A brief personal update: I left active duty on July 1 and moved to Massachusetts with my wife and two children. I remain in the Marine Corps Reserve. I’ve been busy setting up the household and preparing for civilian practice. More news on that to come.

I will continue blogging. In fact, I’m planning to do a lot of writing about military justice issues in the coming months. For example, here is a link to my analysis of the new Article 60(c) (the convening authority’s clemency power for offenses committed on or after June 24, 2014) published as part of the LexisNexis Emerging Issues Analysis series, 2014 Emerging Issues 7217.

CAAF decided the Army case of United States v. Treat, No. 14-0280/AR, __ M.J. __ (CAAFlog case page) (link to slip op.) on Wednesday, July 16, 2014. A plurality of the court holds that the military judge’s finding of guilty by exceptions and substitutions constituted a material variance but that the variance is not fatal because it did not prejudice Appellant. The court therefore affirms the published decision of the Army CCA that affirmed Appellant’s conviction for missing movement (despite the fact that the CCA found no material variance).

Judge Ohlson writes for the court, joined by Judge Erdmann (and creating what I believe is the first plurality opinion of the court since Forney (discussed here) was decided in 2009). Chief Judge Baker writes separately, concurring in the result but finding that the variance was not material. Judge Stucky dissents across the board, finding that Appellant waived this issue, and further finding that even if Appellant didn’t waive the issue then the variance was both material and fatal and the conviction should be reversed. Judge Ryan also dissents, joining Judge Stucky’s dissent but writing separately to express skepticism about whether the court should find waiver in this case.

Appellant was assigned to an Army unit based in Germany. The unit was scheduled to deploy to Afghanistan in 2010, and Appellant participated in the pre-deployment training and was briefed on the deployment schedule. But when the unit eventually boarded an aircraft to fly to Afghanistan, Appellant wasn’t there. He later appeared, claiming that he was kidnapped at a local bar by Russian-speaking men before the scheduled departure and not released until after the flight left. His command didn’t believe his story, and he was soon charged. He was convicted contrary to his pleas of not guilty, by a special court-martial composed of a military judge alone, of missing movement and making a false official statement in violation of Articles 87 and 107. He was sentenced to confinement for three months, reduction to E-1, and a bad-conduct discharge.

CAAF granted review of a single issue involving the missing movement conviction:

Whether there is a fatal variance and a violation of Appellant’s due process right to notice when the Government alleged that Appellant missed the movement of a particular aircraft but the proof established that he missed the movement of a particular unit.

The Government charged Appellant as follows:

In that Sergeant Michael L. Treat, U.S. Army, did, at or near Bamberg, Germany, on or about 17 November 2010, through design, miss the movement of Flight TA4B702 with which he was required in the course of duty to move.

Slip op. at 3 (emphasis added). “However, at trial the Government’s witnesses could not recall the flight number of the aircraft on which Appellant’s unit deployed. After hearing all the evidence, the military judge convicted Appellant of the missing movement charge, but only after excepting the words ‘Flight TA4B702,’ and substituting therefor the words ‘the flight dedicated to transport Main Body 1 of 54th Engineer Battalion from Ramstein Air Base, Germany, to Manas Air Base, Kyrgyzstan.’” Slip op. at 3.

The Defense did not move for a finding of not guilty based on the Government’s failure to prove the flight number, nor did the Defense object at the time the military judge made the findings (a fact that Judge Ohlson addresses in a last-page footnote as requiring plain error review). However, the Defense did raise the issue of a variance during the post-trial process. A variance is when the offense proven at trial does not conform with the offense alleged in the charge, and it is a potential issue when findings are made by exceptions and substitutions. Exceptions and substitutions are changes to a specification permitted by Rule for Courts-Martial 918; an accused may be found guilty of a specification while not guilty of certain language within the specification (exceptions) and guilty of other language added to the specification (substitutions).

