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

This week at CAAF: CAAF has completed its oral argument calendar for the term. A detailed list of this term’s cases is available on our October 2016 Term Page.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Monday, June 5, 2017:

United States v. Lazcano, No. 20150354

Issue: Whether appellant was denied his right to a fair and impartial panel in a sexual assault case where the panel president failed to disclose his recent allegation against a material defense witness regarding inappropriate conduct with a junior enlisted soldier.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on June 20, 2017.

This week at the CGCCA: I’m unable to access the Coast Guard CCA’s oral argument schedule.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on June 14, 2017.

It is sexual assault report card season for the Department of Defense, and the actual numbers reported don’t necessarily match the political rhetoric. And, the political rhetoric is, perhaps, particularly strident this season. That could be a concern given CAAF’s recent decision in United States v. Boyce, CAAF Dkt. No 16-0546/AF (CAAFlog case page).

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CAAF issued the following summary disposition in United States v. Brantley, __ M.J. __, No.17-0055/AR (CAAFlog case page), on Thursday, June 1, 2017:

No. 17-0055/AR. U.S. v. Mitchell L. Brantley. CCA 20150199. On further consideration of the granted issue (76 M.J. 62 (C.A.A.F. 2017)), the briefs of the parties, and oral argument, it is ordered that the decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals for a new review under Article 66, Uniform Code of Military Justice, 10 U.S.C. § 866 (2012), to evaluate the case in light of United States v. Sager, 76 M.J. 158 (C.A.A.F. March 21, 2017).

In United States v. Sager, 76 M.J. 158 (C.A.A.F. Mar. 21, 2017) (CAAFlog case page), reviewing the text of Article 120(b)(2), as incorporated by Article 120(d), CAAF concluded that the language “asleep, unconscious, or otherwise unaware” creates three separate theories under which an accused may be convicted. The court reversed the decision of the Navy-Marine Corps CCA that found that the language creates only a single theory of criminal liability, and remanded the case for further consideration.

Brantley challenged the legal sufficiency of the evidence that an alleged victim was unaware of a sexual touching in a case where the prosecution’s argument focused on the alleged victim’s impairment. I concluded my argument preview with the following observation:

Yet I think there is also a strong argument that CAAF should summarily reverse and remand to the CCA for further consideration in light of Sager. There the CCA can also determine – based on a proper understanding of the law – whether it is personally convinced of Brantley’s guilt beyond a reasonable doubt (the test for factual sufficiency; a review available only at the CCA).

With a published decision in LK v. Acosta & Sanchez (United States v. Sanchez), __ M.J. __ (A. Ct. Crim. App. May 24, 2017) (link to slip op.), a three-judge panel of the Army CCA grants a petition for a writ of mandamus for an alleged victim under Article 6b, reversing a military judge’s ruling that ordered the alleged victim’s mental health records produced for an in camera review.

But while beginning its decision with the observation that the Rule “gives unclear guidance to military judges,” slip op. at 1, the CCA reaches two dubious conclusions that make things worse.

Analyzing the exception to the privilege for “evidence of child abuse or of neglect, or in a proceeding in which one spouse is charged with a crime against a child of either spouse,” Mil. R. Evid. 513(d)(2), the CCA interprets the first clause to apply only to inculpatory (and specifically not to exculpatory) evidence, and the second clause to apply only to the admission of evidence (and not to its production pursuant to an order from the court-martial).

They are puzzling conclusions that make a straightforward exception very confusing.

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CAAF decided the Army case of United States v. Hendrix, __ M.J. __ No. 16-0731/AR (CAAFlog case page) (link to slip op.), on Thursday, June 1, 2017. Concluding that a voice lineup was so flawed as to render the result meaningless, CAAF finds that admission of evidence of the lineup caused prejudice because it was important for the prosecution. The court reverses the appellant’s conviction of sexual abuse of a child, authorizing a rehearing.

Judge Ohlson writes for a unanimous court.

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Last week CAAF granted review of an interesting pair of issues in an Air Force case with an odd factual background:

No. 17-0347/AF. U.S. v. Robert L. Honea III. CCA 38905. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

I. IMMEDIATELY BEFORE THE DEFENSE RESTED ITS CASE, THE MILITARY JUDGE INVITED THE PARTIES’ ATTENTION TO R.C.M. 910, AND DIRECTED THE DEFENSE TO PROVIDE THE MILITARY JUDGE WITH A DRAFT SPECIFICATION OF ASSAULT CONSUMMATED BY A BATTERY. DID THE LOWER COURT ERR WHEN IT HELD THAT THE DEFENSE’S COMPLIANCE WITH THE MILITARY JUDGE’S DIRECTIVE CONSTITUTED A DE FACTO DEFENSE REQUEST TO MODIFY THE SPECIFICATION PURSUANT TO R.C.M.603 WHERE THERE IS NO EVIDENCE THAT EITHER THE DEFENSE OR THE CONVENING AUTHORITY WERE AWARE THE CHARGE WAS BEING AMENDED PURSUANT TO R.C.M. 603?

