CAAF’s daily journal for April 9 reflects this entry in United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. Feb. 23, 2015) (CAAFlog case page):

No. 13-0522/AF. U.S. v. David J.A. Gutierrez. CCA 37913.  Appellant’s petition for reconsideration of the Court’s opinion, 74 M.J. 61 (C.A.A.F. 2015), is denied.

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 two cases this week. Both arguments will occur at law schools in Wisconsin, as part of the court’s Project Outreach:

Tuesday, April 14, 2015, at noon, at Marquette University Law School, Milwaukee, Wisconsin.

United States v. Plant, No. 15-0011/AF (CAAFlog case page)

Issue: Whether the evidence is legally sufficient to support the finding of guilty to Charge V and its specification (child endangerment) because the evidence failed to prove Appellant’s alcohol use alone amounted to culpable negligence that endangered the welfare of L.P.

Case Links:
AFCCA opinion
Appellant’s brief
Appellee’s (Government) brief
• Brief of Amicus Curiae (law students)
Blog post: Argument preview

Wednesday, April 15, 2015, at noon, at the University of Wisconsin Law School, Madison, Wisconsin:

United States v. Keefauver, No. 15-0029/AR (CAAFlog case page)

Issue: Whether the Army Court erred in finding that the protective sweep was appropriate in total.

Case Links:
ACCA opinion (73 M.J. 846)
Blog post: Army CCA affirms a protective sweep
Appellant’s brief
Appellee’s (Government) brief
Amicus brief in support of Appellant (law students)
Amicus brief in support of Appellee (law students)
• Blog post: Argument preview

This week at the ACCA: The next scheduled oral argument at the Army CCA is on April 23, 2015.

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

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 will hear oral argument in one case this week, on Tuesday, April 14, 2015, at 10 a.m.:

United States v. Montalvo

Case summary: A panel of officer and enlisted members, sitting as a general court-martial, convicted the appellant, contrary to his pleas, of two specification of rape in violation of Article 120, UCMJ, 10 U.S.C. § 920. The members sentenced the appellant to reduction to paygrade E-1, confinement for nine years, and a dishonorable discharge. The convening authority approved the sentence as adjudged and, except for the dishonorable discharge, ordered the sentence executed.

Issue: Did the military judge abuse his discretion in denying the defense’s continuance request and is Appellant entitled to relief only if the court also finds the error materially prejudiced a substatintial right of the Appellant’s?

Included in the most recent issue of the Military Law Review is Julie Dickerson, A Compensation System for Military Victims of Sexual Assault and Harassment, 222 Mil. L. Rev. 211 (Winter 2014) (available here).

The article considers and rejects numerous existing methods to compensate victims of crimes tried by courts-martial, concluding that none are adequate. For instance:

  • Civil suits against the Government (under a vicarious liability theory) are barred by Feres. Dickerson, supra, at 218.
  • No-fault compensation systems (VA disability and TSGLI) are “limited in scope.” Dickerson, supra, at 220.
  • Restitution is dismissed as “unlikely.” Dickerson, supra, at 225.
  • State compensation boards are deemed “inadequate.” Dickerson, supra, at 226.

The author then proposes creating a separate “Military Crime Victims Compensation Board” (MCB):

Organizationally, the MCB should be established under the DoD Office of the Under Secretary of Defense for Personnel and Readiness (Sec Def P&R). . . .

After the MCB reviews a victim’s application and determines the compensation owed, the payment order would be sent to the Defense Finance and Accounting Service (DFAS), the victim, and the perpetrator. The DFAS would wait thirty days, and if no notice of appeal is filed, pay the victim and take action to garnish the perpetrator’s pay. To administer appeals, the Sec Def P&R could utilize the services of judges assigned to the Defense Legal Services Agency, which already has an appeal process in place for DFAS claims and security clearances. If the offender is discharged from the service, DFAS should refer the offender’s debts to the Treasury Department for collection through the Internal Revenue Service (IRS).

