CAAF decided the Air Force case of United States v. Killion, __ M.J. __, No.15-0425/AF (CAAFlog case page) (link to slip op.), on April 19, 2016. A divided court holds that the military judge failed to properly instruct the members on the offense of wrongfully using provoking speech because he directed the members to consider the speech from the perspective of a hypothetical average person rather than from the perspective of the actual audience. CAAF reverses the appellant’s conviction for violation of Article 117 and the decision of the Air Force CCA, and remands the case for further review.

Judge Ryan writes for the court, joined by Chief Judge Erdmann and Judge Diaz (of the 4th Circuit, sitting by designation). Judge Ohlson dissents, joined by Judge Stucky who also writes a separate dissenting opinion.

CAAF granted review of two issues in this case:

I. Whether appellant’s conviction for provoking speech is legally insufficient because “under the circumstances” his words were not reasonably likely to provoke violence.

II. Whether the military judge’s instructions regarding provoking speech were deficient under the facts and circumstances of appellant’s case.

At a special court-martial the appellant pleaded guilty to drunk and disorderly conduct and unlawful entry in violation of Article 134, and not guilty to resisting apprehension in violation of Article 95 and wrongfully using provoking speech in violation of Article 117. A panel of members with enlisted representation convicted the appellant of the speech offense, acquitted him of resisting apprehension, and then sentenced him to confinement for 14 days, reduction to E-1, a reprimand, and a bad-conduct discharge.

Only the appellant’s speech offense is at issue in CAAF’s review, and it was based on the following facts:

After a night of excessive drinking, [A]ppellant became belligerent and disorderly, accosting strangers with profane outbursts and resisting his friend’s efforts to convince him to return home. Instead, [A]ppellant jumped a fence and entered the apartment of a noncommissioned officer (NCO) he did not know, frightening the residents and neighbors who called security forces. [A]ppellant was apprehended and evaluated on scene by emergency medical technicians who decided to transport him to the base emergency room.

Once there, while undergoing treatment for his altered mental state and injuries to his wrist and knee, [A]ppellant lashed out at the medical providers both physically and verbally. Struggling against restraint by two security forces members and the medical staff, he verbally accosted several medical providers, calling one female nurse a “c[**]t” and medical technicians “Asian douche bags” and “ch[*]nk.” This continued intermittently for over an hour, ending only after the medical staff determined it was necessary to sedate him.

Slip op. at 3-4 (quoting CCA’s opinion). Further, despite the appellant’s violent actions and offensive language, the medical personnel attending to him “did not consider responding to Appellant violently.” Slip op. 4. Additionally, medical personnel testified that they were trained to handle unruly patients without reacting violently, and that such reactions were highly unusual.

A conviction for wrongfully using provoking speech in violation of Article 117 requires that the Government prove that the speech was provoking or reproachful, and the Manual for Courts-Martial explains that those terms mean “those words or gestures which are used in the presence of the person to whom they are directed and which a reasonable person would expect to induce a breach of the peace under the circumstances.” Part IV, ¶ 42.c(1), Manual for Courts-Martial (2012 ed.). At trial the appellant’s defense counsel asked the military judge to instruct the members that they were to consider the provoking or reproachful nature of the appellant’s speech in the context of the specific facts and circumstances of the appellant’s case (including the training and experience of the medical personnel who heard the words). However, the military judge denied the defense request and instead instructed the members that

The test to apply is whether, under the facts and circumstances of this case, the words described in the specification would have caused an average person to react by immediately committing a violent or turbulent act in retaliation. Proof that a retaliatory act actually occurred is not required.

Slip op. at 5-6 (emphasis in original).

Writing for the majority, Judge Ryan finds that this instruction was erroneous and that the defense request for a different instruction was sufficient to preserve the error and place the burden on the Government to prove the error harmless beyond a reasonable doubt. Then, considering the defense strategy and the Government’s closing argument, she finds that the error was not harmless.

