On Monday CAAF granted review in this Army case:

No. 19-0252/AR. U.S. v. Tyler Washington. CCA 20170329. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals it is ordered that said petition is granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION BY PERMITTING THE UNIT’S SHARP REPRESENTATIVE TO TESTIFY THAT “WHEN A PERSON SAYS ‘NO’ IT MEANS STOP, WALK AWAY.”

Briefs will be filed under Rule 25.

SHARP is the Army’s Sexual Harassment Assault Response and Prevention program.

No opinion is available on the Army CCA’s website (indicating that the CCA summarily affirmed).

This week at SCOTUS: As discussed here, Collins filed his response to the Solicitor General’s cert. petition, and the alleged victims (of both Collins and Daniels) filed an amicus brief in support of the petition. In other news, the petitions in Briggs are Camacho are scheduled for conference on Oct. 1, and the solicitor general received an extension of time to file the requested response in Richards. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking six cases:

• United States v. Briggs, No. 19-108 (pend. conf. on Oct. 1)
• United States v. Collins, No. 19-184 (pet. filed Aug. 9; Collins resp. filed Sep. 9; Daniels resp. due Oct. 9)
• Richards v. Donovan, et al., No. 19-55 (pet. filed Jun. 8; resp. req. Aug. 14, due Oct. 15)
• Livingstone v. United States, No. 19-5256 (pro se pet. dkt. Jul. 19; resp. waived Jul. 31; pend. conf. on Oct. 1)
• Camacho v. United States, No. 19-243 (pet. filed. Aug 21; resp. waived Sep. 3, pend conf. on Oct. 1)
• McDonald v. United States, No. 19A191 (ext. of time to file cert. pet. granted to Oct. 26)

This week at CAAF: CAAF completed its oral argument schedule for the current term. The first argument of the 2019 term is scheduled for October 16, 2019, at the J. Reuben Clark Law School, Brigham Young University, Provo, Utah.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Thursday, September 19, 2019, at 10 a.m.:

United States v. Smith, No. 20180156

Issue: Whether the court-martial was improperly convened where the convening authority considered criteria not listed in Article 25, UCMJ, when selecting panel members.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on September 30, 2019.

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 will hear oral argument in one case this week, on Friday, September 20, 2019, at 12:45 p.m.:

United States v. Kunishige, No. 201800110

Case Summary: A panel of members with enlisted representation sitting as a general court-martial convicted Appellant, contrary to his pleas, of violation of a lawful order, rapeand sexual abuse of a child, sexual assault, aggravated assault, assault consummated by battery, solicitation and distribution of child pornography, receipt and possession of child pornography, obstruction of justice, and adultery,in violation of Articles 92, 120, 120b, 128, and 134, UCMJ, 10 U.S.C. §§892, 920, 920b, 928, 934 (2016). The members sentenced Appellant to thirty-nine years of confinement, reduction to pay grade E-1, forfeiture of all pay and allowances, and a dishonorabled ischarge.The Convening Authority approved the sentence as adjudged and, except for the dishonorable discharge, ordered the sentence executed.

Issues:
I. The United States argues that Appellant waived his right to discovery of communications relating to the members’ selection process. Did Appellant waive his right to discovery in light of: 1) the civilian trial defense counsel’s two written motions; 2) the military judge’s order granting the motion to compel discovery; 3) the civilian trial defense counsel’s repeated attempts to enforce the military judge’s order during trial; and 4) the trial counsel’s conflicting statements about the existence of discovery and completeness of discovery provided?

II. Did the government’s actions in 1) disclosing responsive communications on the last day of trial during presentencing proceedings; and 2) disclosing additional responsive communications shortly before a post-trial Article 39(a) session constitute a discovery violation?

III. Was Appellant materially prejudiced by either alleged discovery violation?

A reader sent me an email about a job posting for a faculty position at Belmont Law. Apparently, attorneys with court-martial experience are encouraged to apply.

The posting is after the jump.

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Last year, in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), a unanimous CAAF reversed 20 years of precedent and held that the statute of limitations for rape of adult occurring prior to January 6, 2006 (when Congress specifically eliminated the statute of limitations), is just five years. The decision was the #3 Military Justice Story of 2018. The Solicitor General did not ask the Supreme Court to review CAAF’s decision.

