the error “does not outweigh the overwhelming evidence against appellant.” Id, slip op. at 16. I discussed the CCA’s opinion in a post titled: The right to remain silent when the evidence of guilt is overwhelming.

CAAF decided the Army case of United States v. Davenport, No. 13-0573/AR, 73 M.J. 373 (CAAFlog case page) (link to slip op.), on Monday, August 11, 2014. A majority of the court finds that the total omission of the testimony of a witness from the trial transcript is a substantial omission that renders the transcript nonverbatim. As a result, Rule for Courts-Martial 1103(f) applies and it was error for the Army CCA to affirm the sentence. CAAF reverses the CCA and remands the case for the convening authority to take action consistent with R.C.M. 1103(f).

Judge Ryan writes for the court. She is joined by all but Chief Judge Baker, who dissents because he finds that the missing testimony was not so important to the findings of guilt as to render the transcript nonverbatim.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of conspiracy, extortion, and bribery in connection with his duties as the force protection noncommissioned officer-in-charge for FOB Rustamiyah, Iraq, where he extorted money from local nationals in exchange for helping them conduct business on the base. He was acquitted of a charge of money laundering. He was sentenced to confinement for two years, reduction to E-1, and a bad-conduct discharge. The convening authority approved only one year of confinement, but otherwise approved the adjudged sentence.

When the case arrived at the Army CCA for appellate review it was discovered that:

[M]issing from the record [of trial] was the entire testimony on the merits of SGT MS, a Government witness. The record indicates only that the Government called SGT MS as a witness. Although the court reporter recorded the testimony, at some point after the case concluded the computer on which the court reporter recorded the testimony was reimaged, preventing recovery of the original recorded data. The testimony’s omission from the record was first discovered by appellate defense counsel on appeal to the ACCA. But he was acquitted of a money laundering charge, and that charge was the focus of the missing testimony of Sergeant Smith.

Slip op. at 5. Last term, in United States v. Gaskins, 72 M.J. 225 (C.A.A.F. 2013) (CAAFlog case page), CAAF found that the Army CCA did not abuse its discretion in ordering a sentence rehearing after the Government lost a Defense sentencing exhibit. A major contention in Gaskins was whether the sentence-limitations of R.C.M. 1103(f) applied to the case (no punitive discharge and no confinement or forfeitures beyond six months), but because the transcript in Gaskins was verbatim, CAAF found the rule inapplicable. The court also noted that while Article 54 requires a complete record, nothing limits the ability of a court of criminal appeals to remedy an error in the assembly of a complete record.

In Davenport, the Army CCA ordered a DuBay (post-trial factfinding) hearing “to provide the Government an opportunity to reconstruct SGT MS’s testimony.” Slip op. at 6. The DuBay revealed that missing testimony primarily – but not necessarily exclusively – related to the money laundering charge of which Appellant was acquitted. The case was returned to the CCA where:

After considering the findings from Appellant’s DuBay hearing, the ACCA found that “the government was unable to obtain or adequately reconstruct the exact testimony of SGT MS.” Davenport, 2013 CCA LEXIS 361, at *14, 2013 WL 1896277, at *4. Despite this fact, and in tension with the DuBay military judge’s conclusion that the substance and extent of SGT MS’s testimony was “not altogether clear” and that the testimony only “mostly” related to two money laundering charges of which Appellant was acquitted, the ACCA found that SGT MS “had no information relevant to any offense of which Appellant was convicted” and that his testimony “only related to the two money laundering specifications of which appellant was acquitted.” Id. at *11–*14, 2013 WL 1896277, at *3–*4 (emphasis added)

Slip op. at 7. The CCA then affirmed the sentence, finding that “the record in appellant’s case [was] both substantially verbatim and complete for appellate review purposes.” Slip op. at 8 (citation and marks omitted).

Judge Ryan’s opinion of the court focuses on CAAF’s disagreement with the CCA’s conclusion, and she writes that the majority is “hard pressed to agree with the ACCA that we can be certain of what SGT MS testified about.” Slip op. at 12.

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CAAF decided the Army case of United States v. Moon, No. 13-0536/AR, 73 M.J. 382 (CAAFlog case page) (link to slip op.), on Monday, August 11, 2014. A divided court finds two substantial bases in law and fact to question Appellant’s plea of guilty to wrongful possession of images of nude minors and persons appearing to be nude minors, in violation of Article 134, and sets aside the plea. CAAF reverses the decision of the Army CCA and remands the case for a sentence reassessment.

