CAAF decided the Air Force case of United States v. Hyppolite, II., 79 M.J. __, Nos.19-0119/AF & 19-0197/AF (CAAFlog case page) (link to slip op.), on August 1, 2019. Reviewing a military judge’s ruling under Military Rule of Evidence 404(b) that allowed the prosecution to use charged offenses as evidence that the accused acted pursuant to a common plan or scheme, a majority of the court finds no error and it affirms the findings and sentence.

Judge Maggs writes for the court, joined by all but Judge Ohlson, who dissents.

Staff Sergeant (E-5) Hyppolite was charged with five violations of Article 120 for allegedly sexually assaulting four other Airmen over a two-year period. The first three specifications alleged that Hyppolite touched three victims’ genitals while they were asleep; the last two specifications alleged non-consensual sexual acts with an intoxicated victim (who was not necessarily asleep) on one occasion. Hyppolite’s defense counsel moved to sever the first thee specifications from the last two, highlighting the different facts of each set of allegations. A military judge disagreed, ruling instead that “each specification is probative as to the other specifications on the issue of a common plan on the part of the accused.” Slip op. at 3 (marks omitted). Hyppolite then elected to be tried by a military judge alone, and he was convicted of four of the five specifications: two of the alleged touchings of sleeping victims, and both of the alleged acts with the intoxicated victim. The military judge sentenced Hyppolite to confinement for seven years, reduction to E-1, total forfeitures, and a dishonorable discharge.

On appeal, a three-judge panel of the Air Force CCA reversed one of Hyppolite’s convictions (involving a sleeping victim) for factual insufficiency. It also held that the military judge’s common plan or scheme ruling was error because evidence of the alleged acts with the sleeping victims did not support the existence of a common plan for the alleged acts with the intoxicated victim, and vice versa. But the CCA concluded that the error was harmless with respect to the remaining convictions (one of the sleeping victim allegations, and both of the intoxicated victim allegations).

CAAF granted review of the CCA’s finding of harmlessness and then the Judge Advocate General of the Air Force cross-certified a challenge to the CCA’s finding of error:

Granted issue: Whether the military judge’s erroneous admission of evidence regarding Specifications 1, 2, and 3 as a common plan or scheme for Specifications 4 and 5 was harmless.

Certified issue: Did the Air Force Court of Criminal Appeals err when it found the military judge abused his discretion by ruling that the evidence regarding Specifications 1, 2, and 3 could be considered as evidence of a common plan or scheme for Specifications 4 and 5.

Judge Maggs’ majority opinion answers only the certified issue, concluding that two military judges – one who ruled on the motion and another who presided over the trial – did not abuse their discretion because “it was within the discretion of the two military judges to find a common plan or scheme based on the common factors among the specifications.” Slip op. at 11. Judge Ohlson, however, finds both error and prejudice, and would reverse the two convictions involving the intoxicated victim.

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In the wake of the acquittal of Navy Special Operations Chief Edward Gallagher of the most serious charges against him (noted here), the Secretary of the Navy has revoked 10 awards given to the prosecution team in connection with the case. Reuters reports here that:

The move coincided with tweets from President Donald Trump repeating his support for Special Operations Chief Edward Gallagher and directing Spencer to rescind awards that were “ridiculously given” to prosecutors who, according to Trump, “lost the case” against Gallagher. . . .

A total of 10 military awards – seven Navy Achievement Medals and three letters of commendation – recently given to military prosecutors for their work on the Gallagher case were revoked, Navy officials told Reuters. Those officials said they did not know if Spencer acted on Trump’s orders or took action before the president’s tweets.

In perhaps-related other news, the Navy Times reports here that yesterday the Chief of Naval Operations took control of companion cases and ordered a review of the leadership and performance of the Navy JAG Corps:

On Monday CAAF docketed this certification by the Judge Advocate General of the Air Force:

No. 19-0398/AF. U.S. v. Chase J. Easterly. CCA 39310. Notice is given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 on this date, on the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN FINDING THAT THE MILITARY JUDGE COMMITTED PLAIN AND PREJUDICIAL ERROR BY FAILING TO INSTRUCT THE PANEL SUA SPONTE REGARDING THE IMPACT OF A PUNITIVE DISCHARGE ON APPELLEE’S POTENTIAL PERMANENT DISABILITY RETIREMENT, WHERE APPELLEE DID NOT REQUEST SUCH AN INSTRUCTION.

