CAAF decided the Army case of United States v. Harris, __ M.J. __, No.18-0364/AR (CAAFlog case page) (link to slip op.), on May 16, 2019. The court finds that the military judge rightly denied 291 days of credit for civilian pretrial confinement, affirming the published decision of the Army CCA.

Judge Ryan writes for a unanimous court.

In 2013, Staff Sergeant (E-6) Harris was arrested by Florida authorities and charged with 44 counts of possessing child pornography. He was released on bond pending trial. He absconded, fleeing to Cambodia.

Eventually, Harris surrendered and was confined by Florida authorities (not at the request of military authorities), and Florida added a felony charge of failure to appear. Ultimately, however, the state prosecutor elected not to pursue a child pornography conviction because the state was unable to secure a key witness. Instead, Harris pleaded no contest to the failure to appear and was sentenced to confinement for 364 days. But by that point, Harris had spent 655 days in pretrial confinement; 291 days more than his state sentence.

After the state completed the prosecution, the Army took its turn. Harris was charged with possession of child pornography and desertion, eventually pleading guilty to both and receiving a sentence of confinement for five years, reduction to E-1, and a bad-conduct discharge. The military judge ordered that Harris receive 191 days of confinement credit for time spent in military pretrial confinement, but he denied Harris’ request for an additional 291 days of credit for the time spent in civilian pretrial confinement in excess of the state sentence. The military judge did so after concluding that those days of confinement were for the charge of failure to appear that occurred after Harris’ desertion and possession of child pornography, meaning that they were ineligible for credit under the applicable DoD regulation. On appeal, the Army CCA agreed with the military judge. CAAF then granted review of one issue:

Whether the Army court erroneously affirmed the military judge’s denial of 291 days of Allen credit for pretrial confinement Appellant served in a civilian confinement facility awaiting disposition of state offenses for which he was later court-martialed.

Judge Ryan’s opinion for the unanimous CAAF is short and to the point, concluding:

The record provides adequate support for [the military judge’s] determination. First, Appellant was only placed in pretrial confinement after he fled to Cambodia while out on bond and was charged with failure to appear after his return to the United States. Second, Appellant was not confined for the child pornography charges prior to his flight to Cambodia. It seems perfectly accurate to say that Appellant was placed in confinement because he fled the country and failed to appear at his hearing and not because he possessed child pornography. The record thus supports the military judge’s finding that Appellant’s confinement in Florida was “for” his failure to appear. Having determined that the military judge’s factual finding was not clearly erroneous, we find no error in his application of the law to that factual finding. The denial of the 291 days of civilian pretrial confinement credit aligns squarely with the plain language of DoDI 1325.07 encl. 2, para. 3.c.

Slip op. at 6 (citation omitted).

Case Links:
• ACCA opinion (78 M.J. 521)
• Blog post: CAAF grants review
• Appellant’s brief
• Appelllee’s (Gov’t Div.) brief
• Appellant’s reply brief
• Oral argument audio (wma)(mp3)
• CAAF opinion
• Blog post: Opinion analysis

This week at SCOTUS: A new cert. petition (available here) was filed in Cooper v. United States, No. 18-423, on May 13, 2019. In United States v. Cooper, 78 M.J. 283 (C.A.A.F. Feb. 12, 2019) (CAAFlog case page), a nearly-unanimous court found finds that the failure to request individual military defense counsel after a military judge discusses the right to make such a request with the accused is a knowing and intentional waiver of the right. The question presented in the petition is:

Whether the United States Court of Appeals for the Armed Forces exceeded its statutory authority under 10 U.S.C. § 867(c) when it took action with respect to a matter of fact.

The petition asserts:

The CAAF reversed the lower court because it found Cooper knowingly and intelligently waived his right to IMC. (Pet. App. 4a, 16a.) But what a defendant knew or understood at any given moment in time is a historical fact: making a state of mind determination calls for a “recital of external events and the credibility of their narrators.” Thompson v. Keohane, 516 U.S.99, 110 (1995) (internal quotations omitted).

