This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court.

This week at CAAF: The next scheduled oral argument at CAAF is on February 25, 2015.

This week at the ACCA: The Army CCA will hear oral argument in two cases this week:

Wednesday, February 18, 2015, at 3:30 p.m., at Baylor Law School in Waco, Texas:

United States v. Sneed,  No. 20131062

Issue: Whether the military judge abused his discretion by accepting Private Sneed’s plea [of guilty] to kidnapping in violation of clause[s] one and two, Article 134, UCMJ, when the holding of Specialist BG was solely a means of force to take her debit card without her consent.

Thursday, February 19, 2015, at 1 p.m., at Fort Hood, Texas:

United States v. Evans, No. 20130647

Issue: Whether the military judge abused his discretion by denying the defense motion to suppress because the Government obtained a statement from 1LT Evans in violation of Article 31, UCMJ.

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Richards, No. 38346, on Tuesday, February 17, 2015, at 10 a.m.

Update (February 17, 2015): Due to Joint Base Andrews being closed for the heavy snowfall, oral argument at the Air Force Court of Criminal Appeals in the case of United States v. Richards, No. 38346, has been rescheduled to Wednesday, February 18, 2015, at 1000 hours. Thanks to the reader who sent us this update.

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

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

The past few years presented an almost unrelenting stream of child pornography issues affecting military justice. CAAF’s decision in United States v. Barberi, 71 M.J. 127 (C.A.A.F. 2012) (CAAFlog case page), regarding what happens when some of the images supporting a child pornography conviction aren’t actually child pornography, is still somewhat unsettled, as this term CAAF is considering both a granted and a certified issue in United States v. Piolunek, No.s 14-5006/AF & 14-0283/AF (CAAFlog case page).

Additionally, various cases addressed whether certain images are child pornography, such as United States v. Rapp, No. 201200303 (N-M. Ct. Crim. App. Apr. 30, 2013) (discussed here); United States v. Blouin, 73 M.J. 694 (A. Ct. Crim. App. May 28, 2014), rev. granted, __ M.J. __ (C.A.A.F. Oct. 23, 2014) (CAAFlog case page) (and related cases discussed here); and United States v. Lang, No. 20140083 (A. Ct. Crim. App. Oct. 31, 2014) (discussed here).

Another set of recent cases considered other imagery of minors, such as United States v. Warner, 73 M.J. 1 (C.A.A.F. Dec. 6, 2013) (CAAFlog case page); and United States v. Moon, 73 M.J. 382 (C.A.A.F. Aug. 11, 2014) (CAAFlog case page).

And, of course, the President enumerated child pornography offenses under Article 134 relatively recently: in 2011 (discussed here).

All of this makes court-martial prosecutions in child pornography cases a complex minefield of legal issues. This week’s Scholarship Saturday focuses on the intersection where that minefield meets another: The Confrontation Clause.

Child pornography forces us to re-confront and reevaluate the Confrontation Clause questions that arose in these recent cases, and it also raises new ones. Child pornography possession or distribution cases force the issue because the evidence in a child pornography prosecution consists of a range of evidence types, most of which include business records in the colloquial sense but many of which are not business records that meet the legal standard of the evidentiary exemption. These range from digital data collected routinely in the course of business and without targeting a particular user, to digital evidence collected, labeled, and assembled in preparation for prosecution. The first seems to be textbook business record exception; the second sounds like testimonial evidence that triggers a Confrontation Clause right. In practice, drawing the line between the two is not so clear, and the determinations raise fundamental questions that will apply to digital evidence standards more broadly.

Merritt Baer, Who is the Witness to an Internet Crime: The Confrontation Clause, Digital Forensics, and Child Pornography, 30 Santa Clara High Tech. L.J. 31, at 40-40 (2014) (available here).

CAAF decided the Army cases of United States v. Peters, __ M.J. __, No. 14-0289/AR (CAAFlog case page) (link to slip op.), and United States v. Castillo, __ M.J. __, No. 14-0457/AR (CAAFlog case page) (link to slip op.), on Thursday, February 12, 2015. Both cases presented issues questioning whether the military judges erred in denying defense challenges of members for cause based on implied bias. CAAF finds error in Peters and reverses the convictions and the decision of the Army CCA, but the court finds no error in Castillo and affirms the convictions and the CCA.

Chief Judge Baker writes for the court in both cases. Judges Stucky and Ryan both write separately; both dissent from the finding of error in Peters, and both concur with the result in Castillo.