Appellant will file a brief under Rule 22(b) in support of said certificate on or before the 28th day of August, 2019.

The AFCCA’s opinion is available here. The appellee, Senior Airman (E-4) Easterly, was convicted of attempted premeditated murder and sentenced to confinement for seven years, total forfeitures, reduction to E-1, and a dishonorable discharge. Prior to trial, however, Easterly was diagnosed with schizophrenia that was found to have been aggravated by his military service and warranted a medical retirement with a 100% disability rating. Those facts were presented during the sentencing phase of the court-martial, but the defense did not request an associated instruction to the members regarding retirement and the military judge did not give such an instruction. The prosecution, however, requested that the members be instructed to disregard any collateral consequences of the conviction, and the members were so instructed. Considering those facts, two out of three judges of a panel of the CCA found that it was plain error for the military judge to fail to give an instruction sua sponte, and the CCA set aside the sentence and authorized a sentence rehearing.

Next, on Tuesday CAAF granted review in this Air Force case:

No. 19-0230/AF. U.S. v. Jordan R. Muller. CCA 39323. 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 granted on the following issues:

I. WHETHER RULE 15.5 OF THE AIR FORCE COURT OF CRIMINAL APPEALS RULES OF PRACTICE AND PROCEDURE IS INVALID BECAUSE IT CONFLICTS WITH THE UNIFORM CODE OF MILITARY JUSTICE, THIS COURT’S PRECEDENT, THE JOINT COURTS OF CRIMINAL APPEALS RULES OF PRACTICE AND PROCEDURE, THE RECENTLY UPDATED JOINT RULES OF APPELLATE PROCEDURE, AND THE PRIOR AND CURRENT APPELLATE RULES OF THE OTHER SERVICE COURTS OF CRIMINAL APPEALS.

II. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS DEPRIVED APPELLANT OF HIS DUE PROCESS RIGHT TO RAISE ISSUES ON APPEAL WHEN IT DENIED HIS TIMELY REQUEST TO FILE A SUPPLEMENTAL BRIEF ON ISSUES ARISING DURING REMAND PROCEEDINGS.

III. WHETHER A COURT OF CRIMINAL APPEALS MUST REQUIRE CERTIFICATES OF CORRECTION TO BE ACCOMPLISHED, VICE ACCEPTING DOCUMENTS VIA A MOTION TO ATTACH, WHEN IT FINDS A RECORD OF TRIAL TO BE INCOMPLETE DUE TO A MISSING EXHIBIT.

Briefs will be filed under Rule 25.

The AFCCA’s opinion is here, but it is a summary disposition. I can, however, report that the first two issues involve an AFCCA rule (Rule 15.5) that gives an appellant only 10 days to move to file a supplemental brief after a case is remanded for anything other than a rehearing, and that the third issue was raised by the Government Division (in its response to the appellant’s petition) as a challenge to the AFCCA’s action that denied the Government Division’s motion to attach a missing prosecution exhibit (the AFCCA instead remanded the case for a certificate of correction under R.C.M. 1104(d), leading to the situation addressed in the first two issues).

CAAF decided the Army case of United States v. Frost, 79 M.J. __, No. 18-0362/AR (CAAFlog case page) (link to slip op.), on July 30, 2019. Reviewing a military judge’s admission (over a defense objection) of a prior consistent statement by an alleged child victim of rape, a majority of CAAF finds error because the statement was made after the improper influence asserted by the defense. Considering that error in the context of otherwise-weak evidence of guilt, a smaller majority of the court concludes that it was not harmless. Accordingly, CAAF reverses the decision of the Army CCA and the findings and sentence, and it authorizes a rehearing.

Judge Ohlson writes for the court, joined by Chief Judge Stucky and Judge Ryan. Judge Sparks concurs in the finding of error but dissents from the finding of prejudice. Judge Maggs dissents.

Specialist (E-4) Frost was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of rape of a child. The child was Frost’s daughter – identified by the initials DF – born in 2007. Frost and DF’s mother – Ms. Moore – separated before DF was born, and they fought over custody of DF after she was born. A state court ultimately awarded custody to Ms. Moore (who lived in Georgia), with Frost allowed scheduled visits. One such visit occurred in the summer of 2013, in Texas (where Frost was stationed). Approximately one month after the visit, Ms. Moore and her boyfriend (Mr. Casey) reported to law enforcement that while sitting in the car “DF spontaneously made a statement to the effect of, ‘Daddy stuck his penis in my mouth.'” Slip op. at 2.