The CAAF took action on a matter of fact—an authority specifically withheld from CAAF and provided to the NMCCA. Compare 10 U.S.C. § 866(c) with 10 U.S.C. §867(c). In exercising its authority under 10 U.S.C. § 866(c), the NMCCA found, as fact, that Cooper did not make a knowing and intelligent waiver of his right to IMC. Without so much as a declaration that this finding was clear error, the CAAF disagreed.

Pet at 12.

Additionally, the Solicitor General requested and has received an extension of time – until June 22, 2019 – to seek certiorari of CAAF’s decision in United States v. Briggs, 78 M.J. 289 (C.A.A.F. Feb. 22, 2019) (CAAFlog case page).

Finally, the cert. petition in Hale was distributed for conference on May 30, 2019.

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

• Hale v. United States, No. 18-1383 (pend. conf. on May 30)
• Cooper v. United States, No. 18-423 (pet. filed May 13; resp. due Jun. 13)
• United States v. Briggs, No. 18AA1168 (ext. of time to file pet. granted to Jun. 22)

This week at CAAF: CAAF will hear oral argument infour cases this week:

Tuesday, May 21, 2019, at 9:30 a.m.:

United States v. English, No. 19-0050/AR (CAAFlog case page)

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

Case Links:
• ACCA opinion
• Blog post: CAAF grants review
• Appellant’s brief
• Appellee’s (Gov’t Div.) brief
• Appellant’s reply brief

Followed by:

United States v. Navarette, No. 19-0066/AR (CAAFlog case page)

Issues:
I. Whether the Army Court erroneously denied appellant a post-trial R.C.M. 706 inquiry by requiring a greater showing than a non-frivolous, good faith basis articulated by United States v. Nix, 15 C.M.A. 578, 582, 36 C.M.R 76, 80 (1965).
II. Whether the Army Court erred when it held that submitting matters pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), was evidence of Appellant’s competence during appellate proceedings.

Case Links:
• ACCA opinion
• Blog post: CAAF grants review
• Appellant’s brief
• Appellee’s (Gov’t Div.) brief
• Appellant’s reply brief

Wednesday, May 22, 2019, at 9:30 a.m.:

United States v. Coleman, No. 19-0087/AR (CAAFlog case page)

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

Case Links:
• ACCA opinion
• Blog post: CAAF grants review
• Appellant’s brief
• Appellee’s (Gov’t Div.) brief
• Appellant’s reply brief

Followed by:

United States v. Hyppolite, II., Nos.19-0119/AF & 19-0197/AF (CAAFlog case page)

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

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

Case Links:
• AFCCA opinion
• Blog post: CAAF grants review
• Blog post: JAG cross-certifies
• Granted Issue: Appellant’s brief
• Granted Issue: Appellee’s (Gov’t Div.) brief (granted issue
• Certified Issue: Cross-Appellant’s (Gov’t Div.) brief
• Certified Issue: Cross-Appellee’s brief
• Certified Issue: Cross-Appellant’s (Gov’t Div.) reply brief

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 CCA’s website shows no scheduled oral arguments.

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

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

The Solicitor General has received an extension of time – until June 22, 2019 – to seek certiorari of CAAF’s decision. In a motion filed on May 10 and available here, the SG asserted:

The court [CAAF] stated that, under its decision in Mangahas, the UCMJ at the time of respondent’s offense in 2005 “established a five-year period of limitations,” id. at 5a, and the court concluded that the 2006 amendment to the UCMJ expressly eliminating any limitations period for rape charges did not apply, id. at 6a-10a. The court viewed its precedent to require treating the issue as a question of retroactivity; applied presumptions disfavoring the amendment’s application; and refused to find those presumptions overcome. See ibid. The court rejected the government’s contention that applying the 2006 amendment would not actually be a “‘retroactive’ 5 application of the law because the 2006 amendment did not attach any new legal obligations on” respondent, as well as its contention that Congress intended the 2006 amendment to apply to cases like respondent’s because it was simply codifying the CAAF’s then-extant decisions in Stebbins and Willenbring, id. at 8a-10a. The CAAF also rejected the government’s contention that respondent had relinquished the limitations defense by failing to raise it at trial. Id. at 10a-12a.

