CAAF will hear oral argument in the Coast Guard case of United States v. Reese, No. 17-0028/CG (CAAFlog case page), on Tuesday, March 14, 2017, at 9:30 a.m. Two granted issues challenge the wording of the charges; the first based on a change made during the trial and the second based on the omission of words of criminality from a specification under Article 134:

I. Whether the military judge erred in allowing the government to make a major change to a specification after the complaining witness’s testimony did not support the offense as originally charged.

II. Whether the specification of the additional charge fails to state an offense where the terminal element failed to allege words of criminality and where the alleged conduct fell within a listed offense of Article 134, UCMJ.

Aviation Maintenance Technician First Class (E-6) Reese elected to be tried by a military judge alone. Reese pleaded guilty to numerous offenses but he pleaded not guilty to other offenses including allegations of sexual abuse of a four year old boy, EV. Reese was also charged with engaging in service discrediting conduct in violation of Article 134 for telling the boy to keep quiet about the alleged sexual abuse.

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Significant military justice events this week: The Code Committee will hold its annual meeting on Tuesday, March 7, at CAAF (details here). Additionally, CAAF’s annual continuing legal education and training program will occur on Wednesday-Thursday, March 8-9, at American University Washington College of Law, Claudio Grossman Hall (details here).

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

This week at CAAF: The next scheduled oral argument at CAAF is on March 14, 2017.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on March 21, 2017.

This week at the AFCCA: The Air Force CCA’s website is inaccessible.

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

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on March 24, 2017.

Just a few weeks ago, this blog noted that CAAF had been so “unsettled” by the courtroom behavior of a military prosecutor in United States v. Sewell, No. 16-0360 (CAAFlog case page)that the Court named the prosecutor in the decision. However, ultimately, the Court found the conduct was harmless beyond a reasonable doubt and affirmed the conviction and sentence.

On February 21, the Sewell case was featured in an article published in The Daily Signal, which is the Heritage Foundation’s “digital-first, multimedia news platform.” The article, entitled “Latest Case of JAG Malpractice Shows Pressing Need For Reform,” was authored by the Manager of the Heritage Foundation’s National Security Law Program, Charles “Cully” Stimson, who is also, according to his Heritage Foundation biography, a senior naval reserve JAG. An article dispersed exclusively online by an entity derived from a political “think-tank” and aligned with a Political Action Committee will not normally constitute the sort of scholarship this column covers. However, this piece is an exception because it so precisely critiques a fundamental aspect of the military justice system, and because The Heritage Foundation reportedly “wields clout” within the new administration. For those reasons, it is worthy of note even if it is a bit polemic.

The article takes pains to publicly name the offending prosecutor from Sewell, and, in its opening volley, stridently declares:

The Court of Appeals for the Armed Forces (the top military court) has slammed another Army trial prosecutor for egregious misconduct in an Army court-martial.

Id.   Read more »

CAAF decided the Air Force case of United States v. Price, __ M.J. __, No. 16-0611/AF (CAAFlog case page) (link to slip op.), on Friday, March 3, 2017. In a short opinion the court concludes that the military judge did not elicit too much information about the appellant’s misconduct during the plea inquiry. CAAF affirms the findings and sentence and the decision of the Air Force CCA

Judge Ohlson writes for a unanimous court.

CAAF granted review to determine:

Whether the military judge abused his discretion by forcing appellant to admit to misconduct greater than was necessary for a provident plea.

Airman First Class (E-3) Price pleaded guilty at a special court-martial composed of a military judge alone to wrongfully using, possessing, and distributing various controlled substances. He was sentenced to confinement for four months, reduction to E-1, and a bad-conduct discharge.

In order to ensure that a plea of guilty at a court-martial is made voluntarily – and in light of the fact that military service involves all manner of coercion – a military judge must “conduct a detailed inquiry into the offenses charged, the accused’s understanding of the elements of each offense, the accused’s conduct, and the accused’s willingness to plead guilty.” Slip op. at 4 (quoting United States v. Perron, 58 M.J. 78, 82 (C.A.A.F. 2003)) (additional citation omitted) (emphasis in original).

When Price pleaded guilty, however, he offered only a “limited, generic recitation” of the factual basis for his plea (the things that made him guilty). Slip op. at 2. The military judge pressed for additional details over defense objection, eventually eliciting aggravating facts that were not perhaps totally necessary to a sufficient guilty plea.

But CAAF finds no error.

