CAAF will hear oral argument in the Army case of United States v. Phillips, No. 14-0199/AR (CAAFlog case page), on Monday, October 20, 2014, at 9:30 a.m. The case will return the ultimate offense doctrine to CAAF for the first time in almost 20 years, with the following granted issue:

Whether the military judge abused his discretion by accepting appellant’s plea of guilty to disobeying the order of his commander in violation of Article 90, UCMJ, when the ultimate offense at issue was the minor offense of breaking restriction described under Article 134, UCMJ, and the record does not reflect appellant’s understanding that the order imposing restriction was issued with the full authority of his commander’s office to lift the duty in the parlance of this court’s earlier opinion, “above the common ruck.”

Appellant was pending court-martial in 2010 when he absconded. He was apprehended in 2012 and given a written counseling by his commanding officer, ordering him to remain on base at Fort Carson to ensure his presence for legal proceedings. He violated that order. Eventually, Appellant pleaded guilty to multiple offenses, including one specification of willfully disobeying a superior commissioned officer in violation of Article 90, UCMJ.

But a three-judge panel of the Army CCA rejected the plea to willful disobedience, applying the ultimate offense doctrine to conclude that “neither the stipulation of fact nor the providence inquiry developed or established sufficient facts to support a plea of guilty to a violation of Article 90, UCMJ, but rather merely establish the offense of breaking restriction in violation of Article 134, UCMJ.” United States v. Phillips, No. 20120585, slip op. at 2, 2013 WL 5402231 (A. Ct. Crim. App. Sep. 23, 2013). That decision caught my attention, and a little research revealed that it wasn’t the first time in recent history that the Army CCA had reversed such a plea. Rather, as I wrote in a year ago in a post titled Is the “ultimate offense doctrine” making a comeback?, it was the seventh such case over the prior 15 months.

But the Government sought en banc reconsideration and the full CCA reversed the panel in a published opinion that explained in part that “under the facts of this case, either Article 90, UCMJ, or Article 134, UCMJ (breaking restriction), were viable offenses properly chargeable by the government…” United States v. Phillips, 73 M.J. 572, __, slip op. at 3
(A. Ct. Crim. App. Jan. 31, 2014) (en banc op. on recon.). This prompted me to write a post titled “It was fun while it lasted… the Army CCA puts an end to the comeback of the ultimate offense doctrine.”

Phillips got me excited because the ultimate offense doctrine really is a military justice wonk’s dream. It’s a part codified, part judicially created, practically equitable doctrine that embodies the simple rule that “an order to obey the law can have no validity beyond the limit of the ultimate offense committed.” United States v. Bratcher, 39 C.M.R. 125, 128 (C.M.A. 1969). It’s also the Loch Ness Monster of military appeals; everyone knows it’s there, but its rare appearance is the stuff of legend. To my knowledge, CAAF hasn’t considered an application of the doctrine in nearly 20 years. See United States v. Morrison, 41 M.J. 482, 484 (C.A.A.F. 1995) (“Under the facts of this case, the punishment is not limited by the ‘ultimate offense’ doctrine.”).

And then CAAF granted review in Phillips and in two trailer cases: United States v. Nemeth, No. 14-0491/AR, grant discussed here), and United States v. Amaya, No. 14-0558/AR (grant discussed here). That got me really excited!

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This week at SCOTUS: A pro se cert petition was filed in Wickware v. United States, No. 14-6677. CAAF addressed Wickware in a summary disposition last May, dismissing offenses that were charged in the alternative. I discussed Wickware in my analysis of the Navy-Marine Corps CCA’s decision in United States v. Hart, No. 201300295 (N-M.Ct.Crim.App. Aug. 19, 2014).

Additionally, I’m awaiting the results of last Friday’s conference where the Court considered the cert petition in McMurrin. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking two cases:

This week at CAAF: CAAF will hear oral argument in one case this week, on Wednesday, October 15, 2014, at Marine Corps Base Camp Lejeune, North Carolina:

United States v. Gilbreath, No. 14-0322/MC (CAAFlog case page)

Issues:
I. Whether individual ready reservists, subject to punishment under the UCMJ, are entitled to the protections of Article 31(b) when questioned by senior service members about suspected misconduct committed on active duty.
II. Whether the military judge erred in concluding that Appellant’s statements were admissible under Article 31(b), UCMJ, and Military Rule of Evidence 305.

Case Links:
NMCCA opinion
Blog post: NMCCA finds that Article 31(b) does not apply to inactive reservists
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

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 should 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.