CAAF has made it clear that “actual bias and implied bias are ‘separate legal tests, not separate grounds for a challenge.’” United States v. Nash, 71 M.J. 83, 88 (C.A.A.F. 2012) (CAAFlog case page) (quoting United States v. Armstrong, 54 M.J. 51, 53 (C.A.A.F. 2000)). But those separate tests receive different degrees of deference on review:

A military judge’s ruling on a challenge for cause is reviewed for an abuse of discretion. Military judges are afforded a high degree of deference on rulings involving actual bias. This reflects, among other things, the importance of demeanor in evaluating the credibility of a member’s answers during voir dire. By contrast, issues of implied bias are reviewed under a standard less deferential than abuse of discretion but more deferential than de novo. Observation of the member’s demeanor may inform judgments about implied bias; however, implied bias is reviewed under an objective standard, viewed through the eyes of the public.As this Court has often stated, at its core, implied bias addresses the perception or appearance of fairness of the military justice system.

United States v. Downing, 56 M.J. 419, 422 (C.A.A.F. 2002) (marks and citations omitted) (emphasis added). It is the application of this special deference that splits CAAF in Peters, and is at the heart of the court’s strained unanimity in Castillo.

Read more »

In United States v. Smith, No. 201400400 (N-M. Ct. Crim. App. Feb. 10, 2015) (per curiam) (link to slip op.), the NMCCA grants a Government interlocutory appeal of a military judge’s ruling that dismissed some of the charges with prejudice as a remedy for the Government’s loss of an apparently exculpatory surveillance video recordings of the following alleged incidents:

The appellee was a military police patrol supervisor. Lance Corporal (LCpl) JK4 was one of his subordinates and stood watch in the lobby of a secure law enforcement facility known as MDIA. On 28 October 2013, the appellee stopped at the lobby while LCpl JK, Cpl Pelligrino, and Cpl Toner were on duty. While there, the appellee is alleged to have approached the front desk, picked up a bottle of hand sanitizer, pointed it at LCpl JK and squirted some of the contents onto her shoulder, stating “Oops, just splooged on you.” This allegation, in part, formed the basis for sexual harassment and maltreatment charges against the appellee.

On 11 November 2013, the appellee arrived to conduct his rounds at the MDIA lobby. In the presence of Cpl Toner and LCpl JK, the appellee is alleged to have been unable to properly open a door and to have fallen asleep on the desk. This conduct forms the basis of a dereliction of duty charge against the appellee.

Slip op. at 2-3. The facility in which the appellee worked was under video surveillance. The video was reviewed by personnel who stated that the video “is not showing that someone approaching the front desk squirted hand sanitizer on any of the officers” and that the reviewer “did not see the appellee have difficulty opening the door.” Slip op. at 3. However, the video recordings were not preserved, and were destroyed after 30 days.

Independently of the video evidence, the appellee was interrogated and “admitted that he had ‘accidentally squirted’ hand sanitizer on JK and said ‘oops, just splooged on you.'” Slip op. at 4.

The defense moved to dismiss because of the Government’s failure to preserve the video recordings. The military judge found that the lost video recordings were “relevant, necessary, and essential to a fair trial” both for factual and impeachment purposes. Slip op. at 4. Then, in a ruling reminiscent of the Air Force case of United States v. Seton, Misc. Dkt. No. 2013-27 (A.F. Ct. Crim. App. Feb. 24, 2014) (discussed here), aff’d, 73 M.J. 346 (C.A.A.F. May 12, 2014) (summary disposition) (discussed here), the military judge dismissed the affected charges with prejudice. The Government appealed.

Read more »

Yesterday CAAF summarily affirmed the decisions of the Army CCA in seven trailer cases to United States v. Phillips, 74 M.J. 20 (C.A.A.F. Jan 6, 2015) (CAAFlog case page). The court denied relief to each appellant, just as it denied relief to Phillips.

Rather than republish the details, you can read them on CAAF’s daily journal here.

In an unpublished opinion in United States v. Hinojos, No. 201300305 (N-M. Ct. Crim. App. Jan. 27, 2015) (per curiam) (link to slip op.), a three-judge panel of the NMCCA reverses the appellant’s convictions for aggravated sexual assault of a child and abusive sexual contact of a child, both in violation of Article 120 (2006), after concluding that the Government’s DNA expert improperly testified that DNA contained on a buccal swab matched the DNA found in the victim’s underwear. The court concludes that this testimony was improper because:

The buccal swab itself was never offered as evidence and there was no evidence presented to establish that this buccal swab was actually obtained from the appellant.