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

United States v. Erikson, No. 16-0705/AR (CAAFlog case page): Oral argument audio.

United States v. Ahern, No. 17-0032/AR (CAAFlog case page): Oral argument audio.

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

United States v. Hukill, No. 17-0003/AR (CAAFlog case page): Oral argument audio.

United States v. Feliciano, No. 17-0035/AR (CAAFlog case page): Oral argument audio.

CAAF will hear oral argument in the Army case of United States v. Ahern, No. 17-0032/AR (CAAFlog case page), on Wednesday, March 1, 2017, after the oral argument in Erikson. The case presents a challenge to the Army CCA’s interpretation of Mil. R. Evid. 304(a)(2), which governs a person’s failure to deny an accusation of wrongdoing made while the person was under investigation. In an unpublished decision (previously discussed here) the CCA concluded that the rule is only triggered by an investigation when the accused is actually aware of the investigation. CAAF granted review to determine:

Whether the lower court erred when it held that the prohibition against using an admission by silence provided by Mil. R. Evid. 304(a)(2) is triggered only “when the accused is aware of” an investigation contrary to the plain language of the rule.

Lieutenant Colonel (O-5) Ahern was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of aggravated sexual assault of a child, aggravated sexual assault, assault consummated by a battery, indecent acts with a child, and child endangerment in violation of Articles 120, 128, and 134. The members sentenced Ahern to confinement for 17 years and six months and to a dismissal.

The charges alleged that Ahern sexually abused his step-daughter. After the girl made the allegations, law enforcement directed her to send a pretext text message to Ahern in an effort to elicit an incriminating statement. Ahern did not respond to the message. The defense admitted evidence of this exchange at trial. The girl’s mother also conducted a recorded pretext phone call with Ahern, again in an effort to elicit an incriminating statement. The mother confronted Ahern with the allegation during the call and he did not directly deny it. The prosecution admitted the call into evidence without objection from the defense. Then, in closing argument, the prosecution asserted that Ahern’s failure to deny the allegations in response to the text message and the phone call were evidence of his guilt. The defense did not object to the argument.

The CCA affirmed after concluding that it was not plain error for the prosecution to assert in closing argument that Ahern’s failures to deny the allegations during pretext communications facilitated by law enforcement were admissions by silence.

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CAAF will hear oral argument in the Army case of United States v. Erikson, No. 16-0705/AR (CAAFlog case page), on Wednesday, March 1, 2017, at 9:30 a.m. The court will review a military judge’s exclusion of evidence that the alleged sexual assault victim made a prior (and ostensibly false) allegation of sexual assault against a different soldier; evidence that was offered to show the alleged victim’s motive to fabricate the allegation against the appellant:

I. Whether the military judge erred in excluding evidence that the victim previously made a false accusation of sexual contact against another soldier.

II. CMCR Judges Larss G. Celtnieks and Paulette V. Burton are not statutorily authorized to sit on the Army Court of Criminal Appeals.

III. Even if CMCR Judges Larss G. Celtnieks and Paulette V. Burton are statutorily authorized to be assigned to the Army Court of Criminal Appeals, their service on both courts violates the appointments clause given their newly attained status as superior officers.

Specialist (E-4) Erikson was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of two specifications of sexual assault and one specification of adultery in violation of Articles 120 and 134. The members sentenced Erikson to confinement for three years, reduction to E-1, and a bad-conduct discharge. The convening authority disapproved one of the sexual assault specifications and approved the adjudge sentence. The Army CCA summarily affirmed.

In advance of trial Erikson’s defense counsel sought a ruling on the admissibility of the alleged victim’s prior allegation. The defense theory was that at the time of both the prior allegation and the allegation against Erikson the alleged victim was in a failing relationship and the allegation was made to “attempt[] to avoid or resolve conflicts by making false accusations.” App. Br. at 5 (quoting record). “The defense [also] claimed that SPC BG [the alleged victim] knew she would receive favorable treatment each time she reported the sexual incidents, which gave her a motive to fabricate each report.” Gov’t Div. Br. at 9. The other alleged perpetrator was acquitted of the allegation at a summary court-martial.

The military judge denied Erikson’s motion to admit evidence of the other allegation, concluding that “the ‘defense failed to establish any similarity of the assault involved with [the other alleged offender] in May 2013 to the facts of this case which allegedly occurred in 2014’ and that it would lead to a trial within a trial and the probative value would be substantially outweighed.” App. Br. at 6 (quoting record). The military judge based his ruling in part on Mil. R. Evid. 412, which is the military’s rape shield statue.