It seems the Marine Corps may have its own version of a “birther” issue brewing. There are allegations the Commandant of the Marine Corps, Gen. James F. Amos, may not have actually attended The Basic School, which is required initial officer training for every Marine officer regardless of MOS. Congressman Walter Jones is asking SECDEF to investigate. From the Marine Corps Times, quoting Rep. Jones:

“As discussed, [Office of Legislative Affairs] informed me that Gen. Amos did not attend the Basic School in that he was an inter-service transfer from the Navy,” the email says. In follow-up conversations, Marine officials corrected that to say Amos completed TBS through a correspondence course in February 1977, but provided the congressman no documentation. Amos left the service one year later and served as a commercial airline pilot for Braniff Airlines until 1982.

The story was broken by attorney Lee Thweatt, known to many readers of this blog, who assisted LtCol James Weirick. If these allegations are true, it would be contrary to information that appeared on the Commandant’s official resume, presented to Congress during the confirmation process. That resume stated he completed The Basic School in 1972. While Marine Corps’ spokesman, Col Dave Lapan, insists that there is evidence the Commandant did complete TBS, Mr. Thweatt says his investigation shows otherwise:

Thweatt said Marine Corps records do not contain reference to any Marine officer named James F. Amos until 1973, “and even then, there is no reference to the January 15, 1972, date of commissioning General Amos listed on his résumé.”

and

Thweatt found and provided photographic evidence that Amos was stationed at Marine Corps Air Station Kaneohe Bay, Hawaii, from 1971 to 1972. In fact, Amos is shown to have ejected from an F-4 Phantom on or about July 12, 1972.

Apparently, it was not uncommon during the time period that the Commandant transferred from the Navy to waive the requirement for aviators to attend TBS, due to operational requirements in Vietnam. It will be interesting to see how this all plays out. More interestingly, if it turns out that dates and schools were falsified on the Commandant’s resume to Congress for confirmation, would that constitute a violation of 18 U.S.C. sec. 1001, a felony offense for making a false statement?

In a published opinion in United States v. Heyward, No. 20120469, __ M.J. __ (A. Ct. Crim. App. Sep. 24, 2014) (link to slip op.), a three-judge panel of the Army CCA applies Army Regulation 27-10 to conclude that allied papers separate from DA Form 2627 (“Record of Proceedings Under Article 15, UCMJ”) and DA Form 2627-2 (“Record of Supplementary Action under Article 15, UCMJ”) must have an independent basis for admission during the sentencing phase of a court-martial.

Writing for the panel, Senior Judge Lind explains that Army Regulation 27-10:

authorize[s] admission of records of Article 15 (as recorded on DA Forms 2627 or 2627-2) that are “not otherwise inadmissible” as personnel records in accordance with R.C.M. 1001(b)(2) and require that the Article 15 (as recorded on DA Forms 2627 or 2627-2) and the allied papers be considered to be filed separately when determining the admissibility of the Article 15 forms.

Army Regulation 27-10 does not contain a rule of completeness authorizing admission of allied papers along with the record of punishment under Article 15. Allied papers, which may contain all sorts of inadmissible hearsay and extraneous material, may themselves be admissible in whole or in part separately from the Article 15 as recorded on DA Forms 2627 or 2627-2. However, the allied papers must have an independent basis for admission and pass the Mil. R. Evid. 403 balancing test.

Slip op. at 5-6. The allied documents at issue were the contents of the “Article 15 package” that included:

a two-page military police desk blotter entry and seven pages of sworn statements regarding the assault consummated by a battery against appellant’s spouse, as well as a sixty-page Commander’s Inquiry regarding appellant’s alteration of his [noncommissioned officer evaluation report], to include all of the enclosures to that administrative investigation.

Slip op. at 2. The military judge admitted the records over Defense objection. The CCA finds this to be harmless error.

The investigation into the disappearance of PFC Bowe Berdahl and his subsequent capture by the Taliban is completed reports the San Antonio News -Express, here. Prior coverage of the prisoner wlswap for Bergdahl and questions about whether he went UA are here and here.

On Tuesday CAAF granted review of a rather strongly-worded issue in the Navy case of United States v. Castillo, No. 14-0724/NA:

No. 14-0724/NA. U.S. v. Nancy L. CASTILLO. CCA 201300280. Review granted on the following issue:

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

Briefs will be filed under Rule 25

The case involves a conviction for violating a general order in that the appellant failed to report her arrest on drunk driving charges as required by ¶ 510.6 of OPNAVINST 3120.32c (as amended by NAVADMIN 373/11 (Dec. 8, 2011)), superseded by ¶ 5.1.6 of OPNAVINST 3120.32D (Jul. 16, 2012). The appellant’s DUI arrest was discovered when one of her supervisors saw her name on a courthouse docket.