In this case, the Defense strategy was based on Appellant’s asserted kidnapping, and “the defense’s theme throughout the trial was ‘the truth is stranger than fiction.’” Slip op. at 8. But “in order ‘to prevail on a fatal variance claim, an appellant must show both that the variance was material and that he was substantially prejudiced thereby.” Slip op. at 12 (emphasis in original) (quoting United States v. Marshall, 67 M.J. 418, 420 (C.A.A.F. 2009)). On automatic review the Army CCA found no material variance in the findings, issuing a published decision (72 M.J. 845). I discussed that opinion in this post, where I reviewed the two different theories of missing movement under Article 87 and concluded that there was a material variance in the findings and that the CCA’s finding of no variance was mistaken. But I felt that Appellant’s kidnapping defense wasn’t affected by the variance, nor would it have been any more effective had the offense been charged consistent with the judge’s findings. So I agreed with the CCA’s ultimate conclusion affirming the findings.

Judge Ohlson’s plurality opinion agrees with my conclusion that there was a material but non-fatal variance.

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Much coverage of Sergeant Bowe Bergdahl’s retention of former NIMJ President Eugene Fidell, here (NBC), here (ABC), and here (Fox). Bergdahl is reportedly working a desk job at Ft. Sam Houston in San Antonio after finishing reintegration training for former POWs.

When two people get really drunk, arguably to the point of “substantial incapacitation,” and engage in sexual activity, who is the perpetrator and who is the victim? That issue is one that I’ve spit-balled before with fellow attorneys, and one which I was hoping would eventually be raised by someone in a real case. That finally happened in the case of United States v. Redmon, No. 201300077 (N-M.C.C.A. 26 Jun 2014).

In Redmon, the appellant and the victim, IT3 S, attended a farewell party thrown by a third party in honor of the appellant. The victim consumed a substantial amount of alcohol throughout the night, both before and during the party, as did the appellant. The party ended around 0300 and the victim was having difficulty walking. She was helped back to her apartment, about a 10 minute walk away, by the appellant and other sailors. Once at her apartment, the victim undressed and sat in the shower for approximately 45 minutes. Another sailor attempted to remove her from the shower, but required the appellant’s assistance to do so. They got her out and began to dress her, however she began to vomit. Eventually though, they were able to clothe her and lay her on a futon. The appellant later lay down to sleep with her.

The appellant’s roommate and her boyfriend were in the apartment that night, and both left the apartment around 0530. At that time, the appellant and victim were “spooning,” but nothing else appeared to be amiss. The victim alleged that after falling asleep, the next thing she remembers was waking up naked from the waist down, with the appellant penetrating her vagina. She began to cry, pushed the appellant away, dressed and went to sleep in her bed. After this, the appellant got a ride back to his barracks room with a friend, who observed semen on the appellant’s boxers when he changed clothes in his barracks room. Read more »

CAAF decided the Air Force case of United States v. Elespuru, No. 14-0012/AF, __ M.J. __ (CAAFlog case page) (link to slip op.), on Tuesday, July 15, 2014. The court finds that Appellant knowingly waived his multiplicity claim. Nevertheless, the court dismisses one of the offenses at issue; not for multiplicity, but instead because the Government made it clear that the offense was charged in the alternative.

Judge Ryan writes for a practically-unanimous court. Chief Judge Baker concurs in the result but dissents from the majority’s finding of waiver.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of one specification each of abusive sexual contact upon a substantially incapacitated person, wrongful sexual contact, and assault consummated by a battery, in violation of Articles 120 (2006)  and 128. He was sentenced to reduction to E-1, confinement for 36 months, and a dishonorable discharge.

CAAF granted review to determine:

Whether Specifications 2 [abusive sexual contact] and 3 [wrongful sexual contact] of Charge I are multiplicious.

Slip op. at 2 (modification in original). Appellant’s victim fell asleep after a night of drinking. While she was sleeping, Appellant repeatedly touched her body. She awoke each time, told him to stop, and then fell back asleep. This cycle repeated four times.