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CAAF will hear oral argument in the Army case of United States v. Feliciano, No. 17-0035/AR (CAAFlog case page), on Tuesday, February 28, 2017, after the oral argument in Hukill. The case presents two issues related to the appellant’s convictions of attempted sexual assault:

I. Whether the military judge erred when he failed to instruct the panel on the defense of voluntary abandonment, and if so, whether the error was harmless beyond a reasonable doubt.

II. Whether the military judge erred when he instructed the panel that appellant’s mistake of fact as to consent must be both honest and reasonable, and if so, whether the error was harmless beyond a reasonable doubt.

Private (E-2) Feliciano was convicted of two specifications of attempted aggravated sexual assault in violation of Articles 80 and 120(c) (2006). Both specifications arose out of a sexual encounter in Feliciano’s barracks room with a female soldier who had been drinking. A third soldier witnessed the encounter and told Feliciano to stop, warning him that “if he continued along that they would definitely get him for rape, and that will be 25 to life and that people would probably also rape him in jail.” App. Br. at 4 (quoting record). Upon hearing this Feliciano ceased sexual contact with the alleged victim (who later returned to her own barracks room where she spent the night with the other soldier).

The members were not instructed on the defense of voluntary abandonment, which “is raised when the accused abandons his effort to commit a crime under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.” App. Br. at 10 (citations omitted). The members were instructed on the defense of mistake of fact as to consent, however they were instructed that any mistake needed to be reasonable. That is the standard for a general intent crime, but an attempt requires specific intent.

The Army CCA affirmed without considering either of the issues before CAAF. I noted the CCA’s opinion in this post for its suggestion that it might be proper to prohibit an accused from referencing sex offender registration in an unsworn statement.

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CAAF will hear oral argument in the Army case of United States v. Hukill, No. 17-0003/AR (CAAFlog case page), on Tuesday, February 28, 2017, at 9:30 a.m. The court will review the decision of the Army CCA issued in the wake of CAAF’s blockbuster decision in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page) – our #3 Military Justice Story of 2016 – that functionally held that Hills does not apply in a judge-alone trial because there is no risk that a military judge would apply an impermissibly low standard of proof.

Specialist (E-4) Hukill was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of rape and abusive sexual contact. Hukill was sentenced to confinement for seven years, reduction to E-1, total forfeitures, and a dishonorable discharge. The two offenses involved separate alleged victims, and the prosecution was allowed to use evidence of each alleged offense as evidence of Hukill’s propensity to commit the other alleged offense. At the time of Hukill’s trial such use was believed to be consistent with Mil. R. Evid. 413. Last June, however, in Hills, a unanimous CAAF concluded that charged offenses may not be used under Mil. R. Evid. 413 to prove an accused’s propensity to commit other charged offenses. But the Army CCA found that because Hukill was tried by a military judge alone, the improper use of the charged offenses for propensity purposes was harmless:

We are satisfied that his view on the admissibility of propensity evidence under Mil. R. Evid. 413 was harmless beyond a reasonable doubt. We find no risk that the military judge would apply an impermissibly low standard of proof concerning both the presumption of innocence and the requirement that the prosecution prove guilt beyond a reasonable doubt. Simply put, we find nothing in the record to suggest that the military judge did not hold the government to its burden of proving appellant’s guilt beyond a reasonable doubt, or that the military judge applied a lesser standard in adjudicating the charges against the appellant.

United States v. Hukill, No. 20140939, slip op. at 3 (A. Ct. Crim. App. Aug. 16, 2016) (op. on recon.) (link to slip op.). CAAF then granted review of two issues:

I. Whether, in a court-martial tried by military judge alone, the military judge abused his discretion by granting the government’s motion to use the charged sexual misconduct for Military Rule of Evidence 413 purposes to prove propensity to commit the charged sexual misconduct.

II. Whether Judge Paulette V. Burton and Judge Larss G. Celtnieks, judges on the court of military commission review were statutorily authorized to sit on the Army Court of Criminal Appeals, and even if they were statutorily authorized to be assigned to the Army Court of Criminal Appeals, whether their service on both courts violated the Appointments Clause given their newly attained status as a superior officer.