Earlier this year, in United States v. Briggs, 78 M.J. 289 (C.A.A.F. Feb. 22, 2019) (CAAFlog case page), CAAF applied Mangahas and held that the 2006 elimination of the statute of limitations for the offense of rape was not retroactive. Accordingly, CAAF reversed Briggs’ conviction of an allegation dating to 2005. The Solicitor General asked the Supreme Court to review that decision in July, and the case is now pending conference on October 1, 2019.

After CAAF decided Briggs, it issued summary dispositions in two trailer cases: United States v. Collins, 78 M.J. 415 (C.A.A.F. Mar. 12, 2019) (CAAFlog case page), and United States v. Daniels, __ M.J. __ (C.A.A.F. Jul. 22, 2019) (noted here). The Solicitor General asked the Supreme Court to review those cases, too, in a combined petition that it also asked the Court to consolidate with the petition in Briggs (noted here). The posture of Collins and Daniels are very different from Briggs, however, because in Briggs the statute of limitations (as reinterpreted by Mangahas) had not yet expired when Congress eliminated it, creating the possibility of retroactive application of the new, unlimited statute of limitations, while the prosecutions in Collins and Daniels were both firmly time-barred under the new, Mangahas standard (because a statute of limitations may be extended retroactively, but only for charges where the preexisting statute of limitations has not yet expired; the allegation in Collins dates to 2000, and the allegation in Daniels dates to 1998).

Collins has filed his brief in opposition to the Solicitor General’s petition. It is available here.

Additionally, the alleged victims in Collins and Daniels have filed an amicus curiae brief in support of the Solicitor General’s petition. It is available here.

Significant military justice event this week: The seventh annual Joint Appellate Advocacy Training is this week, on September 10-12, at the Rosenthal Theater, Joint Base Myer-Henderson Hall, Arlington, VA.

You must have base access to reach the theater. If you do not have base access, you will need to contact JBMHH security for a visitor pass. Otherwise, no registration or RSVP is required for the training.

This week at SCOTUS: One of the two respondents in Collins (& Daniels) requested an extension of time to respond to the Solicitor General’s cert. petition. Additionally, the respondent(s) in Richards also requested an extension of time to respond. Finally, the Solicitor General waived the right to respond in Camacho.

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

• United States v. Briggs, No. 19-108 (pet. filed Jul. 22; resp. filed Aug. 14; reply filed Aug. 28)
• United States v. Collins, No. 19-184 (pet. filed Aug. 9; resp. due Sep. 9)
• Richards v. Donovan, et al., No. 19-55 (pet. filed Jun. 8; resp. req. Aug. 14, due Sep. 13)
• Livingstone v. United States, No. 19-5256 (pro se pet. dkt. Jul. 19; resp. waived Jul. 31; pend. conf. on Oct 1)
• Camacho v. United States, No. 19-243 (pet. filed. Aug 21; resp. waived Sep. 3)
• McDonald v. United States, No. 19A191 (ext. of time to file cert. pet. granted to Oct. 26)

This week at CAAF: CAAF completed its oral argument schedule for the current term. The first argument of the 2019 term is scheduled for October 16, 2019, at the J. Reuben Clark Law School, Brigham Young University, Provo, Utah.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Tuesday September 10, 2019, at 10:30 a.m.:

United States v. Rapmund, No. 20170564

Issues:
I. Whether the definition of “drunk” in the panel instructions misrepresented the law by stating that any impairment by alcohol was sufficient for the offense of drunken operation of a vehicle, which led the panel members to improperly convict on the offenses of drunken operation of a vehicle, negligent homicide, and involuntary manslaughter.

II. Whether appellant’s involuntary manslaughter conviction was supported by sufficient evidence of culpable negligence.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on September 30, 2019.

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

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on September 27, 2019.

Article 6b – which codifies rights for victims and was first enacted as part of the 2013 changes to the UCMJ, and then modified the following year – was the #6 Military Justice Story of 2016 and the #9 Military Justice Story of 2018. The provision remains a developing area of military law, with CAAF’s decision this term in United States v. Hamilton, 78 M.J. 335 (C.A.A.F. Feb. 28, 2019) (CAAFlog case page), that avoided deciding whether a statement by a crime victim admissible under R.C.M. 1001A (the President’s implementation of the Article 6b right to be reasonably heard) (moved to R.C.M. 1001(c) in the 2019 MCM) is evidence that is subject to any of the Military Rules of Evidence.