The Government charged Appellant with abusive sexual contact (Article 120(g) (2006)) (an offense that involves engaging in sexual contact with someone substantially incapable of declining participation in, or communicating unwillingness to engage in, the sexual contact) and wrongful sexual contact (Article 120(m) (2006)) (an offense that involves unlawful sexual contact with another person without their permission). At trial, Appellant “submitted a Motion for Unreasonable Multiplication of Charges for Findings or Finding Charges Multiplicious for Sentencing.” Slip op. at 4. The Government responded “that the offenses were charged not as lesser included offenses, but in the alternative for exigencies of proof,” and that if Appellant were convicted of both offenses then the court “should merge the offenses for calculation of maximum punishment.” Slip op. at 4. Discussing the motion, Appellant’s defense counsel “conceded that the elements test for lesser included offenses was not met and that Appellant’s charge of wrongful sexual contact was not a lesser included offense of abusive sexual contact.” Slip op at 4.

Appellant was then convicted of both offenses and they were merged for sentencing. This merger meant that Appellant was sentenced only for the greater offense (abusive sexual contact). But on appeal Appellant asserted that the lesser offense should be dismissed because it is a lesser included offense of the greater offense. This assertion was directly contrary to the position advanced at trial.

And yet, CAAF grants Appellant the requested relief, dismissing the wrongful sexual contact offense. The court does so because “the Government charged and tried the abusive sexual contact and wrongful sexual contact offenses in the alternative for exigencies of proof.” Slip op. at 9. And it does so unanimously. However, CAAF also finds that Appellant “knowingly waived his right to assert a multiplicity claim on appeal.” Slip op. at 8.

Chief Judge Baker dissents from the waiver decision, asserting that “it is not clear why the majority is reaching so hard to find waiver in a case in which the Court’s unanimous decision renders the issue moot.” Diss. op. at 3. But the Chief Judge’s quest for clarity is likely rhetorical because had the court accepted Appellant’s argument against waiver, it would have marked a major shift in the court’s precedent for claims of ineffective assistance of counsel.

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In United States v. Piolunek, 72 M.J. 830 (A.F.Ct.Crim.App. Oct. 21, 2013), rev. granted, __ M.J. __ (C.A.A.A.F. Apr. 1, 2014), and cert. for rev. filed, __ M.J. __ (C.A.A.F.  Apr. 18, 2014) (CAAFlog case page), the Air Force CCA extended CAAF’s decision in United States v. Barberi, 71 M.J. 127 (C.A.A.F. 2012) (CAAFlog case page), regarding general verdicts of guilt in child pornography cases where some of the images are not actually child pornography, to include a three-prong test for prejudice based on “(1) The quantitative strength of the evidence; (2) The qualitative nature of the evidence; and (3) The circumstances surrounding the offense as they relate to the elements of the offense charged.” Piolunek, 72 M.J. at 838. The AFCCA used this test to affirm Senior Airman Piolunek’s convictions for receipt and possession of child pornography despite finding that some of the twenty-two images submitted to the members did not meet the definition of child pornography (and were therefore constitutionally protected). CAAF will review this decision in the upcoming term.

I’m aware of a few cases in which the AFCCA employed the Piolunek prejudice analysis. One is United States v. Huey, No. 38139 (A.F.Ct.Crim.App. Dec. 4, 2013) (slip op. available here), rev. granted, __ M.J. __ (C.A.A.F. May 12, 2014) (discussed here), and cert. for rev. filed., __ M.J. __ (C.A.A.F. Jun. 11, 2014) (discussed here). In Huey the CCA found that 18 of the 112 images considered by the military judge (sitting as a general court-martial) “either do not meet the legal definition of sexually explicit conduct or the age of the person depicted cannot reasonably be determined” slip op. at 6, but nevertheless affirmed the findings because “the evidence of the appellant’s guilt is overwhelming,” slip op. at 8. The issues before CAAF in Huey are functionally identical to those in Piolunek.