DF subsequently underwent a forensic interview in March 2014, in which she did not disclose any abuse by Frost. A second interview, in November 2014, also did not result in any allegation of abuse. Nevertheless, Frost was charged and an Article 32 preliminary hearing was conducted in April 2015. DF testified by telephone during the hearing but, again, did not disclose any abuse by Frost. After the hearing, Ms. Moore took DF to five sessions with a psychotherapist, Dr. Landry, in August 2015. According to Dr. Landry, DF told her that Frost “tried to put his pee-wee in my mouth.” Slip op. at 3. The following month, however, DF was interviewed by the prosecutors by telephone and she “once again stated that nothing sexual happened during the summer of 2013 with Appellant and that she did not tell her mother that anything did happen.” Slip op. at 3-4. “The court-martial proceeded nonetheless.” Slip op. at 4.

DF testified at trial in 2016 and said “that nearly three years earlier ‘my dad put his pee-pee in my mouth.’” Slip op. at 4. The defense impeached DF with her prior inconsistent statements (her earlier denials of abuse). The prosecution then called Dr. Landry, and the military judge allowed Dr. Landry to testify about DF’s September 2015 allegation of abuse on the basis that it was admissible under the medical diagnosis or treatment exception to the hearsay rule, Mil. R. Evid. 803(4). The defense objected but the Army CCA affirmed the military judge’s ruling admitting Dr. Landry’s testimony, and CAAF denied review of that issue. Slip op. at 4 n.3.

The prosecution also called Ms. Moore and Mr. Casey, both of whom testified that DF made the allegation of abuse in August 2013. The defense objected to that too, but the military judge admitted the statement (as repeated by both witnesses) as non-hearsay based on the rule for prior consistent statements, Mil. R. Evid. 801(d)(1)(B). In so doing, the military judge concluded that the defense claimed that Dr. Landry had improperly influenced DF, making DF’s statements to Ms. Moore and Mr. Casey admissible because they pre-dated Dr. Landry’s influence. The Army CCA affirmed that decision in a footnote, and CAAF granted review to determine:

Whether the military judge erred in admitting hearsay statements as prior consistent statements under Mil.R.Evid. 801(d)(1)(B)(i) where the defense theory posited the improper influence or motive preceded the allegedly consistent statements.

A majority of the court finds that the military judge was wrong because the “defense’s sole theory and line of approach . . . was that Ms. Moore, motivated by a desire to obtain sole custody of her children, exerted an improper influence on DF prior to DF’s August 24, 2013, remark [in the car].” Slip op. at 11.

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CAAF decided the Army case of United States v. English, 79 M.J. __, No. 19-0050/AR (CAAFlog case page) (link to slip op.), on July 30, 2019. Considering a conviction of forcible rape where the charged force was the accused grabbing the alleged victim’s head with his hands, CAAF holds that because the Army CCA found the evidence insufficient to prove that specific force, the CCA was prohibited from affirming the conviction on an alternative basis. CAAF reverses that conviction and remands the case to the Army CCA for sentence reassessment.

Judge Ryan writes for a unanimous court.

Specialist (E-4) English was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of numerous offenses in connection with “a brutal and protracted sexual altercation with his ex-wife,” and he was sentenced to confinement for 23 years, reduction to E-1, and a dishonorable discharge. Slip op. at 2. One of the convictions was of the offense of forcible rape in violation of Article 120(a)(1) (2012). That offense has two elements: (1) that the accused committed a sexual act upon another person, and (2) that the accused did so with unlawful force. See ¶ 45.b.(1), Part IV, MCM (2016 ed.).

English was charged with committing the sexual act “by unlawful force to wit: grabbing her head with his hands.” (slip op. at 3 (quoting record). English’s ex-wife testified that English committed the sexual act, but she testified that she could not recall whether he grabbed her at all. Nevertheless, in closing arguments the prosecution “repeatedly emphasized that Appellant accomplished the penetration by grabbing the victim’s head with his hands,” while the defense argued “against th[at] characterization.” Slip op. at 3. The military judge convicted English as charged.