Dickerson, supra, at 241. Notably, the author acknowledges that this creates a financial incentive to make an allegation against a service member:

[H]aving the opportunity to apply for compensation within the military will incentivize more victims to report either formally or informally to the authorities.

Dickerson, supra, at 240-41. Of course, such an incentive is equally present for legitimate and false allegations. The article addresses this issue only briefly and tangentially:

Though the MCB provides compensation as a post-appellate process, some defense attorneys may try to use the process during the cross-examination of a victim at criminal trials, which may occur in courts-martial, state courts, or U.S. district courts, depending on the location of the offense, arguing, essentially, that the possibility of compensation creates perverse incentives for the victim to file a false report. Even so, the defense’s argument would not necessarily be persuasive or decisive. Victims have been able to sue perpetrators in tort after criminal trials for decades and prosecutors have nevertheless been able to obtain convictions.

Dickerson, supra, at 259-60.

There are two additional notable aspects to the article.

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A milestone recently passed unnoticed: My 100th Argument Preview post. This week’s preview of the argument in Keefauver was the 108th such post.

I’d greatly appreciate any feedback you might have about these posts. In particular, are they objective? Are they understandable? Do they omit anything you want to see? Do they contain anything they shouldn’t?

Please either post your feedback here or send it to me (in confidence) by email to zack@caaflog.com

In a published decision in United States v. Atkinson, __ M.J. __, No. 201400284 (N-M. Ct. Crim. App. Mar. 26, 2015) (link to slip op.), the NMCCA holds that the appellant was not entitled to credit for pre-trial confinement in a civilian facility, holding in part that “the court-martial lacked jurisdiction to address the appellant’s request for administrative credit based on R.C.M. 305(j)(2) and (k).” Slip op. at 7.

The appellant was placed into the civilian facility after he was apprehended (on a deserter warrant) by military authorities (NCIS) operating with local authorities. The facility was in Wilmington, NC, just a few hours drive away from the appellant’s unit at Camp Lejeune, NC. However, the Government left the appellant in that facility for 62 days, without any R.C.M. 305 review of his confinement, “despite his unit knowing he was there and available for pick up.” Slip op. at 2. Yet when the appellant sought judicial relief for this confinement at trial, his request was denied on jurisdictional grounds.

Disclaimer: I was one of this appellant’s detailed military trial defense counsel, and I litigated this issue at the trial stage.

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Yesterday CAAF granted review of two issues in a Marine Corps case:

No. 15-0172/MC. U.S. v. Francis L. Captain. CCA 201300137. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues specified by the Court:

I.    WHETHER TRIAL DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO OFFER EVIDENCE, OTHER THAN AN UNSWORN STATEMENT, IN EXTENUATION OR MITIGATION AND BY CONCEDING THE APPROPRIATENESS OF A DISHONORABLE DISCHARGE.

II.   WHETHER THE UNITED STATES NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED IN AFFIRMING A SENTENCE THAT INCLUDED A DISHONORABLE DISCHARGE WHEN THE CONVENING AUTHORITY’S ACTION DID NOT APPROVE ONE.

Briefs will be filed under Rule 25.

The NMCCA’s opinion is available here.

Other recent IAC cases on CAAF’s docket include:

  • United States v. Spurling, __ M.J. __, No. 15-0228/MC (C.A.A.F. Feb. 6, 2015) (summary disp.) (discussed here).
  • United States v. McIntosh, No. 14-0685/AF (rev. granted Jan. 15, 2015) (discussed here).
  • United States v. Engler, __ M.J. __, No. 15-0077/MC (C.A.A.F. Dec. 3, 2014) (summary disp.) (discussed here).

The Army CCA’s published opinion in United States v. Sneed, __ M.J. __, No. 20131062 (A. Ct. Crim. App. Mar. 27, 2015) (link to slip op.), is an interesting read. The appellant pleaded guilty, in accordance with the terms of a pretrial agreement, to three specifications of aggravated assault with a means likely to cause death or grievous bodily harm, seven specifications of assault consummated by a battery, and one specification of kidnapping in violation of Articles 128 and 134. He was sentenced to confinement for nine years and a dishonorable discharge. In accordance with the pretrial agreement, the convening authority approved the dishonorable discharge and only six years of confinement.