The phrasing of the first issue is odd, considering that in Hills CAAF unambiguously held “that admitting charged conduct as M.R.E. 413 evidence was an abuse of discretion.” 75 M.J. at 353. This is because “neither the text of M.R.E. 413 nor the legislative history of its federal counterpart suggests that the rule was intended to permit the government to show propensity by relying on the very acts the government needs to prove beyond a reasonable doubt in the same case.” 75 M.J. at 350. Hills stated a clear principle of law that is contrary to the ruling of the military judge in Hukill. Because there is no discretion to misapply the law, the military judge’s erroneous admission of charged offenses for propensity purposes was an abuse of discretion. The real issue is whether that error was harmless.

Yet in its brief in Hukill the Army Appellate Government Division re-litigates Hills despite the fact that the Government did not seek certiorari of CAAF’s decision.

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This week at SCOTUS: A petition for certiorari was filed last week in Cox, et al., v. United States, No. 16-1017. A copy of the petition is available here. The case raises the same questions as presented in Dalmazzi v. United States, No. 16-961 (CAAFlog case page), on behalf of six petitioners in whose cases CAAF vacated its grant of review in light of Dalmazzi. As noted here, the Court called for a response to the cert. petition in Dalmazzi. Additionally, Dalmazzi filed a supplemental brief (available here).

The Solicitor General filed the requested response in Howell. Finally, numerous amicus briefs have been filed in Sterling. Links to many of them are available in this press release from the First Liberty Institute, which supports Sterling. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking four cases:

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

Tuesday, February 28, 2017, at 9:30 a.m.:

United States v. Hukill, No. 17-0003/AR (CAAFlog case page)

Issues:
I. Whether, in a court-martial tried by military judge alone, the military judge abused his discretion by granting the government’s motion to use the charged sexual misconduct for Military Rule of Evidence 413 purposes to prove propensity to commit the charged sexual misconduct.

II. Whether Judge Paulette V. Burton and Judge Larss G. Celtnieks, judges on the court of military commission review were statutorily authorized to sit on the Army Court of Criminal Appeals, and even if they were statutorily authorized to be assigned to the Army Court of Criminal Appeals, whether their service on both courts violated the Appointments Clause given their newly attained status as a superior officer.

Case Links:
ACCA opinion
• ACCA opinion on reconsideration
Appellant’s brief
Appellee’s (Army Appellate Gov’t Div.) brief
Appellant’s reply brief
• Blog post: Argument preview

Followed by:

United States v. Feliciano, No. 17-0035/AR (CAAFlog case page)

Issues:
I. Whether the military judge erred when he failed to instruct the panel on the defense of voluntary abandonment, and if so, whether the error was harmless beyond a reasonable doubt.

II. Whether the military judge erred when he instructed the panel that appellant’s mistake of fact as to consent must be both honest and reasonable, and if so, whether the error was harmless beyond a reasonable doubt.

Case Links:
ACCA opinion
Blog post: CCA opinion analysis
Appellant’s brief
Appellee’s (Army Appellate Gov’t Div.) brief
Appellant’s reply brief
• Blog post: Argument preview

Wednesday, March 1, 2017, at 9:30 a.m.:

United States v. Erikson, No. 16-0705/AR (CAAFlog case page)

Issues:
I. Whether the military judge erred in excluding evidence that the victim previously made a false accusation of sexual contact against another soldier.

II. CMCR Judges Larss G. Celtnieks and Paulette V. Burton are not statutorily authorized to sit on the Army Court of Criminal Appeals.

III. Even if CMCR Judges Larss G. Celtnieks and Paulette V. Burton are statutorily authorized to be assigned to the Army Court of Criminal Appeals, their service on both courts violates the appointments clause given their newly attained status as superior officers.

Case Links:
ACCA opinion (summary disposition)
Appellant’s brief
Appellee’s (Army Appellate Gov’t Div.) brief
Blog post: Argument preview

Followed by:

United States v. Ahern, No. 17-0032/AR (CAAFlog case page)

Issue: Whether the lower court erred when it held that the prohibition against using an admission by silence provided by Mil. R. Evid. 304(a)(2) is triggered only “when the accused is aware of” an investigation contrary to the plain language of the rule.

Case Links:
ACCA opinion
• Blog post: The Army CCA interprets Mil. R. Evid. 304(a)(2)
Appellant’s brief
Appellee’s (Army Appellate Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Thursday, March 2, 2017, at 10 a.m.:

United States v. Rucker, No. 20140845

Issue: Whether the evidence is legally and factually insufficient to support a conviction as to any specification or charge.