On review, in a published opinion that primarily addressed the military judge’s erroneous admission of a hearsay statement as a recorded recollection under Mil. R. Evid. 803(5), the Army CCA found that there was no evidence to prove that English committed the sexual act by grabbing his ex-wife’s head with his hands. The CCA did, however, find that “there was sufficient evidence to prove appellant committed the sexual act by unlawful force,” and so “the ACCA excepted the words ‘to wit: grabbing her head with his hands’ from the charge sheet and affirmed Appellant’s conviction based on the remaining language.” Slip op. at 3-4. CAAF granted review to determine whether the CCA may do that, with the following issue:

Whether the Army Court of Criminal Appeals can find the unlawful force, as alleged, factually insufficient and still affirm the finding based on a theory of criminality not presented at trial.

“The answer,” explains Judge Ryan, “is clearly no.” Slip op. at 2.

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This week at SCOTUS: As noted here, the Solicitor General filed a petition for certiorari in United States v. Briggs, No. 19-108, on Jul. 22. The response is due on Aug. 21.

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

• United States v. Briggs, No. 19-108 (pet. filed Jul. 22; resp. due Aug. 21)
• United States v. Collins, No. 18A1257, (2nd ext. of time to file pet. granted to Aug. 9)
• Richards v. Donovan, et al., No. 19-55 (pet. filed Jun. 8; resp. waived Jul. 17)
• Livingstone v. United States, No. 19-5256 (pro se pet. docketed Jul. 19; resp. due Aug 19)

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.

This week at the ACCA: The Army CCA’s website shows no scheduled oral arguments.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on August 8, 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.

There is a big distinction between merely forfeiting an objection at trial and affirmatively waiving the issue. As Judge Ohlson stated in his dissent in United States v. Hardy, 77 M.J. 438 (CAAF 2018) (CAAFlog case page):

Waiver is serious business. It extinguishes rights of an accused, forever banishing waived legal issues from the purview of any appellate court.

In contrast, if a court finds that the accused merely “forfeited” their opportunity to object (as opposed to affirmatively waiving the objection), then that court may correct that error on appeal if the error is “plain.”

The distinction between waiver and forfeiture has been a topic of frequent discussion on this blog. Indeed, “waiver mania” was the #3 Military Justice Story of 2017. Then, the #5 Military Justice Story of 2018 was the President’s effort to “calm waiver mania” by amending the language of Rule for Courts-Martial 905(e) and 919(c) to make clear an intent to apply forfeiture rather than waiver to errors the accused could have objected to prior to trial, but didn’t.

The Air Force JAG Corps’ online journal, The Reporter, recently published an article by retired Air Force Colonel James A. Young entitled, “R.C.M. 905(e)’s New, Incomprehensible Standard.” Readers may recognize Colonel Young as the Senior Legal Advisor to CAAF Chief Judge Scott W. Stucky.

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The Seventh Annual Joint Appellate Advocacy Training (JAAT) is scheduled for September 10-12, 2019, at Rosenthal Theater, Joint Base Myer-Henderson Hall, in Arlington, VA.

Yesterday’s daily journal contains this summary disposition:

No. 19-0345/AF. U.S. v. Humphrey Daniels III. CCA 39407. On consideration of the issue certified by the Judge Advocate General of the Air Force, __ M.J. __ (C.A.A.F. Jun. 19, 2019), Appellant’s brief, and Appellant’s motion for a summary disposition, motion to suspend this Court’s rules, and motion to dispense with the requirement to file a joint appendix all filed June 19, 2019, and in light of United States v. Mangahas, 77 M.J. 220 (C.A.A.F. 2018), it is ordered that the motions are granted, and the certified issue is answered in the affirmative, and the decision of the United States Air Force Court of Criminal Appeals is therefore affirmed.

The Air Force CCA’s opinion is available here.

Petition available here. The question presented is:

Whether the Court of Appeals for the Armed Forces erred in concluding—contrary to its own longstanding precedent—that the Uniform Code of Military Justice allows prosecution of a rape that occurred between 1986 and 2006 only if it was discovered and charged within five years.

Earlier this year, in United States v. Briggs, 78 M.J. 289 (C.A.A.F. Feb. 22, 2019) (CAAFlog case page), CAAF applied last term’s decision in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), and held that the 2006 amendment to the statute of limitations for the offense of rape was not retroactive. Accordingly, CAAF reversed Briggs’ rape conviction from 2014 based on an allegation dating to 2005.

CAAF’s clarification of the statute of limitations for rape in Mangahas was the #3 Military Justice Story of 2018.