Another case applying Piolunek is United States v. Rieber, No. 38226, 2014 WL 2511366 (A.F.Ct.Crim.App. May 22, 2014) (slip op. not avail. on the CCA’s website) (update: slip op. avail. here). The appellant in Rieber was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of knowing and wrongful possession of one or more visual depictions of a minor engaged in sexually explicit conduct, in violation of Article 134. He was sentenced to confinement for 90 days, reduction to E-3, and a bad-conduct discharge. On automatic review the AFCCA found that “186 of the 198 images that served as the possible basis for the appellant’s conviction do not meet the legal requirements to be visual depictions of a minor engaging in sexually explicit conduct and are, therefore, constitutionally protected.” Rieber at *5. Testing for prejudice, the CCA found that the quantitative strength of the remaining images favored the appellant while the qualitative strength favored the Government. But it reversed the conviction on the basis that “the circumstantial evidence supporting the knowing possession of these images is not overwhelming.” Rieber at *6. The Government has not (yet) appealed Rieber.

The AFCCA decided a third such case a few weeks ago: United States v. Thompson, No. 38269 (A.F.Ct.Crim.App. Jun. 17, 2014) (link to slip op.). The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of three specifications of knowingly and wrongfully possessing one or more visual depictions of minors engaging in sexually explicit conduct, in violation of Article 134. He was sentenced to confinement for two years, reduction to E-1, total forfeitures, and a bad-conduct discharge. The CCA finds that “8 of the 216 charged files do not constitute child pornography and therefore are constitutionally protected.” Slip op. at 8. But it affirms the convictions after concluding “beyond a reasonable doubt that the eight constitutionally-protected images were unimportant in relation to everything else the military judge considered. Thus, any error in the factfinder’s consideration of these 8 images among the 216 admitted in evidence was harmless.” Slip op. at 10.

I anticipate CAAF will grant review (and the Government will cross-certify) Thompson on the same issues as in Piolunek and Huey.

If any readers are aware of other AFCCA cases applying Piolunek, please let me know about them in the comments or by email to zack@caaflog.com

In an order dated July 2, 2014, in United States v. Long, No. 2014-02 (link to order), the Air Force CCA rejects a Government appeal and affirms a military judge’s ruling dismissing four novel specifications of violation of clause 2 of Article 134 (conduct of a nature to bring discredit upon the armed forces). The specifications alleged that the accused used a computer communication system to importune a person under 18 years of age to engage in sexual contact with him (two specifications) and provided a sexually oriented image to a person under 18 years of age (two specifications), both of which are offenses under Mississippi state law. The military judge dismissed the specifications after finding that they were preempted by Article 120b (2012).

The preemption doctrine states that Article 134 cannot be used to prohibit conduct already prohibited by Congress in the other punitive Articles. Preemption applies where (1) Congress intended to limit prosecutions for certain conduct to offenses defined in specific articles of the UCMJ, and (2) the charged offense is composed of a residuum of elements of an enumerated offense under the UCMJ. The preemption doctrine evolved from the conclusion that “the Government could not ‘eliminate vital elements’ from the offenses specified in [the other] article[s] and charge the remaining elements as an offense in violation of Article 134.” United States v. Wright,  5 M.J. 106, 110 (C.M.A. 1978) (quoting United States v. Norris, 8 C.M.R. 36, 39 (C.M.A. 1953)). 

The CCA’s opinion reveals that the Government’s charging decision eliminated the vital element of Article 120b (2012) that a child is someone under the age of 16; the Mississippi statute applies to anyone under the age of 18:

Two of the charged specifications allege the appellee used a computer communication system to importune a minor to engage in sexual contact. The Government argues that, by looking at the Mississippi law, there are five elements of this offense, which are different from those in the Article 120, UCMJ, offense. However, these elements are no different than a charged offense for a violation of Article 120b, UCMJ. We are not convinced by the Government’s argument that use of “a computer communication system” is materially different from using “any communication technology.” The allegation is covered by Article 120b, UCMJ, for lewd acts by intentionally communicating indecent language to a child or committing indecent conduct with a child, or, under Article 80, UCMJ, for soliciting a child to engage in sexual contact. The only difference between the charged offense and the Article 120b, UCMJ, offenses is that the UCMJ applies to communications with children under 16 years of age, while the Mississippi law applies to minors under 18 years of age. The charged specification involves “the dropping of an element of a specifically denounced offense” and converting it to a broader age range. See United States v. Herndon, 36 C.M.R. 8, 11 (C.M.A. 1965). The Government cannot use Article 134, UCMJ, to enlarge the age range of an enumerated offense. See Williams v. United States, 327 U.S. 711 (1946) (Prosecutors could not use Arizona state law under Assimilative Crimes Act to broaden scope of offense to those under 18 years of age when Congress has defined federal law with a narrower scope as to only those under 16 years of age).

The other two specifications allege that the appellee provided “a sexually oriented image to wit: a photograph of an erect penis” to a person who had not attained the age of 18 years. We also find that this is nearly identical to the Article 120b, UCMJ, offense of “intentionally exposing one’s genitalia . . . to a child by any means, including via any communication technology.” Again, the only substantive difference is that the Government seeks to expand the age range to include persons over 16 years of age but under 18 years of age.

Order at 4-5 (emphases added).

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This week at SCOTUS: Two jurisdictionless pro se cert petitions were docketed last week. The first was in Hatley v. United States, No. 14-5131. CAAF denied petitioner’s writ-appeal on April 1, 2014. This is the petitioner’s second attempt to obtain Supreme Court review of his case; the first was discussed here (and details of his court-martial are here and here). The second petition filed last week was in Manciagonzalez v. United States, No. 14-5146. CAAF denied review on January 13, 2014. The NMCCA rejected a factual and legal sufficiency challenge in an opinion available here. The petition was actually filed back in March, but was docketed on July 10.

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

• Finch v. United States, No. 13-1440 (SG waived response; pending conference on Sep. 29) (CAAFlog case page)
• Hornback v. United States, No. 13-1533 (SG waived response; pending conference on Sep. 29) (CAAFlog case page)
• McMurrin v. United States, No. 13A1242 (extension of time to file cert petition granted until Aug. 29)
• Manciagonzalez v. United States, No. 14-5146 (jurisdictionless petition; response due Aug. 11)
• Hatley v. United States, No. 14-5131 (jurisdictionless petition; response due Aug. 8)

This week at CAAF: The next scheduled oral argument at CAAF (and the first argument of the September 2014 term) is on September 9, 2014.

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

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’s website shows no scheduled oral arguments.

A little off topic.

Capt Magee recently reported for duty at Navy Appellate Defense.

http://www.marinecorpstimes.com/article/20140711/NEWS/307110058

Older former NADC’s should be familiar with Leg Day.  There is a picture of at least one, with a couple of recognizable figures.

Magee will fit right in with a hoppy leg day.

Two weeks ago, in this post, I discussed the Army CCA’s unpublished opinion in United States v. Hardin, No. 20120051 (A.Ct.Crim.App. Jun. 12, 2014) (link to unpub op.), in which the court found the appellant’s conviction for housebreaking to be legally sufficient but factually insufficient because the court was not convinced that the appellant’s entry into a bedroom was itself unlawful.

Shortly after the CCA decided Hardin, it issued a published decision in United States v. Schwin, No. 20130538, __ M.J. __ (A.Ct.Crim.App. Jun. 26, 2014) (link to slip op.), finding that the military judge erred in accepting the appellant’s plea of guilty to housebreaking for entering into the base skeet club building from which the appellant stole money. The appellant was a member of the Fort Rucker Skeet and Trap Club (a private organization). The club had a building on Fort Rucker that members could access 24 hours a day, and as a club member the appellant had authorized access to this building.