On Friday, administration officials posited the President may invoke the “tremendous power” of The Insurrection Act of 1807 (10 U.S.C. 252) in order to have federal troops enforce the Nation’s domestic immigration laws. Of course, this is not new – a small number of judge advocates have already been detailed to the Department of Justice since last summer, augmenting that agency as immigration prosecutors. That move was decried by some lawmakers as “unwise,” but the practice was not halted. But, the administration’s latest rhetorical volley has inspired fevered commentary across the political news spectrum. Into that fray comes a short thought-piece by Professor Steve Vladeck, of the University of Texas School of Law, which was just recently published in The Atlantic.

Professor Vladeck’s commentary posits:

[A]lthough Congress in the Posse Comitatus Act of 1878 generally prohibited use of the federal military for domestic law enforcement, the Insurrection Act was always understood as the principal exception to that general rule.

Read more »

A reader posed an interesting question in an email. Has this happened before?

Military prosecutors in the case of a Navy SEAL charged with killing an Islamic State prisoner in Iraq in 2017 installed tracking software in emails sent to defense lawyers and a reporter in an apparent attempt to discover who was leaking information to the media, according to lawyers who told The Associated Press that they received the corrupted messages.

The tracking software appears to be “an unusual logo of an American flag with a bald eagle perched on the scales of justice” included in an email from the lead prosecutor, Navy Commander Christopher Czaplak. Images in email are routinely used for tracking purposes, though the image files are typically transparent. Navy technology, it seems, is less subtle.

The accused is Navy Special Operations Chief Edward Gallagher. He was charged with premeditated murder (in connection with combat operations), aggravated assault, assault with a dangerous weapon, wrongful use and possession of controlled substances, and various violations of Article 134, though a military judge recently dismissed two of the charges. Gallagher was in pretrial confinement until President Trump intervened.

In January, Gallagher’s brother wrote this piece about the case, asserting in part:

The most infuriating part of this whole charade for our family has been the actions of the Navy, in particular NCIS and Navy prosecutors.

From the beginning, it’s been a coordinated smear campaign so they could make themselves look good by painting him as a monster. He takes prescribed pain medication for a damaged disc in his back, so they threw in a drug charge. He vented to friends about how this whole investigation is a farce; suddenly he’s obstructing justice. Prosecutors actually had the gall to use a text message argument between him and his wife about leaving a movie theatre early to insinuate spousal abuse. These are the steps the prosecution is taking to grasp at anything—literally anything—to smear the name of a good man.

This tactic, of painting Eddie as a villain, is a playbook used by prosecutors time and again to distance themselves from responsibility, muddy the waters, and convince you emotionally that he must be guilty.

This week at SCOTUS: The Solicitor General waived the right to respond to the cert. petition in Hale. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking one case:

• Hale v. United States, No. 18-1383 (pet. filed May 2; resp. waived May 9)

This week at CAAF: The next scheduled oral arguments at CAAF are on May 21, 2019.

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 CCA’s website shows no scheduled oral arguments.

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

On Wednesday CAAF granted review of ordered a response to a Grostefon issue in this Army case:

No. 19-0212/AR. U.S. v. Patrick B. Teer. CCA 20170601. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals and the pleadings filed in the case, it is ordered that Appellee will file a substantive answer to the following issue personally raised by Appellant:

WHETHER THE MILITARY JUDGE ERRED BY FAILING TO RECUSE HIMSELF BASED ON CIRCUMSTANCES THAT, IF KNOWN AT THE TIME OF APPELLANT’S COURT-MARTIAL, WOULD HAVE PROVIDED REASONS TO REASONABLY QUESTION HIS IMPARTIALITY.