In Briggs, the Air Force Appellate Government Division argued to CAAF that “Congress, in passing the 2006 amendment, intended not to change the law, but rather to codify the holding of Willenbring and clarify the correct statute of limitations for rape.” Gov’t Div. Br. at 18 (emphases in original) (discussed here). CAAF explicitly rejected the argument for two reasons:

First, the 2006 amendment to Article 43(a), UCMJ, was not limited to rape; it also eliminated the previous five-year period of limitations for unpremeditated murder. Congress therefore did not intend the 2006 amendment simply to maintain the status quo. Second, even if Congress believed that the amendment was codifying existing law with respect to the statute of limitations for rape, that belief alone would not imply that Congress intended for the amendment to apply retroactively. In such circumstances, Congress would have had no reason to consider the issue of retroactivity. And if Congress did not actually decide to make the statute apply retroactively, then the presumption of non-retroactivity should control.

Briggs, 78 M.J. at 294.

The cert. petition repeats that argument, along with some others such as:

even assuming that Congress designed a statute of limitations for military rape that turns on whether capital punishment for that crime is constitutionally permissible, Congress correctly determined that the Constitution does not foreclose capital punishment for rape in the military context.

Pet. at 17. Additionally, the petition claims that:

Allowing the CAAF’s flawed construction of Article 43 to remain in place would subvert the military’s concerted effort to eradicate sexual assault, erode confidence in the military-justice system, and fuel the impression that “nothing will happen to the[] perpetrator” of military rapes, all of which could further deter sexual-assault reporting and ultimately undermine military effectiveness.

Pet. at 23-24 (quoting Response Systems Panel report at 60) (modification in original).

The petition also challenges CAAF’s decision in Mangahas – even though certiorari was not sought in that case – with the assertion:

The CAAF erred in United States v. Mangahas, 77 M.J. 220 (2018), by abandoning that longstanding construction [of the statute of limitations for rape].

Pet. at 11.

This week at SCOTUS: On Friday the Supreme Court docketed a pro se cert. petition in Livingstone v. United States, No. 19-5256, however the petition is not (yet) posted. Assuming it’s the same person, CAAF summarily affirmed the published decision of the Coast Guard CCA. United States v. Livingstone, 78 M.J. 619 (C.G. Ct. Crim. App. 2018) (available here), sum. aff’d, __ M.J. __ (C.A.A.F. Apr. 16, 2019).

In other news, the Solicitor General waived the right to respond to the cert. petition in Richards.

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

• United States v. Briggs, No. 18A1168 (2nd ext. of time to file pet. granted to Jul. 22)
• United States v. Collins, No. 18A1257, (2nd ext. of time to file pet. granted to Aug. 9)
• Richards v. Donovan, et al., No. 19-55 (pet. filed on Jun. 8; resp. waived Jul. 17)
• Livingstone v. United States, No. 19-5256 (pro se pet. docketed Jul. 19)

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.

This week at the ACCA: The Army CCA’s website shows no scheduled oral arguments.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on August 8, 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 granted review in two cases in Tuesday, both from the Army. The first case is:

No. 19-0158/AR. U.S. v. Malcolm R. Turner. CCA 20160131. 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 I ALLEGING AN ATTEMPTED KILLING FAILS TO STATE AN OFFENSE BECAUSE IT DOES NOT EXPLICITLY, OR BY NECESSARY IMPLICATION, ALLEGE THE ATTEMPTED KILLING WAS UNLAWFUL.

Briefs will be filed under Rule 25.

The CCA issued an unpublished decision (available here) that includes the following information:

the specification alleged that:

Appellant, did at or near Clarksville, Tennessee, on or about 1 January 2015, attempt to kill with premeditation, SPC CSG by means of shooting her with a loaded firearm and causing grievous bodily harm.

Appellant argues that the specification does not allege that the premeditated killing was unlawful. See Article 118(b)(1)(c), UCMJ; MCM (2012 ed.), pt. IV, ¶43.b. Appellant contends that servicemembers in the armed forces lawfully commit premeditated killings of enemy combatants on the battlefield. As such, a killing must be unlawful in order for it to be an offense under the UCMJ.

Slip op. at 13. The CCA rejected the claim, concluding that “the Specification of Charge I alleges words of criminality sufficient to inform appellant that he was charged with the offense of attempted premeditated murder,” and observing that “not since the Civil War has Clarksville, Tennessee been close to a combat zone where appellant might claim that an attempted premeditated killing of a fellow American soldier could have been lawful.” Slip op. at 15.