A three-judge panel of the Air Force CCA recently issued a published decision addressing the Article 6b(a)(4)(B) right to be reasonably heard at a sentencing hearing, in United States v. Shoup, __ M.J. __, No. 39487 (A.F. Ct. Crim. App. Aug 23, 2019) (link to slip op.). Senior Airman Shoup pleaded guilty to possession and distribution of child pornography and attempted sexual abuse of a child. During the sentencing phase of the court-martial, the prosecution offered three exhibits as victim impact statements under Article 6b and R.C.M. 1001A. The military judge admitted the exhibits over defense objection, and the CCA finds that to be error. Considering the nature of the statements and the seriousness of the underlying misconduct, however, the CCA finds the error to be harmless.

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This week at SCOTUS: As noted here, the Solicitor General filed a reply brief in Briggs. In the companion case of Collins (& Daniels), Daniels requested an extension of time to respond to the Government’s cert. petition. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking six cases:

• United States v. Briggs, No. 19-108 (pet. filed Jul. 22; resp. filed Aug. 14; reply filed Aug. 28)
• United States v. Collins, No. 19-184 (pet. filed Aug. 9; resp. due Sep. 9)
• Richards v. Donovan, et al., No. 19-55 (pet. filed Jun. 8; resp. req. Aug. 14, due Sep. 13)
• Livingstone v. United States, No. 19-5256 (pro se pet. dkt. Jul. 19; resp. waived Jul. 31; pend. conf. on Oct 1)
• Camacho v. United States, No. 19-243 (pet. filed. Aug 21; resp. due Sep. 23)
• McDonald v. United States, No. 19A191 (ext. of time to file cert. pet. granted to Oct. 26)

This week at CAAF: CAAF completed its oral argument schedule for the current term. The first argument of the 2019 term is scheduled for October 16, 2019, at the J. Reuben Clark Law School, Brigham Young University, Provo, Utah.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on September 10, 2019. The argument will be held at the New Mexico Court of Appeals.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on September 30, 2019.

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.

Past articles in this column have covered developments that explore the question of judicial independence in the military justice system. In February of this year, we discussed arguments made before the International Court of Justice wherein India called it a “manifest failing” that military judges in Pakistan’s court-martial system are not “independent of the executive.” India asserted having a judge outside of the executive branch, even in courts-martial, is one of the “indispensable elements of due process . . . in present times with the evolution of human rights jurisprudence.” (Scholarship Saturday: Whether courts-martial are suitable forums for the trial of serious offenses)

Then in April of this year, we covered the D.C. Circuit’s decision in Al-Nashiri, wherein that Court held that it was an “intolerable” conflict of interest for a judge sitting on a military commission to be seeking employment from the agency prosecuting that proceeding. (Scholarship Saturday: Questions regarding military judicial independence in the wake of Al-Nashiri)

Furthering the line of inquiry regarding what it means to be “independent” in the military justice system, New York University’s national security law blog, Just Security, recently published an article penned by the retired Judge Advocate General for the Canadian Forces, Ken Watkin, Brigadier General (Ret), entitled “‘Fiat Justitia’: Implications of a Canadian Military Justice Decision for International Justice.” General Watkin’s article covers the Canadian Supreme Court’s recent decision in R. v. Stillman, a case which bears importance given the fact that “military justice system compliance with human rights norms has increasingly been the subject of international debate and scrutiny.”

Read more »

Here’s a link to a Washington Times story about a military judge’s ruling in an Air Force general court-martial, dismissing sexual assault charges with prejudice because the convening authority (a 2-star) “directed the trial counsel not to enforce their subpoenas, [resulting in] the government abdicat[ing] its obligations to the justice system.” The military judge’s 13-page ruling is available here. Reportedly, the prosecution will not appeal the ruling.

Additionally, here’s a link to a story about the arrest of Coast Guard Seaman Ethan Tucker for the murder a fellow Coast Guardsman in Alaska.

In other news, the Solicitor General filed a reply brief in support of the Government’s petition for certiorari in Briggs. The brief is available here.

Finally, CAAF’s 2019 orientation for new attorneys (an annual event) will be on Tuesday, September 24, 2019 at 9:30 a.m. Additional details available here.