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

Appellant was convicted pursuant to his pleas of guilty, by a general court-martial composed of a military judge alone, of two specifications of wrongful possession of child pornography and one specification of wrongful possession of images of nude minors and persons appearing to be nude minors, all in violation of Article 134. He was sentenced to confinement for six months, total forfeitures, reduction to E-1, and a bad-conduct discharge. The “nude minors” specification was charged as a simple disorder with a maximum punishment of confinement for four months. Gov’t Br. at 3.

When Appellant pleaded guilty, the military judge defined child pornography with reference to the federal definition, explaining that “the images [for the child pornography specifications] qualified as child pornography based only on lascivious exhibition of the genitals.” Slip op. at 3-4 (citing 18 U.S.C. 2256(2)). But the nude minors specification was essentially a catchall for other images that – while showing unclothed children – did not meet the definition of child pornography. “With very few exceptions, the images . . . depict minors who appear to be in some sort of nudist colony or camp. They are playing sports, playing on a beach, taking photos with each other, and doing other innocuous and nonsexual activities.” Slip op. at 13

This case is something of a trailer to United States v. Warner, 73 M.J. 1 (C.A.A.F. Dec. 6, 2013) (CAAFlog case page), in which CAAF reversed a conviction for possession of images that depict minors as sexual objects or in a sexually suggestive way (called “child erotica”) as service discrediting conduct in violation of Article 134, finding that the appellant in Warner was deprived of the due process right to fair notice that his conduct was criminal. Notably, Judge Stucky also wrote for CAAF in Warner, and Chief Judge Baker also dissented (the case was argued before Judge Ohlson joined the court).

In Moon, Appellant petitioned CAAF for review of the case on the merits (identifying no specific issues), but the court specified two issues for review:

I. Whether Specification 2 of the Additional Charge is void for vagueness because Appellant was not given fair notice that the charged conduct of possessing “multiple images of nude minors and persons appearing to be nude minors” was forbidden and subject to criminal action.

II. Whether there is a substantial basis in law to question Appellant’s guilty plea to Specification 2 of the Additional Charge, which alleges that Appellant possessed “multiple images of nude minors and persons appearing to be nude minors.

Judge Stucky’s discussion begins by assuming, without deciding, that Appellant had fair notice. Slip op. at 10. While not a dispositive issue to the case, Judge Ohlson’s dissent discusses the “deeply rooted practice in the military justice system” of prosecuting offenses under Article 134. Diss. op. at 3. Judge Ohlson also explains that “the determination of whether a reasonable member would know that his or her conduct fell within the reach of Article 134, UCMJ, can be made by the application of common sense.” Diss. op. at 4 (citing United States v. Ashby, 68 M.J. 108, 119 (C.A.A.F. 2009)). Judge Ohlson then concludes that:

Although the images knowingly possessed by Appellant may not meet the definition of child pornography under the provisions of the CPPA, many of these images certainly meet a common sense definition of child pornography.

This is the same position taken by Chief Judge Baker in his dissent in Warner, but it is firmly rejected by the majority with Judge Stucky writing that the majority “wholly reject[s] the dissent’s ‘common sense’ test.” Slip op. at 10 n.1.

But Judge Stucky and the majority reject Appellant’s plea for two other reasons: “[T]he plea contains unresolved inconsistencies,” slip op. at 12, and “there is a substantial basis upon which to question whether either the military judge or Appellant understood how the law related to the facts of his case,” slip op. at 14.

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Back in March, in this post, I wrote about the Air Force CCA’s interlocutory order in United States v. McDowell, Military Judge, and DeMario, Real Party in Interest, Misc. Dkt. No. 2013-28 (A.F.Ct.Crim.App. Mar. 13, 2014) (link to order).

The accused is charged with forcible rape of a then 16-year-old girl – who was a family friend - in March 2012. The girl participated in the Article 32 pretrial investigation but cut short her testimony during cross examination by the Defense. After the case was referred, the Defense asked the judge to order a deposition of the girl and the judge granted the Defense request (and also ordered the Article 32 re-opened to consider the deposition). The Government then sought a writ of mandamus from the Court of Criminal Appeals to stop the deposition. The CCA denied the petition noting in part that “this matter represents a case-specific situation, not a widespread situation likely to recur.” McDowell, order at 8.

The Judge Advocate General of the Air Force then certified the case to CAAF (discussed here).

On Friday, August 8, CAAF summarily affirmed the CCA’s ruling denying the Government petition. Chief Judge Baker writes a separate concurrence, reproduced in full below, in order “to highlight the sui generis nature of this case.”

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This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court, where I’m now tracking six cases:

This week at CAAF: The next scheduled oral argument at CAAF is on September 9, 2014.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on August 20, 2014.

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’s website shows no scheduled oral arguments.