CAAF reviewed the need to explicitly allege words of criminality (in the context of Articles 133 and 134) in United States v. Reese, 76 M.J. 297 (C.A.A.F. 2017) (CAAFlog case page) (not addressed because case resolved on other grounds), and United States v. Voorhees, __ M.J. __, No. 18-0372/AF (C.A.A.F. 2019) (CAAFlog case page) (use of terms such as inappropriate or unprofessional found sufficient).

The second case is:

No. 19-0192/AR. U.S. v. Lamont S. Jessie. CCA 20160187. 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 issues:

I. WHETHER THE ARMY COURT ERRED BY CONSIDERING MILITARY CONFINEMENT POLICIES BUT REFUSING TO CONSIDER SPECIFIC EVIDENCE OF APPELLANT’S CONFINEMENT CONDITIONS.

II. WHETHER THE ARMY COURT CONDUCTED A VALID ARTICLE 66 REVIEW WHEN IT FAILED TO CONSIDER APPELLANT’S CONSTITUTIONAL CLAIMS.

III. WHETHER APPELLANT’S CONSTITUTIONAL RIGHTS WERE VIOLATED BY A CONFINEMENT FACILITY POLICY THAT BARRED HIM FROM ALL FORMS OF COMMUNICATION WITH HIS MINOR CHILDREN WITHOUT AN INDIVIDUALIZED ASSESSMENT DEMONSTRATING THAT AN ABSOLUTE BAR WAS NECESSARY.

Briefs will be filed under Rule 25.

The CCA issued an unpublished but en banc decision, available here.

The case challenges a confinement policy of the Joint Regional Confinement Facility (JRCF) at Fort Leavenworth, Kansas, whereby prisoners convicted of child sex offenses were prohibited from having any contact with children, including their own biological children. The appellant challenged the application of the policy to him as a denial of his First and Fifth Amendment rights. The policy was changed after the challenge was made.

A majority of the CCA concluded that consideration of the issue (raised in post-trial submissions) “is not an appropriate use of our Article 66(c) authority.” Slip op. at 1. A number of judges dissented, however, on the basis that “the majority adopts an unnecessarily restrictive view of Article 66(c),” and that “by failing to address the alleged error, the majority conducts a flawed review of sentence appropriateness and post-trial delay.” Slip op. at 22.

CAAF recently addressed the Article 66 power of the CCAs, affirming that the power is exceptionally broad, in United States v. Chin, 75 M.J. 220 (C.A.A.F. 2016) (CAAFlog case page) (CCA may grant relief for waived error), and United States v. Kelly, 77 M.J. 404 (C.A.A.F. 2018) (CAAFlog case page) (CCA may reduce mandatory minimum punitive discharge as inappropriate).

In a published decision issued yesterday and available here, a three-judge panel of the Army CCA affirms the findings and sentence in the Bergdahl case.

In 2009, then-Private First Class Bergdahl walked away from his combat outpost in Patika Province, Afghanistan, and was captured by the Taliban and held in captivity for nearly five years. He was recovered in a May 2014 trade for five Guantanamo Bay detainees. Ten months later, in March of 2015, Bergdahl (then a Sergeant) was charged with desertion with the intent to shirk important service and avoid hazardous duty in violation of Article 85(a)(2), and misbehavior before the enemy in violation of Article 99.

Bergdahl’s case made our top ten list two years in a row, as the #8 Military Justice Story of 2015 and 2016, and the processing of the case through the military justice system was bizarre: A protective order prohibited Bergdahl’s defense team from releasing information to the press before trial, Bergdahl confessed to desertion, his recorded conversations with filmmaker Mark Boal were the nucleus for season 2 of NPR’s Serial podcast (and Boal sought to avoid a subpoena), Bergdahl’s defense team went 0-7 at CAAF, and motions to dismiss were filed over and over and over again.

Eventually, however, Sergeant Bergdahl pleaded guilty to both offenses without a pretrial agreement. Then, in sentencing, the defense specifically requested that the military judge sentence Bergdahl to a dishonorable discharge, and the CCA’s opinion noted that Bergdahl “made clear to the court that he believed the appropriate punishment was a dishonorable discharge.” Slip op. at 6. The military judge sentenced Bergdahl to reduction to E-1, forfeiture of $1,000 pay per month for 10 months, and a dishonorable discharge.