Judge Ohlson’s dissent, however, reviews the instruction for plain error because he concludes that the appellant’s mere request for a different instruction (and failure to object to the instruction actually given) did not preserve the error. Applying the plain error standard – where the appellant has the burden to prove prejudice – he finds the instruction adequate and would affirm the conviction.

Judge Stucky joins Judge Ohlson’s dissent and would also affirm the conviction, but he also writes separately to suggest that the provoking or reproachful nature of speech should be evaluated not from the perspective of the person to whom the words were directed but rather by the situation in which the words were used.

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So says Protect Our Defenders according to AP (story here). And while the folks at Protect Our Defenders apparently weren’t able to communicate how the MilJus system works to AP, see if you can spot the glaring error in the story, was the data provided to Congress about civilian declinations skewed?   POD released a report Monday allegedly debunking the military data:

The records were obtained through the Freedom of Information Act by the advocacy group Protect Our Defenders, which provided the documents exclusively to AP. Protect Our Defenders is scheduled to release a report Monday that criticizes the Pentagon’s use of the cases to undermine support for Senate legislation that would mandate a major change in the way the military handles sexual assault allegations.

Here is the POD report. I have not reviewed their analysis. But we will update with our thoughts. 

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

This week at CAAF: The next scheduled oral argument at CAAF is on April 26, 2016.

This week at the ACCA: The Army CCA’s website is still not accessible to the public (discussed here). I’m not aware of any scheduled oral arguments at the Army CCA.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on May 11, 2016.

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

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

In an era when victims’ interests and the failures of the Department of Defense to adequately address sexual assault within its ranks are constant messages, perhaps SSgt Marks’s experience will remind us of the traumas suffered by the innocents accused and serve as a caution to those wielding the awesome power to prosecute.

That’s the final sentence of a compelling article in the most recent issue of the Air Force Reporter: Major Christopher J. Goewert, The Accused The Unacknowledged Victim of the Military’s Robust Prosecution of Sexual Assault, The Reporter, Vol. 43, No. 1 (2016) (direct link to article).

The article describes a sexual encounter, a subsequent (and lengthy) investigation, and the eventual acquittal of an Air Force accused (SSgt Marks is a pseudonym):

The investigation continued for over a year as determined agents located all of the party-goers and obtained statements which painted a picture of a consensual group romp—a spur of the moment orgy, which was embarrassing in retrospect, but to the guests was not criminal. SSgt Marks was duly charged with wrongful sexual contact and indecent acts.

The author’s use of the term duly charged is, itself, a little terrifying. But the article includes details of actual terror experienced by the accused:

My mind overflowed with the thoughts of what could happen: the odds were not in my favor. I was worried that everyone would believe her because she was saying she was a victim and wouldn’t believe in me. I felt like the decision was already made and I was fighting a losing battle—it was like I saw a wrongful judgment would be forced on me and there was nothing anyone could do to change it. I broke down and cried a handful of times. I became fatalistic about it.

In United States v. Mercier, __ M.J. __, No. 20160318 (C.G. Ct. Crim. App. Mar. 18, 2016) (link to slip op.), a three-judge panel of the court denies a Government interlocutory appeal of a military judge’s ruling that found that a specification was improperly referred and dismissed the specification without prejudice.

The specification at issue alleges a violation of Article 134 by communicating certain indecent language to a civilian woman. The woman did not participate in the Article 32 preliminary hearing, and the preliminary hearing officer’s report concluded that there was no probable cause to believe that the accused communicated the language because of the lack of evidence. Nevertheless, the convening authority’s staff judge advocate recommended referral of the charge on the basis that “the specification is supported by the expected testimony of Ms. C.M.” Slip op. at 2.