II. THE MILITARY JUDGE DISMISSED SPECIFICATION 2 OF CHARGE II, ABUSIVE SEXUAL CONTACT BY CAUSING BODILY HARM, FOR FAILURE TO STATE AN OFFENSE, BUT SHE ALLOWED THE GOVERNMENT TO PROCEED TO TRIAL ON THE PURPORTED LESSER INCLUDED OFFENSE OF ASSAULT CONSUMMATED BY A BATTERY. DID THE MILITARY JUDGE ERR?

Briefs will be filed under Rule 25.

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CAAF decided the Air Force case of United States v. Shea, __ M.J. __, No. 16-0530/AF (CAAFlog case page) (link to slip op.), on Tuesday, May 30, 2017. Concluding that an appellant has no right to a CCA panel on remand that is composed of the same judges who considered the case on initial review, CAAF finds that there was no error in the changed composition of the panel in this case, and also that there is no evidence of unlawful influence in the circumstances leading to that change. The court affirms the decision of the Air Force CCA that reversed one of the convictions but affirmed the sentence as approved by the convening authority.

Judge Sparks writes for a unanimous court.

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Here is a copy of a letter dated April 26, 2017, in which the Commanding Officer, Navy and Marine Corps Public Health Center, reported three false positive results for methamphetamine at the Navy Drug Screening Laboratory, Great Lakes (NDSL-GL):

On 13 April 2017. NDSL-GL discovered a specimen was incorrectly reported positive for methamphetamine on 11 April 2017. During confirmatory testing it was determined that the false positive specimen was co-processed with a batch rejected due to cross-contamination generated from a specimen that contained a very high methamphetamine concentration. As a result. a retest was conducted that revealed no evidence of methamphetamine in the service member’s urine. The positive report was withdrawn and the submitting command notified of the error.

Sadly, this wasn’t an isolated problem. An investigation revealed:

two additional contaminated specimens were identified: one was not reported as positive due to a subsequent negative intermediate screening result, and the second was reported on 7 June 2016 for an Army Reserve member. The reported result was discovered on 22 April 2017. The positive report was withdrawn and the submitting command and the Army Drug Testing Program Office were notified of the false positive report. The Service Member had not yet been separated.

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

This week at CAAF: CAAF has completed its oral argument calendar for the term. A detailed list of this term’s cases is available on our October 2016 Term Page.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on June 5, 2017.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on June 20, 2017.

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

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

Judge Diaz and Judge Wynn were in the majority in Int’l Rfugee Assistance v. Trump. Opinion here

CAAF decided the Air Force case of United States v. Oliver, __ M.J. __, No. 16-0484/AF (CAAFlog case page) (link to slip op.), on Wednesday, May 24, 2017. Finding forfeiture (and not waiver) in the absence of objection to the military judge considering wrongful sexual contact as a lesser included offense of abusive sexual contact, CAAF concludes that wrongful sexual contact is not a lesser included offense of abusive sexual contact but the conviction may stand nevertheless because there was no prejudice to the defense in this case. CAAF affirms the finding of guilty and the decision of the Air Force CCA.

Judge Sparks writes for the court joined by all by Judge Stucky, who concurs in the result but would have found the error was waived.

Senior Airman Oliver was tried on numerous charges by a general court-martial composed of a military judge alone. One charge alleged abusive sexual contact by placing in fear in violation of Article 120(h) (2006) in that Oliver – who was at the time a Staff Sergeant assigned as a training instructor at Lackland Air Force Base – groped a female trainee “by placing her in fear of an impact on her military career through the use and abuse of [his] military rank, position, and authority.” Slip op. at 2 (quoting charge sheet). Oliver’s defense was that the touching occurred but was consensual.

The military judge acquitted Oliver of abusive sexual contact by placing in fear and instead convicted him of wrongful sexual contact, which occurs when:

Any person subject to this chapter who, without legal justification or lawful authorization, engages in sexual contact with another person without that other person’s permission. . .

Article 120(m) (2006). The military judge notified both sides that he was going to consider this potential lesser included offense in his deliberations and Oliver’s defense counsel did not object. CAAF granted review to determine:

Whether wrongful sexual contact was a lesser-included offense of abusive sexual contact.

In yesterday’s opinion, Judge Sparks grapples with the defense failure to object but ultimately applies last term’s decision in United States v. Riggins, 75 M.J. 78 (C.A.A.F. Jan. 7, 2016) (CAAFlog case page), to hold that wrongful sexual contact is not a lesser included offense of abusive sexual contact. However, because Oliver’s “theory throughout the court-martial was that [the alleged victim] consented to the sexual activity. . . there is nothing to indicate material prejudice to Appellant’s substantial rights” to notice, and so the conviction is affirmed. Slip op. at 7.

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Audio of yesterday’s oral argument at CAAF is available at the following link:

United States v. Chikaka, 16-0586/MC (CAAFlog case page): Oral argument audio.