During that time, Bergdahl’s case captured the attention of the late Senator John McCain, and of then-candidate and later-President Donald Trump. Specifically, Senator McCain threatened hearings if Bergdahl received no punishment, and President Trump made numerous statements and tweets about the case, both before and after his election, including calling Bergdahl a traitor and calling the adjudged sentence “a complete and total disgrace to our Country and to our Military.” Slip op. at 6 (punctuation in original).

After Bergdahl was sentenced, the defense matters to the convening authority that included a post-sentencing tweet from President Trump but requested only that the case be sent to a different convening authority for possible clemency. The defense did not request sentence reduction. The convening authority did not transfer the case, and approved the findings and sentence as adjudged.

Nevertheless, having pleaded guilty, requested a dishonorable discharge, made clear that a dishonorable discharge was appropriate, and not made any request for clemency, on appeal Bergdahl “contend[ed that] unlawful command influence [UCI] was so endemic to [his] trial and the post-trial processing that [he] was denied a fair trial, or fair post-trial processing, or the appearance thereof.” Slip op. at 1.

The CCA rejected the claim in yesterday’s decision, with a majority of the panel reaching the unsurprising conclusion that, even considering the cumulative impact of all of the potential UCI:

the cumulative effect could not reasonably be perceived by a disinterested member of the public as improper command influence or otherwise indicative of an unfair proceeding.

Slip op at 18-19.

One judge dissents, however, writing that:

The active duty Lieutenant Colonel Judge Advocate Preliminary Hearing Officer, who presided over appellant’s extensive Article 32 proceeding, recommended referral of appellant’s case to a “straight special” court-martial not empowered to adjudge any discharge, and further recommended no jail time. Major General Dahl, who led a team of over twenty investigators and lawyers during the pretrial AR 15-6 investigation into appellant’s case likewise indicated that jail time would be “inappropriate.” In light of these recommendations from senior leaders who looked closely at appellant’s case, the military judge’s ultimate sentence was hardly a windfall, and it would have been conceivable that the convening authority could have provided additional clemency. Contrary to the majority’s holding, I find that UCI infected that critical post-trial process.

Slip op. at 28-29. Accordingly, and despite the fact that Bergdahl specifically requested a dishonorable discharge, agreed that a dishonorable discharge is appropriate, and did not request mitigation of the dishonorable discharge from the convening authority, the dissenting judge believes that:

Setting aside appellant’s dishonorable discharge would bring his current sentence into line with these two recommendations, and thus purge the taint of post-trial UCI that emanated from the President’s day-of-sentencing tweet.

Slip op. at 29.

This week at SCOTUS: A new petition for certiorari was filed in Richards v. Donovan, et al., No. 19-55. The petition is available here. The case (previously discussed here) involves an Air Force Lieutenant Colonel who was convicted of possession of child pornography and indecent acts with a child, and sentenced to confinement for 17 years, total forfeitures, and a dismissal. The Air Force CCA and CAAF affirmed the findings and sentence in United States v. Richards, No. ACM 38346, 2016 CCA LEXIS 285 (A.F. Ct. Crim. App. 2 May 2016) (unpub. op.), aff’d, 76 M.J. 365 (C.A.A.F. 2017), cert. denied, 138 S. Ct. 2707 (2018) (CAAFlog case page). Richards also filed numerous petitions for extraordinary relief with the military appellate courts, including petitions for habeas corpus that were denied on the basis of the Air Force Court’s holding that it lacks habeas jurisdiction in a case when direct review is over. Thereafter, CAAF dismissed a writ-appeal petition for lack of jurisdiction. Richards v. James, 78 M.J. 323 (C.A.A.F. 2019) (sum. disp.).

The case has a messy procedural history (with multiple petitions for extraordinary relief). In particular, there are three decisions (two orders and one opinion) on the Air Force CCA’s website addressing petitions for extraordinary relief. First, on October 19, 2018, the CCA denied a petition for a writ of mandamus in an unpublished decision. Richards v. James, No. 2017-04, 2018 CCA LEXIS 507 (A.F. Ct. Crim. App. Oct. 19, 2018) (available here). Then, on October 22, 2018, the CCA issued an order dismissing a habeas petition. Richards v. Wilson, No. 2018-07, 2018 CCA LEXIS 509 (A.F. Ct. Crim. App. Oct. 22, 2018) (available here). Finally, on December 7, 2018, the CCA issued an order dismissing a petition for a writ of mandamus (that seems to be based on the same underlying issue as the habeas petition). Richards v. Wilson, No. 2018-10, 2018 CCA LEXIS 562 (A.F. Ct. Crim. App. Dec. 7, 2018) (available here). As a result, there are three separate CCA docket numbers for petitions for extraordinary relief: 2017-04 (mandamus), 2018-07 (habeas), and 2018-10 (mandamus).