Slip op. at 5. Further, the court finds:

In the appellant’s case, the Government failed to provide authenticity evidence for the buccal swab allegedly belonging to the appellant. The source and authenticity of the buccal swab was required before the expert could offer an opinion as to a DNA match involving that swab. Accordingly, we hold that the military judge, without such foundation evidence, abused his discretion in allowing the expert to testify that he tested the DNA found in HC’s underwear to the DNA from the buccal swab purportedly belonging to the appellant and that there was a match.

Slip op. at 6. The CCA then considers whether this error was prejudicial, concluding that it was prejudicial because appellant’s identity as the perpetrator was a hotly-contested issue in the case:

The record of trial depicts a case in which forensic evidence served as significant proof that a crime occurred and identified the appellant as the perpetrator. The Government has not met its burden of demonstrating that judicial error in admitting expert testimony without the underlying foundation did not have “a substantial influence on the findings.” McCollum, 58 M.J. at 342. Accordingly, the findings of guilty to the charge and two specifications are set aside.

Slip op. at 8. Notably, the appellant’s counsel objected to the expert’s testimony as lacking foundation. This objection preserved the issue and placed the burden on the Government to prove lack of prejudice. Had counsel failed to object, the appellant would have had the burden to prove prejudice under the plain error standard (as discussed here).

The CCA authorizes a rehearing.

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

United States v. Castillo, No. 14-0724/NA (CAAFlog case page): Oral argument audio

United States v. Carter, No. 14-0792/AR (CAAFlog case page): Oral argument audio

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

United States v. Arness, No. 14-8014/AF (CAAFlog case page): Oral argument audio

United States v. Blouin, No. 14-0656/AR (CAAFlog case page): Oral argument audio

Note: TWIMJ inaccurately stated that Castillo was to be argued today, not Blouin. I’ve corrected that error.

In this post from last October, I analyzed the NMCCA’s en banc decision in United States v. Spurling, No. 201400124 (N-M. Ct. Crim. App. Oct. 16, 2014). The case involves allegations of ineffective assistance by the appellant’s trial defense counsel, and the CCA’s decision explained that the two trial defense counsel functionally admitted their deficiency in affidavits to the CCA. But in a split decision, the CCA found no prejudice to the appellant.

The asserted deficiency was in the failure to seek suppression of a statement made by the appellant. The majority applied the objective standard articulated by CAAF last year in United States v. Jones, 73 M.J. 357 (C.A.A.F. Jul. 21, 2014) (CAAFlog case page), and concluded that a motion to suppress would not have prevailed at trial.

But CAAF summarily reversed the CCA on Friday, February 6, 2015, finding that the CCA’s decision improperly applied the Jones standard and also that it applied the wrong standard to determine whether a motion to suppress would have succeeded:

No. 15-0228/MC. U.S. v. Myles R. Spurling. CCA 201400124. On consideration of Appellant’s petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, we conclude that the Court of Criminal Appeals applied erroneous standards of review in evaluating Appellant’s ineffective assistance of counsel claim. First, in its review of the facts and circumstances to determine whether a motion to suppress would have been meritorious, the Court of Criminal Appeals relied on the subjective beliefs and opinions of the questioner and third-parties in assessing whether Appellant faced questioning from an individual in an official capacity or for disciplinary purposes. As we made clear in United States v. Jones, 73 M.J. 357, 362 (C.A.A.F. 2014), the analysis is informed by an objective standard. Additionally, when the Court of Criminal Appeals reviewed whether the motion to suppress would have been “meritorious,” it correctly cited the “reasonable probability” of success standard but then equated that standard with a standard of preponderance of the evidence. United States v. Spurling, No. NMCCA 201400124, slip op. at 7 n.18 (N-M. Ct. Crim. App. Oct. 16, 2014). Whether a motion is meritorious falls under the “reasonable probability” standard of Strickland v. Washington, 466 U.S. 668 (1994), and “[a] reasonable probability” is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694. See United States v. Jameson, 65 M.J. 160, 161-62 (C.A.A.F. 2007). Therefore, the Court of Criminal Appeals applied the wrong standard in assessing the meritorious aspect of the ineffective assistance claim.

Accordingly, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS (1) APPLIED AN ERRONEOUS STANDARD OF REVIEW IN EVALUATING WHETHER A MOTION TO SUPPRESS WOULD HAVE BEEN MERITORIOUS IN ASSESSING APPELLANT’S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM, AND (2) ERRED IN DETERMINING THAT ANY SUCH MOTION WOULD FAIL BECAUSE APPELLANT WAS NOT ENTITLED TO WARNINGS PURSUANT TO ARTICLE 31(b).