Using his authorized access, the appellant entered the building and stole money from a locked deposit box where members would pay shooting fees when utilizing the facility while no staff were present. For this theft he was charged with and pleaded guilty to one specification each larceny and housebreaking, at a special court-martial composed of a military judge alone. He also pleaded guilty to two specifications of violation of a general regulation for wrongfully maintaining privately owned firearms in his barracks and vehicle. He was sentenced to confinement for four months, reduction to E-1, and a bad-conduct discharge.

Housebreaking requires two elements: An unlawful entry and the intent to commit a crime therein. The Government’s theory of the housebreaking charge in this case was that:

[I]t’s an unlawful entry because of [appellant's] intent. He went in on this occasion … used his key, though it was issued— with the sole intent of committing a crime … [which] does constitute housebreaking. Though he had lawful access, the fact that he used his lawful access … to gain access for unlawful purposes constitutes housebreaking.

Slip op. at 6 (emphasis added). Accepting this theory during the plea inquiry, the military made a finding that:

[Appellant] did not have permission to enter the building for an illegal purpose, and certainly did not have permission to enter the building to perpetrate a theft once inside. So for the purpose of considering whether or not the factual scenario meets the criteria for housebreaking, the Court accepts the conclusions of counsel and [appellant] that this does constitute housebreaking.

Slip op. at 7. But the CCA reverses on the basis that “unlawful entry is not established through a showing of mere ingress with contemporaneous criminal intent.” Slip op. at 4 (quoting United States v. Williams, 15 C.M.R. 241, 246 (C.M.A. 1954)) (marks omitted). In other words, to gain access for unlawful purposes does not constitute housebreaking. The court explains that unlawful entry “is distinct from the second element of specific intent to commit a crime upon entry.” Slip op. at 4. And on the fact of this case it finds:

[T]he fundamental legal question to be answered [is]: absent the offense committed therein, was appellant’s entry unlawful—that is, did he trespass? In this case, appellant did not trespass when he entered the club. If appellant had not committed larceny, his entry, presence, and activities in the Skeet Club were authorized, permitted, and invited. Appellant is not guilty of housebreaking, but certainly guilty of larceny.

Slip op. at 8 (citation omitted). The court therefore reverses the appellant’s housebreaking conviction and grants a slight reduction to the sentence to confinement (meaningless to the appellant as the time was undoubtedly already served).

CAAF decided the Army case of United States v. Flesher, No. 13-0602/AR, __ M.J. __ (CAAFlog case page) (link to slip op.), on Tuesday, July 8, 2014. A fractured court finds that the record does not provide an adequate basis to demonstrate that the military judge acted within the bounds of his discretion when he permitted the expert testimony of a former sexual assault response coordinator (SARC), and that the Government failed to show that this error was harmless, reversing the decision of the Army CCA and the appellant’s conviction for aggravated sexual assault.

Judge Ohlson writes for the court, joined by Judges Erdmann and Stucky. Chief Judge Baker dissents, finding neither error nor prejudice. Judge Ryan also dissents, finding greater error than the majority, but she joins Chief Judge Baker in finding no prejudice.

The case presents a Daubert challenge to the Government’s presentation of a former SARC as an expert witness at trial and her testimony that in her experience sexual assault victims almost never fight back against their attacker, almost never scream or call for help, and generally first report the attack to a friend or family member and not to law enforcement. But the witness did not examine the victim and her testimony was based on her own anecdotal experience with suspected victims of sexual assault. CAAF granted review of the following issue:

Whether the military judge abused his discretion when he admitted the testimony of a putative expert witness in violation of the military rules of evidence and case law on bolstering, expert qualifications, relevance, and the appropriate content and scope of expert testimony.

The appellant entered mixed pleas at a general court-martial in 2011. He pleaded guilty to, and was convicted of, two specifications of furnishing alcohol to a minor as an assimilated offense under Article 134. He pleaded not guilty to one specification of aggravated sexual assault in violation of Article 120 (2006) and one specification of burglary with intent to commit rape. A panel of members with enlisted representation convicted the appellant of the sexual assault, acquitted him of the burglary, and sentenced him to confinement for seven years, reduction to E-1, total forfeitures, and a dishonorable discharge.