The specification was referred to a general court-martial, the accused objected, and the military judge agreed:

On November 25, 2015, the defense moved to dismiss Specification 6 of Charge II, arguing that (1) since no probable cause existed to support Charge II, specification 6, referral to a general court-martial violated the accused’s right to due process; and (2) that the Article 34 advice was misleading in that it stated that the charges were “warranted by the evidence indicated in [the PHO’s report].” A hearing on the defense’s motion was held on 14 December 2015. The military judge granted the defense’s motion on January 5, 2016, dismissing Specification 6 of Charge II. The military judge also held that “even if a determination by the PHO that probable cause exists is not a necessary precondition to referral to a GCM . . . to the extent the Article 34 advice relied on evidence not before the PHO, it is defective.”

Slip op. at 3 (omission in original).

Judge Judge, writing for the CCA, addresses only the military judge’s conclusion that the staff judge advocate’s advice was defective because it relied on expected testimony that was not part of the preliminary hearing report, concluding that “the Article 34 advice was therefore defective.” Slip op. at 5.

This conclusion involves two significant holdings.

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Update: Links to the briefs are at the end of this post.

In this post I noted CAAF’s docketing of a writ-appeal petition by an apparent alleged victim.

Yesterday CAAF granted review:

No. 16-0398/MC. EV, Appellant v. E.H Robinson, Military Judge, Appellee, and David A. Martinez, Real Party in Interest. Upon consideration of the writ-appeal petition of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, the motion of Protect Our Defenders to file a brief in support of the writ-appeal petition as amicus curiae, and the motion for a stay of trial proceedings, it is ordered:

That the motion of Protect Our Defenders to file a brief in support of the writ-appeal petition as amicus curiae is granted;

That oral argument will be held on May 11, 2016, following the hearing in Howell v. United States, on the following three assigned issues:




That oral argument will also be held on the following specified issue:


That Appellant will file a brief on the specified issue within 5 days of the date of this Order. Appellee and the Real Party in Interest will file answers within 5 days of the filing of Appellant’s brief. Appellant may file a reply within 2 days of the filing of the said answers;

That the motion for a stay of trial proceedings, incorporated in the writ-appeal petition, is denied because Rule 30(d), Rules of Practice and Procedure, prohibits a motion from being incorporated in any other pleading.

The specified issue immediately bring to mind Judge Ryan’s dissent in LRM v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013) (CAAFlog case page).

Case Links:
Writ-appeal (Appellant’s) petition
Appellee’s (Government) brief
Real Part in Interest (accused’s) brief
Appellant’s reply brief
Brief of Amicus Curiae (Protect our Defenders)

R.C.M. 1001(b)(2) permits Government counsel to introduce documents from an accused’s service record during the sentencing phase of a court-martial to prove “the accused’s marital status; number of dependents, if any; and character of prior service.”

But in United States v. Ponce, __ M.J. __, No. 20140556 (A. Ct. Crim. App. Mar. 11, 2016) (link to slip op.), the Government was allowed to introduce (over defense objection) the appellant’s entire official military personnel file (OMPF), including:

appellant’s United States Office of Personnel Management Standard Form 86, Questionnaire for National Security Positions (revised September 1995) . . . In response to questions on the SF 86, appellant listed offenses he had been arrested for, charged with, or convicted of, and described his experimental use and possession of illegal drugs. All incidents and activities appellant entered on the SF 86 predated his military service, and several entries involved juvenile misconduct.

Slip op. at 2. The CCA finds error:

We hold the military judge erred by admitting the SF 86 included in PE 2 under the facts of this case. Information that is properly maintained in a military personnel record is not automatically admissible under R.C.M. 1001(b)(2).

Slip op. at 5. In particular, the CCA notes that the military judge focused his analysis of the SF 86 on whether it qualified as a business record rather than on whether it was probative of the appellant’s character of prior service as required by the R.C.M.:

In this case, the military judge lost sight of the service connection parameters of R.C.M. 1001(b)(2). In response to defense counsel’s hearsay objection, the military judge erred by exclusively focusing on whether the SF 86 in PE 2 was a business record under Mil. R. Evid. 803(6) that was properly authenticated in compliance with Mil. R. Evid. 902. While R.C.M. 1001(b)(2) provides an opportunity for the government to introduce evidence from appellant’s personnel records regarding his character of prior service, an SF 86 security clearance questionnaire filled with information that predates appellant’s enlistment is not admissible under this rule. The relevance of the SF 86 does not expand to reflect appellant’s military history merely because the document is in his OMPF.