Appellee’s answer will be filed within 15 days of the date of this order. A reply may be filed by Appellant within 5 days of Appellee’s answer.

There’s no opinion on the Army CCA’s website (meaning that the CCA summarily affirmed).

CAAF decided the Air Force case of United States v. Meakin, __ M.J. __, No. 18-0339/AF (CAAFlog case page) (link to slip op.), on May 7, 2019. Considering the appellant’s indecent online communications with others (one of whom was an undercover law enforcement agent), the court holds that the communications were obscene speech that is not protected by the First Amendment, that they are not protected by any other liberty interest, and that the unique nature of the offense of conduct unbecoming an officer and a gentleman defined by Article 133 provides a “more exacting standard of conduct [that] can be traced back at least to the days of knighthood where knights were held to a higher standard of conduct than their fellow countrymen in the Court of Chivalry.” Slip op. at 13 (marks and citation omitted). Accordingly, CAAF affirms the two charges and seventeen specifications of conduct unbecoming an officer and a gentleman, in violation of Article 133, and the sentence of confinement for 19 months and 15 days, total forfeitures, and a dismissal.

Judge Ryan writes for a unanimous court.

CAAF granted review of one issue:

Whether Appellant’s conviction for engaging in anonymous, private, and consensual communications with an unknown partner(s) in the privacy of his home was legally sufficient.

Lieutenant Colonel (O-5) Meakin was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of seventeen specifications of conduct unbecoming an officer and a gentleman, and sentenced to confinement for 20 months, total forfeitures, and a dismissal. The convening authority reduced the confinement by 15 days. Meakin’s convictions were based on his online chats with unidentified individuals about sexual fantasies involving children. Separate from his court-martial prosecution, Meakin also pleaded guilty in federal court to knowingly accessing child pornography.

Meakin argued at the court-martial that the charged violations of Article 133 must be dismissed because his communications were private and protected by the First Amendment, and Meakin renewed that argument on appeal before the Air Force CCA and at CAAF. It is thoroughly rejected.

Read more »

CAAF posted this announcement of the annual end-of-term reception to be held after the oral arguments on May 22, 2019:

THE PENTAGON CHAPTER, FEDERAL BAR ASSOCIATION, AND THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES INVITE YOU TO A RECEPTION TO CELEBRATE THE COURT’S 2018-2019 TERM

Please join the U.S. Court of Appeals for the Armed Forces and the Pentagon Chapter on Wednesday, May 22, 2019, beginning at 12:00 Noon for a reception to mark the end of the oral argument sessions for this term. Reception will be at the Court, 450 E Street, NW, Washington DC 20442. (Nearest Metro stop is Judiciary Square.) There will be pizza and drinks served at no cost to attendees.

There is no charge for this event, but we need an accurate count to ensure we have right amount of pizza and drinks. Please RSVP by Monday, May 20, 2019, to John Harms, johnkharms@gmail.com or 978-235-3633.

Multiple news agencies report that President Trump issued a pardon to former Army Lieutenant Michael Behenna. Fox News quotes White House Press Secretary Sarah Sanders:

White House Press Secretary Sarah Sanders cited “broad support” for Michael Behenna, of Edmond, Okla., “from the military, Oklahoma elected officials, and the public” — including 37 generals and admirals, along with a former Pentagon inspector general — as the reason for Trump’s clemency grant. Sanders also said Behenna had been a “model prisoner” while serving his sentence.

“In light of these facts, Mr. Behenna is entirely deserving of this Grant of Executive Clemency,” Sanders concluded.