The appellant’s pleas related to abuse of his girlfriend, who was also a soldier. In particular:

Specialist (SPC) BG, to a variety of emotional and physical abuse. This abuse included an incident where, in the midst of yet another argument [over the appellant’s desire to use BG’s debit card to pay for airfare -zds], appellant shoved a pregnant SPC BG into his closet in the barracks and locked her in for, as he stated, not more than 10 minutes. This act was charged as an act of kidnapping under Article 134, UCMJ. Appellant pled[ed] guilty to the kidnapping as charged.

Slip op. at 2. The kidnapping was the most serious charge the appellant pleaded guilty to committing, as it carries a maximum authorized punishment that includes confinement for life without eligibility for parole. The maximums for each of the aggravated assault specifications is three years; for the battery specifications, six months.

On appeal, the appellant challenged the providence of his plea to the kidnapping offense. Specifically, he asserted that “(1) the judge failed to fully and properly define the offense of kidnapping, and (2) the providence inquiry and stipulation of fact established that appellant’s holding of SPC BG was merely incidental to his attempt to obtain SPC BG’s debit card.” Slip op. at 5. To constitute kidnapping, a “holding . . . must be more than a momentary or incidental detention. . . . Otherwise, as to incidental detentions, a soldier would be subject to conviction and life in prison under Article 134, UCMJ, for an act better described by offenses carrying far lesser punishment.” Slip op. at 5.

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As discussed in this post, the Joint Service Committee recently solicited public comments for its 2015 annual review of the Manual for Courts-Martial. Here is a link to my contribution, in which I made the following suggestions:

a. Increase procedural protections for a person accused of contempt.

b. Limit the use of personal identifiers in court-martial documents.

c. Consider rules to address contemporaneous public access to court-martial documents.

d. Clarify the effect of a staff judge advocates pretrial advice.

e. Explicitly state that the different clauses of Article 134 constitute discreet discrete offenses that must be alleged in separate specifications.

f. Require production of a privilege log when any entity who is represented by counsel asserts an evidentiary privilege.

g. Restrict the Government to the privileges contained in Military Rules of Evidence 505, 506, and 507.

h. Ensure consistency in prosecutions under Clause 1 and Clause 2 of Article 134.

CAAF will hear oral argument in the Army case of United States v. Keefauver, No. 15-0029/AR (CAAFlog case page), on Wednesday, April 15, 2015, at noon. This will be a Project Outreach oral argument and will occur at the University of Wisconsin Law School, Madison, Wisconsin.

The case presents a single, somewhat strangely-worded issue about a pretrial ruling:

Whether the Army Court erred in finding that the protective sweep was appropriate in total.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of two specifications of violating a general regulation by wrongfully possessing drug paraphernalia and unregistered weapons on-post, one specification of wrongful possession of marijuana, and one specification of child endangerment in violation of Articles 92, 112a, and 134. He was sentenced to confinement for four years, total forfeitures, reduction to E-1, and a bad-conduct discharge. In a published decision that I discussed in this post, the Army CCA affirmed the findings and sentence.

The case began when a postal inspector alerted military authorities to a suspicious package scheduled for delivery to Appellant’s on-base residence. Drug dogs alerted to the package, and a controlled delivery was scheduled. But the Government’s own brief to CAAF acknowledges that its agents intended to do far more than just deliver the package:

The plan was to conduct a controlled delivery of the package and to conduct a search of the home using an MWR [military working dog] after the box was taken into the home. CPT MR [the military magistrate] testified at the Article 39(a) session that he verbally authorized the agents to conduct the search and that they could do it with an MWD. The “actual limits on when the MWD could enter the home and where it could go were not clearly defined during the motion.” SA SR stated he understood the verbal authorization “was to search for the package inside the house and once the package was found, any additional search, if we had a K9 search the house and alerted to any other drugs inside the house, that we would have authorization to search the rest of the house.”