CAAF decided the Army case of United States v. Tucker, __ M.J. __, No. 17-0160/AR (CAAFlog case page) (link to slip op.), on Wednesday, May 23, 2017. With a per curiam opinion issued just thirteen days after oral argument, the court explains that the term neglects in Article 134 does not mean negligence, rejecting the published decision of the Army CCA that found that the term states a negligence standard. CAAF reverses the CCA’s decision and remands for a new Article 66 review “to evaluate this case in light of Elonis v. United States, 135 S. Ct. 2001 (2015), and United States v. Haverty, 76 M.J. 199 (C.A.A.F. 2017) [CAAFlog case page].”

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CAAF decided the Air Force case of United States v. Boyce, __ M.J. __, No. 16-0546/AF (CAAFlog case page) (link to slip op.), on Monday, May 22, 2017. A deeply-divided court concludes that the conduct of senior Air Force officials created an appearance of unlawful command influence (UCI) in this case. And while the court finds no prejudice to Boyce, the majority “conclude[s] that an objective, disinterested observer with knowledge of all the facts would harbor a significant doubt about the fairness of the court-martial proceedings.” Slip op. at 17. As a remedy CAAF sets aside Airman (E-2) Boyce’s convictions of the rape and battery of his wife, authorizing a rehearing.

Judge Ohlson writes for the court, joined by Chief Judge Erdmann and Judge Sparks. Judge Stucky and Judge Ryan dissent, both writing separately.

CAAF reviewed a single issue:

The Chief of Staff of the Air Force advised the convening authority that, unless he retired, the Secretary of the Air Force would fire him. Was the convening authority’s subsequent referral of charges unlawfully influenced by the threat to his position and career?

The convening authority at issue was Air Force Lieutenant General Craig Franklin, whose exercise of command discretion under Article 60(c) to set aside the sexual assault conviction of Air Force Lieutenant Colonel James Wilkerson in 2013 was our #5 Military Justice Story of 2013. After Franklin acted in the Wilkerson case, and after he ordered the pretrial dismissal of charges in another sexual assault case (that eventually went to trial and resulted in an acquittal), he referred Airman Boyce’s case for trial by general court-martial.

The briefs explained that numerous subordinates recommended that Franklin make that referral decision, including Boyce’s Squadron Commander, the Staff Judge Advocate to the Special Court-Martial Convening Authority, the Special Court-Martial Convening Authority himself, and Lt Gen Franklin’s Staff Judge Advocate. Nevertheless, Airman Boyce’s defense asserted at trial, on appeal at the Air Force CCA, and finally to CAAF that the referral decision was the product of unlawful influence. CAAF’s five judges are unanimous in their rejection of this claim of actual influence. But a bare majority of the court “deem[s] the totality of the circumstances in this case to be particularly troubling and egregious,” slip op. at 17, and “conclude[s] that the appearance of unlawful command influence in this case cannot go unaddressed,” slip op. at 18.

Leading this majority, Judge Ohlson provides a comprehensive review of CAAF’s UCI jurisprudence, meticulously differentiating between “actual unlawful command influence and the appearance of unlawful command influence.” Slip op. at 6 (emphases in original). He explains that:

[U]nlike actual unlawful command influence where prejudice to the accused is required, no such showing is required for a meritorious claim of an appearance of unlawful command influence. Rather, the prejudice involved in the latter instance is the damage to the public’s perception of the fairness of the military justice system as a whole and not the prejudice to the individual accused.

Slip op. at 10. The dissenters, however, strongly disagree with this standard, though they clearly disapprove of the actions of Air Force officials that brought this issue before CAAF.

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This week at SCOTUS: The conference on the cert. petition in Sterling was rescheduled. A combined reply brief was filed in Dalmazzi and Cox (available here). The petition for a rehearing was denied in Howell (noted here).

A cert. petition was filed in Ortiz (available here).

An application for an extension of time to file a cert. petition was filed in Bartee v. United States, No. 16A1135. In United States v. Bartee, 76 M.J. 141 (C.A.A.F. Mar. 15, 2017) (CAAFlog case page), a majority of CAAF concluded that there was no systemic exclusion of court-martial members on the basis of rank despite the fact that the convening order duplicated an earlier order that was found to have systemically excluded.

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

This week at CAAF: CAAF will hear the final oral argument of the term on Tuesday, May 23, 2017, at 9:30 a.m.:

United States v. Chikaka, 16-0586/MC (CAAFlog case page)

Issues:
I. Where the military judge admitted on the merits a campaign plan to “fully operationalize the Commandant’s guidance” from the Heritage Tour, and then during sentencing admitted a picture of the Commandant and allowed Appellant’s commanding officer to testify that it was important for the members to adjudge a harsh sentence, did the lower court err in failing to find evidence of unlawful command influence sufficient to shift the burden to the Government to disprove unlawful command influence in this case?
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.

Case Links:
NMCCA oral argument audio
NMCCA opinion
Appellant’s brief
Appellee’s (Navy-Marine Corps App. Gov’t Div.) brief
Appellant’s brief
Blog post: Argument preview

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Wednesday, May 24, 2017, at 12:45 p.m.:

United States v. Close, No. 20140984

Issue: Whether trial defense counsel were ineffective by failing to move to suppress all of the evidence seized and subsequently examined from appellant’s off-post residence as an unreasonable search and seizure.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

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

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.