In April 2008, Behenna was a Platoon Leader deployed to Bayji, Iraq (north of Baghdad). That month he shot and killed a detainee named Ali Mansur. The shooting occurred during an unauthorized interrogation in a desert culvert, during which Behenna stripped Mansur naked and threatened him with a pistol. Behenna was charged with murder, and at court-martial in March 2009 he claimed self-defense, asserting that Mansur had thrown a piece of concrete at him and tried to grab his pistol just before the shooting. Nevertheless, members convicted Behenna of unpremeditated murder and assault consummated by a battery, and sentenced him to a dismissal, total forfeitures, and confinement for 25 years., The convening authority later reduced the confinement 20 years, and the clemency and parole board reduced it to 15 years.

CAAF affirmed the convictions in United States v. Behenna, 71 M.J. 228 (C.A.A.F. 2012) (CAAFlog case page), holding that Behenna lost and did not regain the right to self-defense as a matter of law during the encounter, and that the prosecution’s late disclosure of a potentially-exculpatory opinion held by a prosecution expert was harmless. The Supreme Court denied certiorari in 2013. Behenna was subsequently granted parole and released from confinement in 2014, and became a ranch hand.

Behenna’s pardon isn’t President Trump’s first pardon for a former servicemember. The President gave Kristian Saucier a pardon for his conviction of violating 18 U.S.C. § 793(e) for illegally retaining photographs of classified areas of a nuclear submarine.

President Obama also granted clemency, including the commuting the death sentence of Private Loving and commuting the 35-year sentence of Private Manning. Loving murdered two taxicab drivers in Killeen, Texas (near Fort Hood), and attempted to murder a third, on December 12, 1988. Manning stole hundreds of thousands of classified documents and gave them to Wikileaks. Loving’s sentence was commuted to life without the possibility of parole and Manning’s was commuted to confinement until May 17, 2017 (effectively a 7-year term). Both actions were taken on January 17, 2017; three days before the end of Obama’s second term. Loving remains in post-trial confinement, while Manning is newly confined – and has been for the past two months – for contempt of court.

Commutations & Clemency was the #9 Military Justice Story of 2017, and we discussed Presidential pardons for convicted wartime murders last year, in this Scholarship Saturday post.

This week at SCOTUS: The Court denied cert. in King on April 29. Additionally, a new cert. petition (available here) was filed in Hale v. United States, No. 18-1383, on May 2, 2019. In United States v. Hale, 78 M.J. 268 (C.A.A.F. Feb. 6, 2019) (CAAFlog case page), a majority of CAAF found that evidence of conduct that was not subject to prosecution under the UCMJ was properly used to prove intent associated with conduct that was subject to prosecution. The petition presents the following questions:

1. Whether the Court of Appeals erred in relying on factual sufficiency of the evidence to resolve a question of plain error, where the alleged error related to a legal defect in jurisdiction.

2. Whether instructions focusing “on or about” the charged dates invited a general verdict based on conduct outside of the court-martial’s jurisdiction.

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

• King v. United States, No. 18-1254 (cert. denied on Apr. 29)
• Hale v. United States, No. 18-1383 (pet. filed May 2; resp. due Jun 3)

This week at CAAF: CAAF will not hold oral arguments on May 7-8, 2019. The next scheduled oral arguments at CAAF are on May 21, 2019.

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 CCA’s website shows no scheduled oral arguments.

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

On Wednesday CAAF granted review in this Army case:

No. 19-0178/AR. U.S. v. Robert J. Rice. CCA 20160695. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

WHETHER THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT REQUIRES DISMISSAL OF APPELLANT’S CONVICTIONS.

Briefs will be filed under C.A.A.F. R. 25.

The Army CCA issued a published opinion available here and at 78 M.J. 649.

Colonel (O-6) Rice wrongfully possessed and distributed child pornography. The evidence of his crimes was strong; his wife discovered the materials and reported them to the police. But, “for unknown reasons, the government elected to divide various child pornography charges between military prosecutors and prosecutors with the U.S. Attorney’s Office for the Middle District of Pennsylvania. Thus ensued the debacle which we are now compelled to review.” 78 M.J. at 651. And debacle it was, with the CCA remarking that “what happened in this case should not happen again.” 78 M.J. at 652.