Gov’t Br. at 3 (citations to record omitted). A footnote illustrates the ambiguity in the search authorization granted to the agents:

During the Article 39(a) CPT MR provided approximately five different answers as to what the limits of the search with the MWD were.

Gov’t Br. at 3 n.1. Government agents then attempted to deliver the package, but the home was vacant. So they established surveillance and waited. Eventually, Appellant’s stepson arrived at the house, and the agents pounced, advancing so quickly that “the door was still slightly open and the key was still in the door.” App. Br. at 44. The agents then “discovered the package a few feet from the front door, sitting on a table in the foyer next to the staircase.” Gov’t Br. at 5. However, despite the immediate seizure of the suspicious package and the fact that the home was empty before the child arrived, the agents conducted a search of the property, discovering a significant quantity of drug-related materials:

When the agents entered the house, SA SR and PI JT immediately conducted a security sweep of the residence in order to make certain no unknown persons were present in the residence who might present a danger to the officers. During his sweep of the premises, SA SR discovered a number of drugs and drug paraphernalia in plain view.

Gov’t Br. at 5. The package itself contained between three and four pounds of marijuana.

Appellant moved to exclude from the trial all of the evidence seized from his home. The military judge denied Appellant’s motion and made three rulings. First, the judge held that the search authorization for the suspicious package itself was lawful. Second, the judge held that the agents were justified in conducting a protective sweep of Appellant’s residence after seizing the package because “under the particular facts of this case, the law enforcement agents had reasonable suspicion to believe that an individual or individuals who posed a danger to the agents may have been hiding in the residence.” Gov’t Br. at 8 (quoting record). Third, the judge concluded that the search authorization was invalid beyond the package itself, however the protective sweep made the further discoveries inevitable.

On appeal, the Army CCA affirmed, concluding that “in this case there are additional facts, including the unknown whereabouts of the adults in the household and the behavior of [Appellant’s stepson], along with the unobjected to testimony of an expert in drug trafficking that ‘guns follow drugs,’ that allow us to conclude the military judge did not abuse his discretion in finding SA SR’s protective sweep of appellant’s home was justified.” 73 M.J. 846, 854.

CAAF then granted review of an issue that appears to question this conclusion by the CCA and not the underlying ruling of the military judge. But CAAF’s caselaw is clear that:

When reviewing a ruling on a motion to suppress, we consider the evidence in the light most favorable to the prevailing party. . . . [W]e pierce the intermediate level of appellate review and examine the military judge’s ruling directly.

United States v. Baker, 70 M.J. 283, 288 (C.A.A.F. 2011) (citations omitted). And the parties agree that CAAF will review the military judge’s findings of fact and conclusions of law under the abuse of discretion standard. Still, that doesn’t let the CCA completely off the hook, as its opinion included in a footnote the assertion that:

[A]ppellate courts, in reviewing the correctness of [a] ruling [on a motion to suppress], may consider any evidence presented in the trial of the case.

73 M.J. at 849 n.3. The parties briefs treat that assertion as an issue as significant as the military judge’s conclusion regarding the validity of the protective sweep.

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CAAF will hear oral argument in the Air Force case of United States v. Plant, No. 15-0011/AF (CAAFlog case page), on Tuesday, April 14, 2015, at noon. This will be a Project Outreach oral argument and will occur at the Marquette University Law School, Milwaukee, Wisconsin.

The case presents a single issue of legal sufficiency:

Whether the evidence is legally sufficient to support the finding of guilty to Charge V and its specification (child endangerment) because the evidence failed to prove Appellant’s alcohol use alone amounted to culpable negligence that endangered the welfare of L.P.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of rape, aggravated sexual assault of a child over 12 but under 16, adultery, and child endangerment, in violation of Articles 120 and 134. He was sentenced to confinement for 12 years, reduction to E-1, and a dishonorable discharge.