The facts of the case involve a sexual encounter between the appellant and a 16 year-old girl, in her bedroom at her parent’s house, after she consumed alcohol at the appellant’s home with the appellant and the girl’s 15 year-old brother. The sexual encounter occurred while the girl’s brother slept on a couch approximately 20 feet from the girl’s open bedroom door. Both the girl and the appellant testified at trial about the encounter: The appellant asserted a consensual encounter while the girl asserted the opposite. All agreed that the girl didn’t fight back against the appellant and that she didn’t scream or otherwise call out to her brother who she knew was sleeping nearby.

At trial the military judge allowed the Government to call the former SARC (whose name was Ms. Falk) as an expert witness over the objection of the Defense. But the military judge did a poor job of addressing the Defense objections relating to Ms. Falk, and CAAF’s resolution of the case turns on this failure. Judge Ohlson finds that an early email from the judge “did not address the question of the admissibility of Ms. Falk’s testimony; it merely assumed it.” Slip op. at 6. He notes that “the military judge did not approach his evidentiary rulings in a methodical manner.” Slip op. at 17. And he concludes that:

Here, the military judge delayed ruling on the defense’s request for a continuance and the defense’s motion to compel Dr. Grieger until the morning of trial, denied the motion to compel based on his experience in other cases rather than strictly on the facts of this particular case, did not affirmatively address the defense’s request for a Daubert hearing, did not address the Houser factors, did not explicitly deny on the record the defense’s motion to exclude the testimony of Ms. Falk, did not provide any findings of fact, and did not apply the law to the facts to support his decision to admit Ms. Falk’s expert testimony. Of these concerns, the most important is the fact that the military judge did not conduct even a rudimentary Daubert hearing — despite the fact that the defense specifically and repeatedly requested one — or even briefly address the various Houser factors. As a result, we are left with a limited understanding of the military judge’s decision-making process and, accordingly, we give his decisions in this case less deference than we otherwise would.

Slip op. at 20-21 (emphasis added). In the absence of the significant deference normally afforded a trial-stage ruling permitting a witness to testify as an expert, Judge Ohlson and the majority conduct a de novo review of the admissibility of Ms. Falk’s testimony, employing the six-factor test from United States v. Houser, 36 M.J. 392 (C.M.A. 1993), where the court affirmed the admission of the testimony of a Government expert on rape trauma who did not interview the victim.

But this review begins with a clear caveat “affirm[ing] the appropriateness of allowing expert testimony on rape trauma syndrome where it helps the trier of fact understand common behaviors of sexual assault victims that might otherwise seem counterintuitive or consistent with consent.” Slip op. 23. And Judge Ohlson repeatedly emphasizes that the court’s decision is based on the unique circumstances presented in this case.

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Back in April, in this post, I discussed the Air Force CCA’s decision on a Government interlocutory appeal in United States v. Buford, No. 2013-26 (A.F.Ct.Crim.App. Apr. 4, 2014) (link to order).

The appeal involved the suppression of evidence discovered on both the accused’s electronic devices (a laptop and a thumb drive) and on external accounts accessed through one of those electronic devices (a Facebook page and an email account). The military judge found that a security forces member was acting in an official capacity when, at request of the accused’s spouse, he viewed and collected evidence from the accused’s Facebook account, e-mail account, and thumb drive, and that he violated the accused’s reasonable expectation of privacy.