Rice was convicted in District Court, by a jury, of various offenses including wrongful possession of child pornography. Then – prior to being sentenced in the District Court – Rice conditionally pleaded guilty (preserving a double jeopardy objection) to wrongful possession of child pornography at a general court-martial. Returning to District Court for sentencing, Rice sought (and won) dismissal of his civil conviction for wrongful possession based on double jeopardy. Then, during appellate review of his court-martial, he sought dismissal of the court-martial conviction too (for the same reason).

The Army court agreed that Rice’s convictions violate the prohibition against double jeopardy, holding that “the government placed [Rice] in jeopardy twice” because his “conviction at the District Court of possessing child pornography necessarily proved every element of being a crime not capital under clause three of Article 134, UCMJ,” and because “an accused may be convicted only once for possessing child pornography under clauses one, two, or three for the same conduct.” 78 M.J. at 654. But that did not win Rice reversal of his court-martial conviction because:

Once appellant secured dismissal of the possession count on grounds unrelated to his factual guilt or innocence, the United States was free to pursue other charges based on the same course of conduct.

Thus, while we agree appellant was subjected to jeopardy twice, we conclude he has already received his remedy and is not entitled to what the Supreme Court has described as an unjustified windfall.

78 M.J. at 656 (marks and citations omitted).

Back in January, in United States v. Peebles, 78 M.J. 658 (A. Ct. Crim. App. Jan 10, 2019) (discussed here), the Army CCA held that the minimum mens rea for sexual assault by causing bodily harm (where the sexual act is the bodily harm) is recklessness.

The decision came nearly four months after CAAF granted review of that very issue – and three months before CAAF would reach the opposite decision – in United States v. McDonald, __ M.J. __, (C.A.A.F. Apr. 17, 2019) (CAAFlog case page). The decision also directly contradicted (and specifically rejected) the contrary decision of the Navy-Marine Corps CCA in United States v. Patrick, 78 M.J. 687 (N.M. Ct. Crim. App. Dec. 11, 2018) (link to slip op.).

Now, with the ink barely dry on CAAF’s decision in McDonald (and despite the possibilities of reconsideration by CAAF and review by SCOTUS) the Army CCA hastily retreats with this per curiam decision on reconsideration in Peebles, issued on April 24, 2019:

In light of our superior court’s decision in United States v. McDonald, __M.J.__, 2019 CAAF LEXIS 271 (C.A.A.F. 17 Apr. 2019), this court sua sponte reconsiders its 10 January 2019 decision in this case

For the reasoning set forth by our superior court in McDonald, the 10 January 2019 published opinion of this court, United States v. Peebles, 78 M.J. 658 (Army Ct. Crim. App. 2019), is hereby VACATED.

Pursuant to our reconsideration of the entire record, we hold the findings of guilty and the sentence as approved by the convening authority correct in law and fact. Accordingly, those findings of guilty and the sentence are AFFIRMED.

On Monday CAAF specified review of the following issue in an Army case:

No. 19-0143/AR. U.S. v. Corey N. Wall. CCA 20160235. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following specified issue:

WHETHER, AFTER SETTING ASIDE THE SENTENCE AND ORDERING A REMAND, A SERVICE COURT OF CRIMINAL APPEALS IS AUTHORIZED TO REASSESS THE SENTENCE AND LIMIT THE LAWFUL SENTENCE THE CONVENING AUTHORITY MAY APPROVE.

Briefs will be filed under C.A.A.F. R. 25.

The Army CCA’s opinion is available here.