The conviction of child endangerment is largely unrelated to the other offenses. During a party at his house, Appellant became intoxicated. Appellant’s infant son was sleeping in the house and “did not wake the entire night.” Gov’t Br. at 2. The other offenses occurred during the party but did not otherwise involve or implicate the child. Appellant was convicted of child endangerment based on his alcohol consumption alone, under the following theory:

Appellant’s conviction for child endangerment by his use of alcohol is legally sufficient. The evidence introduced at trial, when viewed in the light most favorable to the prosecution, easily provided the fact-finder with sufficient evidence to conclude that Appellant was culpably negligent by using alcohol excessively. This alcohol use thereby impaired Appellant’s judgment so substantially that it was reasonably foreseeable his son, also present in the residence, could suffer mental or physical harm.

Gov’t Br. at 5. Specifically, the Government alleged the following:

1) That Appellant had a duty for the care of LP;

2) That LP was under the age of 16;

3) That Appellant endangered LP’s mental and physical health, safety, or welfare through culpable negligence by using alcohol;

4) That under such circumstances, the conduct of the accused was of a nature to bring discredit upon the armed forces.

Gov’t Br. at 9 (emphasis added). The charge also alleged that Appellant used cocaine, but he was acquitted of that language. The Air Force CCA affirmed the findings and sentence, reasoning in part that:

the appellant’s alcohol use and the circumstances surrounding that alcohol use might foreseeably result in harm to the child, even if such harm would not necessarily be the natural and probable consequences of such acts.

United States v. Plant, No. 38274, slip op. at 7 (A.F. Ct. Crim. App. Jul. 2, 2014).

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Significant military justice event this week: Public comments to the Joint Service Committee’s 2015 annual review of the Manual for Courts-Martial are due tomorrow. Comments may be submitted here.

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 April 14, 2015 (at Marquette University Law School, Milwaukee, WI; on April 15, CAAF will hear argument at the University of Wisconsin Law School, Madison, WI).

This week at the ACCA: The next scheduled oral argument at the Army CCA is on April 23, 2015.

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

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 next scheduled oral argument at the Navy-Marine Corps CCA is on April 14, 2015.

There is an interesting article about mental health issues in the recent issue of the Military Law Review: Major Cara-Ann M. Hamaguchi, A Precarious Balance: Managing Stigma, Confidentiality, and Command Awareness in the Mental Health Arena, 222 Mil. L. Rev. 156 (Winter 2015) (available here).

The article:

examines the conflict between privacy and the military mission, and advocates for a better balance between the two by centralizing information for commanders and establishing specific administrative consequences for commanders and leaders who fail to respect established privacy standards. This article also examines the current uses of mental-health information for mission and readiness requirements, and calls for more transparency for Soldiers. While parts of this article apply to the entire spectrum of mental conditions and disorders, this article focuses specifically on combat-stress and Post Traumatic Stress Disorder (PTSD).

Hamaguchi, supra, at 161. The article’s main focus is on Army regulations and application, but its themes have broad application. For instance:

Confidentiality is critical to overcoming barriers to care associated with stigma. Soldiers who are otherwise too embarrassed or scared to seek treatment are more likely to do so with strict assurances of privacy. Many of them seek out mental-health providers and chaplains “off the record,” and they are often wary of even being seen talking to these professionals.

Hamaguchi, supra, at 175. And the article also identifies (but does not discuss in detail) what I consider to be a significant flaw in the military exception to HIPAA:

The default rule under HIPAA and DoD policy is that PHI cannot be released unless the patient authorizes release or an exception to HIPAA applies. Nevertheless, there is a HIPAA exception that accounts for the unique nature of the military mission. This “Military Command Authority” exception allows military and civilian treatment facilities to provide appropriate command authorities with access to a Soldier’s PHI to facilitate decisions pertaining to medical fitness and readiness. . . .

Notably, the exception to HIPAA does not provide commanders with unlimited access to a Soldier’s PHI. Rather, the information released must be the minimum amount of information necessary for mission accomplishment. Nevertheless, out of deference to commanders and for the sake of mission completion, this exception can be quite broad in practice.