The decision of the United States Navy-Marine Corps Court of Criminal Appeals is reversed, and the case is returned to the Judge Advocate General of the Navy for remand to the Court of Criminal Appeals for further review under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(c) (2012), utilizing the standards of review set forth in Jones and Strickland. Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2012), shall apply.

Correction (10 Feb): Blouin will be argued on Tuesday, and Castillo will be argued on Wednesday.

This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court.

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

Tuesday, February 10, 2015

United States v. Arness, No. 14-8014/AF (CAAFlog case page)

Issue: Whether the United States Air Force Court of Criminal Appeals had jurisdiction to entertain a writ of error coram nobis where there was no statutory jurisdiction under Article 66(b)(1), UCMJ, on the underlying conviction and the case was not referred to the Court of Criminal Appeals by the Judge Advocate General under Article 69(d)(1), UCMJ, and where the Court of Criminal Appeals relied on potential jurisdiction under Article 69(d), UCMJ, as its basis for entertaining the writ (citing Dew v. United States, 48 M.J. 639 (Army Ct. Crim. App. 1998)).

Case Links:
• AFCCA opinion
• Appellant’s brief
• Appellee’s (Government) brief
• Blog post: Two interesting grants and a really interesting order from CAAF
• Blog post: Argument preview

United States v. Blouin, No. 14-0656/AR (CAAFlog case page)

Issue: Whether the military judge erred by accepting Appellant’s pleas of guilty to the specification of the charge where Prosecution Exhibit 4 demonstrated that the images possessed were not child pornography.

Case Links:
• ACCA opinion
• Blog post: ACCA furthers a broader definition of what CP is
• Appellant’s brief
• Appellee’s (Government) brief
• Appellant’s reply brief
• Blog post: Argument preview

Wednesday, February 11, 2015

United States v. Castillo, No. 14-0724/NA (CAAFlog case page)

Issue: Whether the lower court improperly determined that duty to self-report one’s own criminal arrests found in Office of the Chief of Naval Operations Instruction 3120.32c was valid despite the instruction’s obvious conflict with superior authority and the Fifth Amendment.

Case Links:
• NMCCA opinion
• Blog post: The Return of Self-Reporting? NMCCA Reverses Course on Serianne
• Appellant’s brief
• Appellee’s (Government) brief
• Appellant’s reply brief
• Blog post: Argument preview

United States v. Carter, No. 14-0792/AR (CAAFlog case page),

Issue: Whether the military judge abused her discretion by preventing defense counsel from presenting facts of appellant’s unlawful pretrial punishment as mitigation evidence at sentencing.

Case Links:
• ACCA opinion (summary disposition)
• Appellant’s Brief
• Appellee’s (Government) brief
• Blog post: Argument preview

This week at the ACCA: The next scheduled oral argument at the Army CCA is on February 18, 2015.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on February 17, 2015.

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

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

Service members facing trial by court-martial and ordered into pretrial confinement increasingly find themselves in civilian facilities due to the lack of a local military confinement facility. This can happen post-trial as well, when a convicted service member awaits transfer to a military facility. A recent article in the Army Lawyer provides a comprehensive overview of the issues that this hybrid system poses:

Marc Wm. Zelnick, Managing an Installation’s Utilization of a Civilian Confinement Facility: A Primer, Army Law., December 2014, at 6 (available here).

In this post last month, I announced that I updated our Microsoft Word document of the UCMJ to include the most recent changes. This is an annual project of mine. The document is available here: UCMJ.

But I’m revisiting the topic now because I discovered an error in the version that I posted last month. As part of this year’s update, I added the 2006 and pre-2006 versions of Article 120 to the document (because I use the document myself, and I often need to reference these older versions). Unfortunately, in the section captioned as the 2006 version of Article 120, the text was the current (2012) version. I’ve now corrected this mistake.

So, if any of our three readers downloaded the Word document in the past month, please download it again. I also hope to publish an online version sometime this year.

And if anyone identifies any other errors (even typographical), please drop me a note at zack@caaflog.com

CAAF will hear oral argument in the Army case of United States v. Carter, No. 14-0792/AR (CAAFlog case page), on Wednesday, February 11, 2015. The case returns CAAF to the issue of application of credit for unlawful pretrial punishment in the wake of United States v. Barnett, 71 M.J. 248 (C.A.A.F. 2012) (CAAFlog case page), with the following issue:

Whether the military judge abused her discretion by preventing defense counsel from presenting facts of appellant’s unlawful pretrial punishment as mitigation evidence at sentencing.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of one specification of indecent act in violation of Article 120(k) (2006). He was sentenced to confinement for six months, reduction to E-1, and a bad-conduct discharge. The Army CCA summarily affirmed.