On Friday CAAF docketed this case certified by the Judge Advocate General of the Navy:

No. 19-0437/MC. U.S. v. Roberto Armendariz. CCA 201700338. Notice is given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 on the following issues:

I. WHETHER THE LOWER COURT ERRED IN OVERTURNING THE MILITARY JUDGE’S ADMISSION OF EVIDENCE WHERE THE MILITARY JUDGE FOUND THAT THE OFFICIAL WHO AUTHORIZED THE SEARCH WAS THE ACTING COMMANDER WITH FULL AUTHORITY AND CONTROL OVER THE REMAIN BEHIND ELEMENT, EXCEPT FOR AUTHORITY TO IMPOSE NONJUDICIAL PUNISHMENT AND CONVENE COURTS-MARTIAL?

II. WHETHER THE LOWER COURT ERRONEOUSLY APPLIED THE EXCLUSIONARY RULE UNDER MIL. R. EVID. 311(a)(3) BY FAILING TO APPROPRIATELY BALANCE THE BENEFITS OF DETERRENCE AGAINST THE COSTS TO THE JUSTICE SYSTEM, AND THEREBY ERRED IN OVERTURNING THE MILITARY JUDGE’S DECISION NOT TO APPLY THE EXCLUSIONARY RULE?

III. WHETHER THE LOWER COURT ERRED IN FINDING THE GOOD-FAITH EXCEPTION DID NOT APPLY WHERE THIS COURT HAS, IN UNITED STATES V. CHAPPLE, 36 M.J. 410 (C.M.A. 1993), HELD THE EXCEPTION APPLIES EVEN WHEN THE INDIVIDUAL ISSUING THAT SEARCH AUTHORIZATION LACKED AUTHORITY UNDER MIL. R. EVID. 315(d)(1), AND HERE LAW ENFORCEMENT REASONABLY BELIEVED THE ACTING COMMANDER WAS AUTHORIZED TO ISSUE SEARCH AUTHORIZATIONS?

Appellant will file a brief under Rule 22(b) in support of said certificate on or before the 23rd day of September, 2019.

The NMCCA’s opinion is available here. Reviewing a search authorization issued by the officer in charge of a remain-behind element (the portion of a unit remaining in garrison while the bulk of the unit deploys), the CCA held that the authorization was invalid because the officer in change was not a commander within the meaning of Mil. R. Evid. 315. It further held that “exclusion will deter future commanders from impermissibly delegating their inherent command authorities,” and that “exclusion will deter those who are not commanders, and therefore lack command authority,from attempting to exercise authorities they do not possess.” Slip op. at 24.

This week at SCOTUS: A new petition for certiorari was filed on August 21 in Camacho v. United States, No. 19-243. In May, CAAF summarily affirmed the Army CCA’s decision in the case (available here) that rejected claims of unlawful command influence based on the Army’s Sexual Harassment/Assault Response and Prevention (SHARP) program. The petition presents five questions:

I. Whether the Army’s Sexual Harassment Assault Response and Prevention Program (SHARP) reversed the constitutional presumption of innocence, diluted the “guilty beyond a reasonable doubt” standard of proof in criminal prosecutions, violated Fundamental Due Process, and disregarded the Sixth Amendment’s guaranty of a full and fair trial.

II. Whether the trial court, conditioned by the SHARP program’s reversal of the presumption of innocence, deprived Petitioner of his Constitutional Right to Fundamental Due Process where it allowed 13 instances of serious prosecutorial misconduct, to include making material misrepresentations in open court about digital images with which the prosecution tampered and on which the prosecution relied at trial, which further deprived Petitioner of the ability to put on a complete defense.

III. Whether the trial court, influenced by the SHARP program’s degradation of the presumption of innocence, wrongly admitted an unsigned, undated, typed copy of an “apology” letter introduced as uncharged misconduct to prove Petitioner may have assaulted his spouse and the purported victim a decade earlier, and hearsay testimony of her mother describing a graphic and degrading sexual assault of her daughter, which she did not witness.

IV. Whether the Army Court, predisposed to affirming guilt due to the SHARP program, misapplied its 10 U.S.C. § 866 plenary de novo jurisdiction when it declined to weigh the credibility of the complaining witness, where the record was replete with indications of her lack of candor and untrustworthiness, in violation of this Court’s precedent in Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (standard for sufficiency of evidence to support conviction).