Hamaguchi, supra, at 186-188 (emphasis added). I think it better to say that this exception often swallows the rule. This begs the question of why, if “confidentiality is critical,” HIPAA’s privacy rules are not more strictly enforced in the military. The article provides something of an answer in the form of a proposed regulation to address commanders who fail to respect protected health information:

AR 600-20 could establish a specific penalty for commanders who intentionally disregard privacy or who promote or tolerate stigma in their formations. As discussed previously in section VII, the penalties associated with HIPAA do not apply to commanders because commanders are not “covered entities” under HIPAA. In addition, although commanders are subject to criminal penalties under the Privacy Act, the likelihood and feasibility of a criminal prosecution is minimal. There are also no specific enumerated penalties for leaders or commanders who promote or tolerate stigma. While there are various policies that caution against promoting stigma, none of them are explicitly punitive in nature. To fill the gap, the addition of a Soldier Fitness chapter into AR 600-20 should include a penalty modeled after the penalties for EO and sexual-harassment policy violations.

Hamaguchi, supra, at 196.

In this post last September, I analyzed the unpublished en banc opinion in United States v. Soto, No. 38422 (A.F. Ct. Crim. App. Sep. 16, 2014), that reversed a conviction for forcible rape in violation of Article 120(a) (2006) on the basis that the Government failed to satisfy its burden to demonstrate that the appellant used physical force to cause the sexual intercourse. I concluded that post with the following analysis:

The Government could take this case to CAAF, where that court can review a CCA’s action on factual sufficiency to determine if “the CCA clearly acted without regard to a legal standard or otherwise abused its discretion.” United States v. Nerad, 69 M.J. 138, 147 (C.A.A.F. 2010). And the Judge Advocate General of the Air Force hasn’t been shy about certifying cases to CAAF over the past year (see Part V of the 2013 End o’ Term Stats). But Judge Weber’s opinion is focused on the facts of the case and doesn’t involve the sort of “purely equitable factors” or “simpl[e] disagree[ment] that certain conduct— clearly proscribed by an unambiguous statute— should be criminal” that CAAF has found constitutes an abuse of discretion.Nerad, 60 M.J. at 147. So I think any such appeal faces very long odds.

Perhaps unsurprisingly, the Judge Advocate General of the Air Force certified the case to CAAF.

But the following entry from CAAF’s daily journal for yesterday is totally unsurprising:

Appeals – Summary Dispositions

No. 15-0247/AF. U.S. v. Eddy C. Soto. CCA 338422. On consideration of the certificate for review (74 M.J. __ (C.A.A.F. Dec. 19, 2014)), and the briefs of the parties, we conclude that the United States Air Force Court of Criminal Appeals did not abuse its discretion in finding Appellee’s rape conviction, and any lesser offense, factually insufficient. Accordingly, it is ordered that the certified questions are answered in the negative and the decision of the United States Air Force Court of Criminal Appeals is affirmed.

CAAF decided the Air Force case of United States v. Olson, __ M.J. __, No. 14-0166/AF (CAAFlog case page) (link to slip op.), on Thursday, April 2, 2015. The court holds that the military judge did not err in concluding that Appellant’s consent to a search of her home was voluntary, affirming the decision of the Air Force CCA.

Judge Stucky writes for a functionally-unanimous the court. Chief Judge Baker writes separately, concurring.

CAAF granted review to determine:

Whether the military judge erred by denying the Defense’s motion to suppress the evidence seized from Appellant’s house because the totality of the circumstances indicated that Appellant’s consent to search was involuntary.