The parties briefs reveal that in advance of trial, the military judge granted Appellant 27 days of confinement credit: two days credit for pretrial confinement served and 25 days credit for unlawful pretrial punishment in violation of Article 13. The finding of pretrial punishment was based upon excessive restrictions placed on Appellant after he was released from pretrial confinement. After Appellant was convicted, the defense counsel attempted to call a witness to testify about the nature of the excessive restrictions as mitigation evidence during the sentencing phase of the court-martial. The Government objected and the military judge sustained the objection, ruling that Appellant should not be allowed to obtain judicial credit for pretrial punishment and then present that same punishment to the members as mitigation. The military judge reasoned:

Under U.S. v. Gammons, it appears as though defense counsel has an option as to how to present that evidence; one of four different ways. I believe that the defense counsel already chose how to present the evidence, and so, it would be inappropriate to allow them to have a second bite at the apple and get credit, as well as try to present it as mitigation.

App. Br. at 4 (citing record). CAAF’s review will determine if the military judge was right, and whether it was appropriate to allow Appellant to “have a second bite at the apple” for credit for the pretrial punishment.

Read more »

The Joint Service Committee on Military Justice (JSC) conducts an annual review of the Manual for Courts-Martial (MCM), and proposes changes to the President. Readers interested in the JSC may enjoy this 2012 three-part series of guest posts about the JSC, that described the composition, role, function, and procedures of the JSC.

Here is a link to a Federal Register notice of the 2015 annual review. Public comments must be submitted by April 6, 2015.

The public is invited to submit proposed changes to the JSC. The JSC doesn’t always address every proposal in every comment. For instance, the recent public notice of proposed changes to the MCM included this language at the end:

Several suggested changes to the MCM as well as recommended legislative changes to UCMJ articles were not contemplated in the proposals currently under review. Those suggestions will be considered in the course of the 2015 annual review of the MCM, which is required by DoD Directive 5500.17.

However, the notice of this year’s review states that it will begin with a (mostly) clean slate:

In light of the significant changes to the military justice system resulting from the National Defense Authorization Acts for Fiscal Years 2014 and 2015, the JSC will not consider proposed changes submitted prior to October 1, 2014 during this annual review. If the proponent of any proposed change submitted prior to October 1, 2014 would like a previously submitted proposal to be considered by the JSC, it must be resubmitted as explained in this notice.

(emphasis added).

CAAF will hear oral argument in the Army case of United States v. Blouin, No. 14-0656/AR (CAAFlog case page), on Tuesday, February 10, 2015. The case is one of a numerous cases before the court this term involving the definition of child pornography, and it presents the following issue:

Whether the military judge erred by accepting Appellant’s pleas of guilty to the specification of the charge where Prosecution Exhibit 4 demonstrated that the images possessed were not child pornography.

Appellant pleaded guilty, at a general court-martial composed of a military judge alone, of one specification of possession of child pornography, as defined in 18 U.S.C. § 2256(8), as conduct prejudicial to good order and discipline in violation of Article 134. He was sentenced to confinement for six months, reduction to E-1, and a bad-conduct discharge.

Appellant’s case involved images discovered on his Play Station Portable device by a fellow soldier. “According to the stipulation of fact, approximately 173 images were likely child pornography as defined under the Child Pornography Prevention Act (CPPA) from the over 633 images of suspected child pornography.” Govt. Br. at 2 n.1. However, when Appellant pleaded guilty, the Government provided only 12 images, as “a sample of the images obtained from appellant.” Gov’t Br. at 2. Of those twelve images, the military judge determined that only three constituted child pornography.

These three images are described in the parties briefs, as well as in the Army CCA’s decision. See App. Br. at 4-5, Gov’t Br. at 5-6. Each depicts a young girl posing provocatively in undergarments. None depicts sexual activity or full nudity. Nevertheless, the images may still constitute child pornography, as defined in 18 U.S.C. § 2256(8), if they involve “a lascivious exhibition of the genitals or pubic area.” Whether a particular image involves such an exhibition is subject to a six-factor analysis commonly known as the Dost factors. See United States v. Roderick, 62 M.J. 425, 429-30 (C.A.A.F. 2006) (citing United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986), aff’d sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987)). One of those factors is “whether the child is fully or partially clothed, or nude.” Id.

Read more »