Slip op. at 6.

Yesterday CAAF granted review of an issue raise by the appellant personally:

No. 16-0360/AR. U.S. v. Todd D. Sewell. CCA 20130460. Appellant’s petition for grant of review of the decision of the United States Army Court of Criminal Appeals is granted on the following issue personally asserted by the Appellant:


Briefs will be filed under Rule 25.

The CCA’s opinion is available here.

This is the third Grostefon issue granted this term; the first was in United States v. Caldwell, No. 16-0091/AR (CAAFlog case page), and the second was in United States v. Nieto, No. 16-0301/AR (discussed here). All three are Army cases.

In United States v. Lieutenant Colonel Jones, Military Judge, and Howell, Real Party in Interest, No. 201200264 (N-M. Ct. Crim. App. Dec. 29, 2015) (discussed here), the NMCCA split 4-4 to partially grant the Government’s post-trial petition for extraordinary relief from the military judge’s ruling that it was unlawful punishment to fail to pay the accused at his restored grade of E-6 after his case was reversed on appeal. The Navy JAG subsequently certified the case to CAAF (discussed here) and the accused also filed a writ-appeal petition.

Judge Ryan has recused herself from the case:

Notice of Recusal and Designation

Nos. 16-0289/MC and 16-0367/MC. U.S. v. Stephen P. Howell. CCA 201200264.  Notice is hereby provided that Judge Margaret A. Ryan has recused herself from participation in the above-captioned case. At the request of Chief Judge Charles E. “Chip” Erdmann, Chief Justice John G. Roberts, Jr., has designated Senior Judge Royce C. Lamberth of the United States District Court for the District of Columbia to perform the duties of a Judge of the United States Court of Appeals for the Armed Forces in this case pursuant to Article 142(f), Uniform Code of Military Justice, 10 U.S.C. § 942(f) (2012).

Recusals are rare at CAAF. I’m only aware of a few in recent history:

  • Judge Ohlson’s recusal from United States v. Newton, 74 M.J. 69 (C.A.A.F. Feb. 25, 2015) (CAAFlog case page).
  • Judge Ryan’s recusal from United States v. Hernandez, No. 15-0178 (C.A.A.F. Jul. 16, 2015) (vacated as improvidently granted).
  • The recusal of then-Chief Judge Effron, Judge Baker, and Judge Ryan from United States v. Schweitzer, 68 M.J. 133 (C.A.A.F. 2009), and United States v. Ashby, 68 M.J. 108 (C.A.A.F. 2009).

CAAF decided the certified Air Force case of United States v. Atchak, __ M.J. __, No. 16-0054/AF (CAAFlog case page) (link to slip op.), on Tuesday, April 12, 2016. Observing that Article 66(d) permits – but does not require – a court of criminal appeals to authorize a rehearing when it disapproves a finding of guilty, CAAF finds that the Air Force CCA did not abuse its discretion by not authorizing a rehearing in this case. The court answers the certified question in the negative and affirms the CCA’s decision that reversed the appellee’s guilty pleas to aggravated assault for engaging in unprotected sexual contact with two fellow servicemen after the appellee was informed that he is HIV-positive.

Judge Ryan writes for a unanimous court.