The CCA found that the accused’s wife gave valid consent for a search of the laptop and thumb drive, but not for a search of the third-party internet sources utilizing the laptop, and partially affirmed the judge’s ruling suppressing the third-party sources, writing:

We concur with the military judge’s determination on the issue of consent. AB [the wife] gave consent to the search of the Dell laptop and had both actual and apparent authority over that laptop. Nevertheless, we also agree that consent to search the Dell laptop did not extend to the Facebook and email accounts of the appellee. Consent to search an electronic device does not automatically extend to consent to search all electronic “papers” not contained on the device but accessed through the device. Here, A1C RM had clear indications the “fake” Facebook account and the e-mail account belonged to the appellee. The e-mail account was password protected. The evidence is that A1C RM should have known the e-mail account was not under the authority of AB. Although AB had knowledge of the password, this does not automatically result in a conclusion that she had actual or apparent authority over an otherwise private separate account maintained by her husband. In an Article 62, UCMJ, appeal for a motion to suppress, we review the evidence in the light most favorable to the prevailing party at trial. A third-party’s control over property or effects is a question of fact. We concur with the military judge’s ruling that the Government failed to meet its burden of establishing that the consent exception applied to the search of the Facebook and e-mail accounts.

Order at 6 (citations omitted).

At the time of the post, I predicted that the Air Force would certify the case to CAAF. A few weeks later I identified an overall appearance of bias in the certification of cases by the Judge Advocate General of the Air Force. Yesterday, the Air Force certified Buford:

No. 14-6010/AF.  U.S. v. Aaron M. BUFORD. CCA 2013-26. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals and supporting brief were filed under Rule 22 this date on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION BY SUPPRESSING EVIDENCE FROM THE DELL LAPTOP, HEWLETT-PACKARD LAPTOP, AND CENTON HARD DRIVE.

I’ll be interested to see facts that explain why the Air Force is pursuing this litigation rather than just serving a subpoena on Facebook and the email provider (based on the information provided by the accused’s wife prior to the search).

Here is a link to a Virginian Pilot interview and WTKR interview here, with former Virginia Beach Commonwealth’s Attorney Harvey Bryant on his dissent from the report by the Response Systems Panel on Military Sexual Assault.  Prior coverage here.  Bryant and former NIMJ President Prof. Elizabeth Hilman both dissented and called for an independent and legally trained convening authority outside of the chain of command.  H/t GMJR here and here (via RK)

While we typically shy away from self promotion, I really think the new contributors to the blog deserve the same type of recognition that the blog got back in 2008 when the ABA Journal named us to 2008 ABA Blawg 100, as one of the top 100 legal blogs as selected by editors at the ABA Journal.

To do that this year, I think we need some help.  There is now a Blawg 100 Amici page that allows fans of law blogs to nominate them for inclusion in the Top 100.  Submit your nomination for any of your favorite law blogs by no later than 5 p.m. ET on Aug. 8, 2014.

Here are some of our favorite posts from 2013-14, feel free to add yours in comments

• 2013 Top Ten List #1
• UCMJ Changes 6 part series, Part 1, Part 2, Part 3, Part 4, Part 5, Part 6

CAAF’s oral argument calendar was updated today, listing the date and case of the first oral argument of the September 2014 Term:

Tuesday, September 9, 2014
9:30 a.m.:

United States v.	Ruben Vargas	No. 14-6009/MC
(Appellee)	(Appellant)

Counsel for Appellant:  LtCol Richard A. Viczorek, USMCR
——————————– (supplement)
—————————————– (reply)
Counsel for Appellee:  Maj David N. Roberts, USMC (answer)

Case Summary: Special court-martial prosecution for assault consummated by a battery. Granted issue questions whether the Navy-Marine Corps Court of Criminal Appeals erroneously interpreted Article 62, UCMJ, to allow a Government appeal of the military judge’s denial of a continuance request as well as the military judge’s order resting the Government’s case.

NOTE: Counsel for each side will be allotted 20 minutes to present oral argument.

I discussed the NMCCA’s decision in Vargas in a March post titled: The NMCCA finds that Article 62 authorizes appeals of recesses.

The online version of CAAF’s daily journal is usually a full day behind (i.e., today’s update posted yesterday’s activity), so while I normally post the daily journal entry for CAAF grants, we won’t have that until tomorrow at the earliest.