This week at the AFCCA: The Air Force CCA will here oral argument in one case this week, on Thursday, March 2, 2017, at 10 a.m.:

United States v. Miller, No. 38922

Issues:
I. Whether the military judge erred by admitting text messages as a “fresh complaint” and a prior consistent statement.

II. Whether the acquittal under R.C.M. 917 of the words “on divers occasions” in Specifications 2 and 3 of the Charge rendered the subsequent verdict to those specifications ambiguous under United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003), thereby precluding this court from conducting its review under article 66(c).

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

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on March 24, 2017.

Update: The links are fixed.

The Coast Guard redesigned its website and, in the process, broke our links to the Coast Guard CCA’s website.

The new Coast Guard website is awful, emphasizing pictures and graphics over substance, and I can’t find any working links to the Coast Guard legal community’s pages.

If any reader has a working link to the Coast Guard CCA’s website, please post it in the comments or send me email at zack@caaflog.com

Thanks.

Here is CNN’s coverage of the military judge’s denial of SGT Bergdahl’s motion to dismiss the charges against him based on President Ttump’s campaign trail comments calling Bergdahl a “traitor” and saying that he should be shot. Bergdahl, as you probably know and CNN reports, “faces charges of desertion and endangering fellow soldiers after he disappeared from his base in Afghanistan in June 2009 and was held in captivity by the Taliban until May 2014,” until a prisoner swap returned him to US custody. Here is CNN’s link to a copy of the 8-page decision from Colonel Nance, the judge in the case. 

A reader brought my attention to a recent article published in the Washington University Law Review.  In his article, Unraveling Unlawful Command Influence, 93 Wash. U. L. Rev. 1401 (2016), Professor Monu Bedi, of DePaul University College of Law, offers a comparative analysis of how the military and civilian jurisdictions handle allegations of prosecutorial misconduct and contrasts that with the approach that military courts take when a commander, as opposed to the prosecuting lawyer, is the person who has committed the misconduct.  In evaluating each of these scenarios, Professor Bedi plots them along a continuum that values “systemic integrity” on one end and “individual autonomy” on the other.

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CAAF decided the Marine Corps case of United States v. Rosario, __ M.J. __, No. 16-0424/MC (CAAFlog case page) (link to slip op.), on Wednesday, February 22, 2017. The court affirms the Navy-Marine Corps CCA’s consideration of facts supporting sexual assault allegations that resulted in acquittals in the court’s review of a conviction of sexual harassment, concluding that the facts that form the basis for both acquittals and convictions are permissible considerations during a CCA’s review of convictions.

Judge Sparks writes for a unanimous court.

Sergeant (E-5) Rosario was convicted contrary to his plea of not guilty, by a special court-martial composed of members with enlisted representation, of one specification of sexual harassment on divers occasions in violation of Article 92. Rosario was also charged with three unlawful touchings in violation of Articles 120 and 128, however he was acquitted of all of those offenses. The members sentenced Rosario to reduction to E-1 and a bad-conduct discharge.

The basis for the sexual harassment charge was, at least, a series of inappropriate comments that Rosario made to a female subordinate. On appeal Rosario asserted that the evidence was insufficient to sustain a conviction of sexual harassment. The NMCCA rejected this challenge, concluding that the touchings forming the bases of the other charges (of which Rosario was acquitted) were evidence “offered in support of two separately charged offenses” – the sexual harassment offense and the 120/128 offense –  and that under such circumstances “an acquittal on one may not be pleaded as res judicata of the other.” United States v. Rosario, No. 201500251, slip op. at 4 (N-M. Ct. Crim. App. Jan. 28, 2016) (link to slip op.) (marks and citation omitted).

CAAF then granted review of two issues:

I. Whether the lower court erred in conducting its Article 66(C), UCMJ, review by finding as fact allegations that supported charges of which Sgt Rosario was acquitted to affirm the findings and sentence.

II. Whether the military judge erred when he instructed the members, “If based on your consideration of the evidence, you are firmly convinced that the accused is guilty of the crime charged, you must find him guilty,” where such an instruction is in violation of United States v. Martin Linen Supply Co., 430 U.S. 564, 572-73 (1977) and there is inconsistent application between the services of the instructions relating to when members must or should convict an accused.

Today’s opinion makes relatively short work of the first issue, and summarily rejects the second in light of the court’s opinion in United States v. McClour, __ M.J. __ (C.A.A.F. Jan. 24, 2017) (CAAFlog case page).

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