In August 2011, Appellant’s military supervisor contacted Air Force investigators with suspicions related to Appellant’s civilian husband, who was allegedly involved in illegal drug activity. Appellant was sent to meet with Air Force investigators in a conference room and Appellant was not advised of her Article 31(b) right to remain silent. Then:

The agents advised Appellant that her husband was suspected of distributing illegal drugs on base and that he had been arrested by Calvert County, Maryland, police. The agents asked for consent to search her residence, which she was reluctant to give. Appellant wanted to telephone her husband but was dissuaded from doing so by the agents. At the time, Appellant resided off base with her husband in Maryland, although he had been absent from the house since July. During a smoke break outside the building, an agent tried to convince her to consent to the search. Appellant understood that the agents could try to convince her to consent, and she worried that they were trying to get her in trouble.

Slip op. at 4. Eventually she consented, and drugs and drug paraphernalia were discovered in the residence. She was later convicted contrary to her pleas of not guilty, by a special court-martial composed of officer members, of dereliction of duty, spoilage of personal property, wrongful possession of ketamine, and larceny, in violation of Articles 92, 109, 112a, and 121. She was sentenced to confinement for four months, forfeiture of $978.00 pay per month for 4 months, reduction to E-1, and a bad-conduct discharge. The convening authority disapproved one month of the adjudged forfeitures but otherwise approved the adjudged sentence.

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CAAF decided the Army case of United States v. Bennitt, __ M.J. __, No. 12-0616/AR (CAAFlog case page) (link to slip op.), on Thursday, April 2, 2015. The court holds that the Army CCA erred in approving Appellant’s sentence, because the CCA made a finding based on a theory not presented at trial. CAAF reverses the decision of the Army court and remands the case for further action.

Judge Ryan write for the court. She is joined by all but Chief Judge Baker, who dissents.

CAAF granted review of a single issue:

Whether the Army Court of Criminal Appeals abused its discretion by reaffirming appellant’s approved sentence after this court set aside his conviction for manslaughter.

This is CAAF’s second opinion in this case. Previously, in a 2013 decision (CAAFlog case page), CAAF reversed Appellant’s conviction of involuntary manslaughter for his distribution of prescription opioid painkillers to his 16 year-old girlfriend (“LK”), who overdosed and died in Appellant’s barracks room in 2009. Yet Appellant also pleaded guilty to four specifications each of wrongful use and wrongful distribution of a controlled substance in violation of Article 112a, and CAAF remanded the case for reassessment of the sentence based on just those offenses. Despite the fact that Appellant was no longer convicted of manslaughter, the CCA affirmed the entire adjudged sentence (confinement for 70 months, total forfeitures, reduction to E-1, and a dishonorable discharge) in two opinions:

The CCA explained that “[a]lthough appellant now stands acquitted of involuntary manslaughter, pursuant to Rule for CourtsMartial [sic] 1001(b)(4), LK’s death was directly related to appellant’s conviction for oxymorphone distribution. Therefore, the evidence underlying the dismissed charge was proper aggravation evidence . . . .” Bennitt II, 2013 CCA LEXIS 838, at *3-4, 2013 WL 5588229, at *1.

On a motion for reconsideration in light of United States v. Winckelmann, 73 M.J. 11 (C.A.A.F. 2013), the CCA again reassessed, and did not change, Appellant’s sentence. United States v. Bennitt (Bennitt III), No. ACM 20100172, 2014 CCA LEXIS 188, at *11, 2014 WL 1246764, at *3 (A. Ct. Crim. App. Mar. 25, 2014) (unpublished). The CCA’s reasoning did change, however. The CCA concluded that evidence of LK’s death was admissible aggravation evidence because Appellant’s Article 112a, UCMJ, conviction of oxymorphone distribution on divers occasions on or about February 14, 2009, included distribution of the drug to LK. Bennitt III, 2014 CCA LEXIS 188, at *9-10, 2014 WL 1246764, at *3.

Slip op. at 2-3 (marks in original). Yet Judge Ryan finds fault with the CCA’s revised reasoning, concluding that “the CCA erred as a matter of law in its second reassessment when it stated that Appellant was convicted of distribution of oxymorphone to LK as part of his Article 112a, UCMJ, conviction.” Slip op. at 4. This was error because:

The CCA’s finding was based on “a theory not presented to the trier of fact.”

Slip op. at 9.

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