The appellee pleaded guilty to two orders violations, one specification of dereliction of duty, and three specifications of aggravated assault by a means likely to cause death or grievous bodily injury in violation of Articles 92 and 128, and was sentenced to confinement for three years, total forfeitures, and a bad-conduct discharge. The orders violations and aggravated assaults arose out of the appellee’s unprotected sexual activity with other Airmen after the appellee was informed that he is HIV-positive and was ordered to inform his partners of his status and only engage in protected sexual activity. On appeal, however, the Air Force CCA applied CAAF’s recent decision in United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. Feb. 23, 2015) (CAAFlog case page), to reverse the pleas of guilty to aggravated assault, finding insufficient evidence of a risk of transmission of HIV from the appellee to his sexual partners. The CCA also found that it could not affirm a conviction of the lesser included offense of assault consummated by a battery because the plea inquiry did not adequately address the defense of consent. Accordingly, the CCA dismissed the assault charge and reassessed the sentence (reducing it to confinement for eight months and a bad-conduct discharge).

The Judge Advocate General of the Air Force then certified the case to CAAF with the following issue:

Whether the Air Force Court of Criminal Appeals erred in setting aside and dismissing the specifications of aggravated assault without authorizing the convening authority to order a rehearing for the lesser included offenses of assault consummated by a battery.

Judge Ryan’s opinion highlights the discretionary nature of a CCA’s decision to authorize a rehearing and resolves this case on the absence of evidence that the Air Force court abused its discretion. But while the Government loses the battle, I think it wins the war.

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That’s functionally the conclusion reached by a three-judge panel of the Navy-Marine Corps CCA in United States v. Guin, No. 201500062 (N-M. Ct. Crim. App. Feb. 11, 2016) (link to slip op.).

The appellant was charged with sexual assault and abusive sexual contact, in violation of Article 120(b) and (d) (2012), by committing a sexual act and causing sexual contact with the alleged victim “by causing bodily harm to her.” Slip op. at 4. The bodily harm at issue was the sexual activity itself, as the specifications alleged:

Abusive sexual contact: “Specification 1: Art.120(d): In that [the appellant], did, at or near Juffair, Kingdom of Bahrain, on or about 13 June 2013, cause sexual contact by [MASN LA], to wit: touching his penis with her hand, by causing bodily harm to her, to wit: touching his penis with her hand.”

Sexual assault: “Specification 2: Art. 120(b)(1)(B): In that [the appellant], did, at or near Juffair, Kingdom of Bahrain, on or about 13 June 2013, commit a sexual act upon [MASN LA], to wit: penetrating the vulva of [MASN LA], with his penis by causing bodily harm to her, to wit: penetrating the vulva of [MASN LA], with his penis.”

Slip op. at 4. This is a permissible method of charging these offenses because:

The term ‘bodily harm’ means any offensive touching of another, however slight, including any nonconsensual sexual act or nonconsensual sexual contact.

Article 120(g)(3) (2012). Nevertheless, the appellant moved to dismiss the specifications at trial, asserting that they fail to state offenses. Specifically, the appellant claimed that “by pleading the sexual activity as the basis of the alleged bodily harm, the Government fatally omitted the victim’s lack of consent as a separate element.” Slip op. at 4.

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Love the argument in the Akbar v. United States, No. 15-1257, Petition for Certiorari (here).

Ring v. Arizona, 536 U.S. 584 (2002) held that aggravating factors in capital cases constitute elements of the crime that must be tried to a jury. Does it violate the Constitutional separation-of-powers or exceed statutory authority for the President, rather than Congress, to prescribe the aggravating-factor elements that permit a court-martial to impose a death sentence on a member of the armed forces.

Scintillating reading ladies and gentlemen, scintillating.

While American law generally prohibits using a person’s bad character to prove them guilty of a criminal offense, Congress created two exceptions (for sexual offenses) with the enactment of Federal Rules of Evidence 413 and 414 in the Violent Crime Control and Law Enforcement Act of 1994, § 320935, 108 Stat. 1796, 2135 (1994). Those Rules were incorporated into the Military Rules of Evidence in 1998. Exec. Order No. 13086, 63 Fed. Reg. 30,065, 30078 (June 2, 1998). But for years those Rules were used to introduce evidence of uncharged acts against an accused, and not to argue that the charged acts themselves were evidence of an accused’s propensity to commit those same alleged acts.