There are also multiple CAAF docket numbers. The only clear CAAF decision, however, is a summary disposition dismissing a writ-appeal petition for lack of jurisdiction. Richards v. James, No. 19-0093/AF, 78 M.J. 323 (C.A.A.F. 2019) (daily journal). According to CAAF’s daily journal, that writ-appeal was of the CCA’s action on the habeas petition (CCA No. 2018-07). I see no CAAF docket entries referencing the subsequent petition for mandamus (CCA No. 2018-10). It’s possible, however, that CAAF docket number 19-0166/AF – in which a motion for enlargement of time to file a writ-appeal was denied on February 6, 2019 – involves CCA No. 2018-10, even though CAAF’s daily journal associates that docket number with CCA No. 2018-07.

Richards’ cert. petition clearly references CAAF’s action on the habeas petition (78 M.J. 323, CAAF No. 19-0093/AF, CCA No. 2018-07), and it’s not clear that Richards filed a timely writ-appeal of the mandamus petition. Nevertheless, the body of the cert. petition challenges the CCA’s decision on the mandamus petition. The question presented is:

Can the Executive Branch divest an Article I military court of appeals of jurisdiction over an extraordinary writ brought under the All Writs Act, 28 U.S.C. § 1651(a), once jurisdiction has vested under the Uniform Code of Military Justice?

The Air Force CCA has held – seemingly in direct conflict with United States v. Denedo, 556 U.S. 904, 917 (2009) (rules of finality do not bar coram nobis jurisdiction) – that it lacks jurisdiction to grant extraordinary relief in a case that is final under Article 76. Sutton v. United States, 78 M.J. 537, 542 (A.F. Ct. Crim. App. 2018) (available here). Additionally, both the Air Force and the Army CCAs have held that they lack jurisdiction to grant habeas in a final case. See Chapman v. United States, 75 M.J. 598 (A.F. Ct. Crim. App. Feb. 18, 2016) (discussed here); Gray v. Belcher, 70 M.J. 646, 647 (Army Ct. Crim. App. 2012). CAAF seems to agree, as it held in United States v. Gray, 77 M.J. 5, 6 (C.A.A.F. 2017), that it does not have jurisdiction to entertain a request for coram nobis in a final case (discussed here and here). The Solicitor General later disagreed with CAAF’s finding of no jurisdiction (noted here).

In other news, the Solicitor General received a second extension of time to file a cert. petition in Collins.

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

• United States v. Briggs, No. 18A1168 (2nd ext. of time to file pet. granted to Jul. 22)
• United States v. Collins, No. 18A1257, (2nd ext. of time to file pet. granted to Aug. 9)
• Richards v. Donovan, et al., No. 19-55 (pet. filed on Jun. 8; resp. due Aug. 9)

This week at CAAF: CAAF has completed its oral argument schedule for the current term. The first argument of the 2019 term is scheduled for October 16, 2019.

This week at the ACCA: The Army CCA’s website shows no scheduled oral arguments.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on August 8, 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. Coleman, __ M.J. __, No. 19-0087/AR (CAAFlog case page) (link to slip op.), on July 10, 2019. Reviewing for multiplicity in a case involving convictions of attempted murder (with a firearm) and of willfully discharging a firearm under circumstances to endanger human life, CAAF finds that the convictions are not multiplicious because each offense contains an element that the other does not.

Judge Ohlson writes for a unanimous court.

A general court-martial composed of a military judge alone convicted Private First Class (E-3) Coleman of numerous offenses, including one specification of attempted murder in violation of Article 80 (Specification 1 of Charge I), and one specification of willfully discharging a firearm under circumstances to endanger human life in violation of Article 134 (Specification of Charge VII). Both convictions related to Coleman firing a handgun at a car containing another soldier, that soldier’s fiancé, and the fiancé’s three-year old daughter. The Army CCA affirmed those convictions and CAAF granted review of a single issue:

Whether Specification 1 of Charge VII is multiplicious with Specification 1 of Charge I, as they are part of the same transaction.

Furthermore, when it granted review, CAAF specifically ordered that briefs be filed on only the issue of multiplicity and not on the related concept of unreasonable multiplication of charges (noted here).

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