V. Whether the Army Court, oriented to affirming guilt due to the SHARP program, failed to follow Sixth Amendment Supreme Court precedent when it declined to factor into its ineffective assistance of counsel analysis the trial judge’s having found 12 instances where trial defense counsel did not exercise reasonable due diligence to uncover and develop exonerating and mitigating evidence.

Additionally, the Court granted an extension of time to file a cert. petition in McDonald v. United States (CAAFlog case page). I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking six cases:

• United States v. Briggs, No. 19-108 (pet. filed Jul. 22; resp. filed Aug. 14)
• United States v. Collins, No. 19-184 (pet. filed Aug. 9; resp. due Sep. 9)
• Richards v. Donovan, et al., No. 19-55 (pet. filed Jun. 8; resp. req. Aug. 14, due Sep. 13)
• Livingstone v. United States, No. 19-5256 (pro se pet. dkt. Jul. 19; resp. waived Jul. 31; pend. conf. on Oct 1)
• Camacho v. United States, No. 19-243 (pet. filed. Aug 21)
• McDonald v. United States, No. 19A191 (ext. of time to file cert. pet. granted to Oct. 26).

This week at CAAF: CAAF completed its oral argument schedule for the current term. The first argument of the 2019 term is scheduled for October 16, 2019, at the J. Reuben Clark Law School, Brigham Young University, Provo, Utah.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on September 10, 2019. The argument will be held at the New Mexico Court of Appeals.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on September 30, 2019.

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.

CAAF decided the Army case of United States v. Stout, 79 M.J. 168, No. 18-0273/AR (CAAFlog case page) (link to slip op.), on August 22, 2019. Reviewing pre-referral changes to the dates of the alleged acts, CAAF finds that the changes were authorized because Article 34(c) specifically permits such changes to conform the charges to the evidence in an Article 32 report. Accordingly, CAAF affirms the findings, sentence, and decision of the Army CCA.

Chief Judge Stucky writes for the court, joined by Judge Sparks. Judge Ryan concurs fully in the Chief Judge’s opinion, but writes separately to address the reach of Rule for Courts-Martial (R.C.M.) 603. Judge Maggs concurs in the judgment, but would hold that the changes were minor (and so permissible under any analysis). Judge Ohlson dissents, asserting that the change-limiting language of R.C.M. 603 applies despite the change-permitting language of Article 34.

Staff Sergeant (E-6) Stout was convicted of abusive sexual contact with a child, indecent liberties with a child, sodomy with a child, and assault with intent to commit rape, in violation of Articles 120, 125, and 134. All of the offenses involved alleged sexual acts with his step-daughter and, as initially charged, many of the specifications alleged that the acts occurred on certain dates in 2008 and 2009. At an Article 32 pretrial investigation the child testified that the acts occurred while the family lived in New York, from August 2008 until June 2009.

Stout initially pleaded guilty (in 2012) to numerous offenses in accordance with a pretrial agreement, but the Army CCA reversed the pleas (in 2014) and authorized a rehearing. Stout then changed course and contested the charges. At that point – and prior to the convening authority referring the charges for the rehearing – the prosecution made dozens of changes to the charges. Some were relatively insignificant, such as correcting misspellings, but others changed the dates of the alleged acts by as much as 300 days, removing the specific dates and replacing them with the entire time the family lived in New York: between on or about 7 August 2008 and on or about 3 June 2009.

Stout objected, claiming that the changes were major changes that, under R.C.M. 603(d), required preferral of new charges. The military judge overruled the objection and Stout was convicted (in 2015) and sentenced to confinement for 18 years, reduction to E-1, and a dishonorable discharge. Stout renewed his challenge on appeal, and CAAF granted review to decide:

Whether the Government made major changes to the time frame of three offenses, over defense objection, and failed to prefer them anew in accordance with Rule for Courts-Martial 603.

CAAF heard oral argument in December. After the argument, it ordered briefing of two additional issues:

I. Whether United States v. Brown, 4 C.M.A. 683, 16 C.M.R. 257 (1954), is not controlling in this case because the decision predates the promulgation of the applicable version of R.C.M. 603(d).

II. Whether the applicable version of R.C.M. 603(d) is contrary to and inconsistent with the applicable version of Article 34(c), UCMJ, and therefore void to the extent it prohibits major changes, before referral, to charges and specifications that were amended to “conform to the substance of the evidence contained in the report of the investigating officer.” Article 34(c), UCMJ, 10 U.S.C. § 834(c) (2012).