Specialist Wall was convicted of the rape of one woman and the sexual assault of another (both fellow enlisted soldiers), by a general court-martial composed of a military judge alone, and sentenced to confinement for 15 years, reduction to E-1, total forfeitures, and a dishonorable discharge. But during the trial the military judge allowed the prosecution to use the charged offenses for propensity purposes, a constitutional error identified by CAAF in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page). Considering that error on appeal, the CCA found that it was prejudicial for only the sexual assault conviction, and the court set aside that finding and the sentence, authorizing a rehearing. But the CCA also expressed, in a footnote, its

satisf[action] that the sentence adjudged, absent Specification 1 of The Charge, would have been at least a dishonorable discharge and confinement of ten years. See United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986) and United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013). The reassessment being both appropriate and purging the record as it stands of error does not otherwise limit the sentence that may be adjudged at a rehearing. See UCMJ, art. 63.

Slip op. at 8 n.4.

Under Article 66(c) (pre-2019) or Article 66(d)(1) (2019) a CCA “may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as [it] finds correct in law and fact and determines, on the basis of the entire record, should be approved.” The provision has been the subject of deep analysis in recent cases like United States v. Chin, 75 M.J. 220 (C.A.A.F. Apr. 29, 2016) (CAAFlog case page), and United States v. Nerad, 69 M.J. 138, 144-146 (C.A.A.F. 2010), with CAAF generally upholding its precedent that a CCA has both a duty and the power to conduct a plenary review of a court-martial and may “in the interest of justice, determine that a certain finding or sentence should not be approved.” United States v. Claxton, 32 M.J. 159, 162 (C.A.A.F. 1991). The power is not unlimited, however, and the CCAs sometimes press the limits. One recent example is found in the issue certified by the Judge Advocate General of the Air Force in United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012) (CAAFlog case page):

Whether the Air Force Court of Criminal Appeals erred in finding appellee’s sentence inappropriately severe under the unique circumstances of this case and erred in an attempt at exercising appellate clemency by remanding the case to the convening authority with instructions that the convening authority may approve an adjudged sentence no greater than a suspended bad conduct discharge and a reduction to the grade of E-1.

A majority of CAAF did not address that issue when it decided Humphries (though two dissenting judges would have decided it against the CCA). But with the specified issue in Wall, CAAF has presented itself with substantially the same question.

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

• King v. United States, No. 18-1254 (pend. conf. on Apr. 26)

This week at CAAF: The next scheduled oral argument date at CAAF is May 7, 2019, however CAAF’s website should no scheduled oral arguments.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Tuesday April 30, 2019, at 10 a.m.:

United States v. Clark, No. 20170023

Issues:
I. Whether the miltary judge erred by finding statements from two CID agents made during appellant’s videotaped interrogation were not “statements” for R.C.M. 914 purposes?

II. If the military judge erred, do the good faith loss or harmless error doctrines otherwise apply when the military judge made a previous ruling that “no evidence of bad faith on the part of any Government actor” existed in the government’s loss of one of the five discs from appellant’s videotaped interrogation?

III. If error exists and the good faith loss or harmless error doctrines do not apply: (1) what evidence and testimony should have been excluded; and (2) what is the proper test, if any, for this court to apply prejudice?

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 website shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on Wedesnday, May 1, 2019, at 1 p.m.:

United States v. Sager, No. 201400356

Case Summary: A panel of members with enlisted representation sitting as a general court-martial convicted Appellant, contrary to his pleas, of one specification of abusive sexual contactin violation of Article120, UCMJ, 10 U.S.C. §920(2012). The Members sentenced Appellant to twenty-four months of confinement and a bad-conduct discharge. The Convening Authority approved the sentence as adjudged and, except for the punitive discharge, ordered it executed.

Issue: This case is before this Court for further review after our initial decision on direct appeal was vacated by the United States Court of Appeals for the Armed Forces and after this Court granted the government’s request for reconsideration of its opinion on remand. May the Court now consider the government’s argument, raised for the first time, that the members announced a general verdict?

See United States v. Sager, 76 M.J. 158 (C.A.A.F. Mar. 21, 2017) (CAAFlog case page).