However, the #6 Military Justice Story of 2015 was the use of charged sex offenses as propensity evidence under Mil. R. Evid. 413. Three courts of criminal appeals issued opinions in 2015 approving the use of charged sexual offenses as evidence of an accused’s propensity to commit the charged sexual offenses. United States v. Barnes, 74 M.J. 692 (A. Ct. Crim. App. May 8, 2015) (discussed here), pet. denied, 75 M.J. 27 (C.A.A.F. July 28, 2015); United States v. Bass, 74 M.J. 806 (N-M. Ct. Crim. App. Aug. 18, 2015) (discussed here); United States v. Maliwat, No. 38579 (A.F. Ct. Crim. App. Oct. 19, 2015) (unpub. op) (discussed here), pet. for rev. filed, __ M.J. __, No. 16-0155/AF (C.A.A.F. Nov. 25, 2015). The Army CCA justified this action in Barnes with the explanation that:

We find no prohibition against or reason to preclude the use of evidence of similar crimes in sexual assault cases in accordance with Mil. R. Evid. 413 due to the fact that the “similar crime” is also a charged offense.

74 M.J. 697-698. This justification faces significant challenges, as CAAF granted review in two Army cases earlier this year involving charged offenses used as propensity evidence under Mil. R. Evid. 413 and 414: United States v. Hills, No. 15-0767/AR (discussed here), and United States v. Moynihan, No. 16-0277/AR (discussed here).

Recently, though, in United States v. Williams, __ M.J. __, 20130582 (A. Ct. Crim. App. Feb. 29, 2016) (link to slip op.), the Army CCA reversed its own precedent regarding the instructions that a military judge must give to a panel considering such propensity evidence.

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This week at SCOTUS: The Court denied cert. in Katso (noted here). A new cert. petition was filed in Akbar v. United States (CAAFlog case page). Last year CAAF split 3-2 to affirm Sergeant Akbar’s death sentence for his attack on fellow soldiers in Kuwait in 2003 that killed two and wounded 14 others. Akbar is one of only six military death row inmates.

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

This week at CAAF: The next scheduled oral argument at CAAF is on April 26, 2016.

This week at the ACCA: The Army CCA’s website is still not accessible to the public (discussed here). I’m not aware of any scheduled oral arguments at the Army CCA.

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

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

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case on Thursday, April 14, 2016, at 10 a.m.:

United States v. Valladares-Garcia

Case summary: A panel of members with enlisted representation sitting as a general court-martial convicted appellant, contrary to his pleas, of making a false official statement, sodomy, and adultery in violation of Articles 107, 125, and 134, UCMJ, 10 U.S.C. §§ 907, 925, and 934 (2012). The members sentenced appellant to two years’ confinement, forfeiture of all pay and allowances, reduction to pay grade E-1, and a bad-conduct discharge. The Convening Authority approved the sentence as adjudged and, except for the punitive discharge, ordered the sentence executed.

I. The Fifth and Sixth Amendments give appellant a substantial right to fair notice of the charge against him. Charge II (consensual sodomy) fails to expressly allege a Marcum factor and therefore fails to state an offense. The government failed to cure the defect by not providing notice through the presentation of evidence. Should Charge II be dismissed?
II. The Government must prove each element of an offense beyond a reasonable doubt. Here, the Government failed to introduce sufficient evidence to prove Charge III (adultery). Specifically, the Government failed to introduce sufficient evidence that sexual intercourse occurred between appellant and Ms. MM or that the appellant’s alleged adultery was prejudicial to good order and discipline or had a tendency to bring the armed services in to disrepute or lower it in the public esteem. Is the adultery conviction legally and factually sufficient?

Audio of this week’s Project Outreach oral arguments is available at the following links:

United States v. Harrell, No. 16-007/AF (CAAFlog case page): Oral argument audio

United States v. Martin, 15-0754/MC (CAAFlog case page): Oral argument audio