Chief Judge Stucky’s opinion for the court answers the last of those issues in the affirmative, holding that Article 34(c) permits the changes (though not explicitly stating that contrary language in R.C.M. 603(d) is void).

Read more »

In the wake of the Chief of Naval Operations ordering a review of the leadership and performance of the Navy JAG Corps (discussed here and here), on Wednesday the Secretary of the Navy signed a memo ordering comprehensive reviews of both the Navy and Marine Corps legal communities.

SECNAV’s memo is available here. It states, in part:

I expect these reviews to provide detailed recommendations with respect to revising any relevant statutory and regulatory authorities, policies, resourcing, and any corrective actions necessary. The scope of this comprehensive review includes: legal community training and professional development; organization and command relationships including oversight; efficiency and effectiveness of the delivery oflegal services; sufficiency of staffing levels; and evaluation of career progression. This will include any potential effect of the Military Justice Act of 2016, which began implementation in January 2019. The reviews may expand to encompass any matter deemed appropriate that is directly related to the organization, leadership oversight, and performance of the Navy and Marine Corps legal communities. However, the reviews shall not review or make recommendations regarding substantive matters of military law including the Uniform Code of Military Justice.

The memo explains that this review is separate from the review ordered by the CNO and from an ongoing Center for Naval Analysis review of the Marine Corps legal community:

Additionally, reference (e) highlights the existence of prior Navy Judge Advocate General tasking by the Chief of Naval Operations (CNO). The Navy review should consider the work the Navy JAG is doing as a result of CNO’s prior tasking, but should not duplicate or replace that effort. The Marine Corps review should consider the Center for Naval Analysis efforts to analyze the Marine Corps legal community, but not duplicate or replace that effort.

Yesterday CAAF granted review in this Army case:

No. 19-0259/AR. U.S. v. Robert S. Avery. CCA 20140202. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

WHETHER THE SPECIFICATION OF CHARGE II, ALLEGING THE COMMUNICATION OF INDECENT LANGUAGE TO A CHILD IN VIOLATION OF ARTICLE 134, UCMJ, WAS PREEMPTED BY ARTICLE 120b.

Briefs will be filed under Rule 25.

The Army CCA’s decision is available here. It does not address preemption.

The preemption doctrine states that Article 134 cannot be used to prosecute conduct covered by Articles 80-132. See ¶ 91.c.(5)(a), Part IV, Manual for Courts-Martial (2019 ed.). See also United States v. Wheeler, 77 M.J. 289 (C.A.A.F. 2018) (CAAFlog case page).

Avery was convicted of communicating indecent language to a child under the age of 16, as an enumerated offense under Article 134. That offense criminalizes the communication of indecent language – without regard to the age of the recipient or any criminal intent – under circumstances that are either prejudicial to good order and discipline or of a nature to bring discredit upon the armed forces, however the MCM authorizes a grater punishment when the recipient is under the age of 16.

Article 120b (2012), in contrast, criminalizes any lewd act with a child, and the definition of a lewd act includes (among other things):

intentionally communicating indecent language to a child by any means, including via any communication technology, with an intent to abuse, humiliate, or degrade any person, or to arouse or gratify the sexual desire of any person

and

any indecent conduct, intentionally done with or in the presence of a child, including via any communication technology, that amounts to a form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations.

CAAF’s review, it seems, will address whether the Government can use the Article 134 offense of indecent language to prosecute an accused for indecent communications when it can’t prove an intent to abuse, humiliate, degrade, or arouse, or when it can’t prove the tender age of the recipient, or both. If CAAF says it can’t, then that would likely cast doubt on the viability of other well-settled Article 134 offenses, such as self-injury without intent to avoid service (see malingering; see also United States v. Caldwell, 72 M.J. 137 (C.A.A.F. 2013) (CAAFlog case page)) and negligent homicide (see murder and manslaughter; see also United States v. Girouard, 70 M.J. 5, 9 (C.A.A.F. 2011), United States v. McMurrin, 70 M.J. 15, 18 (C.A.A.F. 2011), and A Mobius Strip of Citation).

Audio of the recent oral arguments before the Air Force CCA is available on our oral argument audio podcast at the following links:

United States v. Owens, No. 39457: Oral argument audio.

United States v. Scilluffo, No. 39539: Oral argument audio.