The NMCCA’s decision affirming the conviction is available here. Sam analyzed that decision in a July post titled: The Return of Self-Reporting? NMCCA Reverses Course on Serianne.

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

United States v. Piren, No. 14-0453/AR (CAAFlog case page): Oral argument audio.

United States v. Piolunek, No.s 14-5006/AF & 14-0283/AF (CAAFlog case page): Oral argument audio.

CAAF will hear oral argument in the Marine Corps case of United States v. Gilbreath, No. 14-0322/MC (CAAFlog case page), on Wednesday, October 15, 2014. The argument will occur at Marine Corps Base Camp Lejeune, North Carolina, as part of CAAF’s Project Outreach. The case questions the Navy-Marine Corps CCA’s conclusion that Article 31(b) does not apply to inactive reservists, with two granted issues:

I. Whether individual ready reservists, subject to punishment under the UCMJ, are entitled to the protections of Article 31(b) when questioned by senior service members about suspected misconduct committed on active duty.

II. Whether the military judge erred in concluding that Appellant’s statements were admissible under Article 31(b), UCMJ, and Military Rule of Evidence 305.

Appellant, a Marine Corporal, completed his four-year active duty obligation in January 2011, was honorably discharged, and transferred to the individual ready reserve (IRR) for the remainder of his eight-year enlistment contract. Prior to his discharge he served as an armory custodian. After his discharge an inventory of the armory revealed that a pistol was missing.

Sergeant Muratori – who was Appellant’s pre-discharge supervisor – conducted an investigation into the missing pistol, interviewing witnesses and reviewing paperwork. App. Br. at 3. Based on the investigation and his knowledge of Appellant, the Sergeant suspected that Appellant stole the pistol. Id. So, the Sergeant:

ordered two of his Marines to call Cpl Gilbreath. He instructed them to contact him, but not to accuse him of anything or “put him on the defensive” so that Sgt Muratori he could “get as much information as he could” out of Cpl Gilbreath. After receiving multiple voice-mail messages, Cpl Gilbreath returned a call to one of Sgt Muratori’s Marines. During the phone call, Sgt Muratori took the phone and began questioning Cpl Gilbreath.

App. Br. at 3-4. Appellant made a number of incriminating admissions and eventually admitted that he had the pistol, and it was subsequently recovered. But Appellant was never advised of his Article 31(b) right to remain silent and consult with counsel.

Appellant was then recalled to active duty and charged with larceny in violation of Article 121. He moved to suppress his statements based on the fact that he was not advised of his Article 31(b) rights, but the military judge denied the motion after concluding that Appellant was not entitled to the protections of Article 31(b) because he was a member of the IRR who was not on active duty and therefore not subject to the UCMJ at the time he made the statements, even though those statements were later used against Appellant at his trial. Appellant was then convicted of the larceny, contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, and he was sentenced to reduction to E-1, total forfeitures, and a bad-conduct discharge.

A three-judge panel of the NMCCA unanimously affirmed. United States v. Gilbreath, No. 201200427 (N-M.Ct.Crim.App. Nov. 12, 2013) (link to unpub. op.). The court disagreed somewhat on the legal analysis, with one judge applying the two-part Duga test (that was later abrogated by CAAF in United States v. Jones, 73 M.J. 357 (C.A.A.F. Jul. 21, 2104) (CAAFlog case page)) to find that “[A]ppellant did not perceive Sgt NM’s inquiry as involving more than a casual conversation.” Gilbreath, slip op. at 9 (Fischer, J. concurring). But the other two judges concluded that the legislative history of Article 31(b) and case law “clearly demonstrate that the appellant was well outside the class of persons whom Congress sought to protect with the creation of Article 31(b).” Id., slip op. at 6. CAAF then granted review in July (shortly before it issued its opinion in Jones).

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

United States v. McFadden, No. 12-0501/AF (CAAFlog case page): Oral argument audio.

United States v. Katso, No. 14-5008/AF (CAAFlog case page): Oral argument audio.

Back in June, in this post, Mike noted a media report about the dismissal of sexual assault charges in an Air Force general court-martial. At the time it appeared that the charges were dismissed due to prosecutorial incompetence, but precise details were slim. Then, in this September TWIMJ post, I noted a scheduled oral argument at the AFCCA for an an Article 62 appeal in the case.

Update (Oct. 8): A commenter noted that today the CCA posted the audio of the oral argument. It’s available here.

Last week the CCA issued its ruling in a published opinion. United States v. Bowser, __ M.J. __, Misc. Dkt. No. 2014-08 (A.F. Ct. Crim. App. Oct 3, 2014) (link to slip op.). The court denies the Government’s appeal and affirms the judge’s ruling that dismissed – with prejudice – the charges of rape, forcible sodomy, and assault.

The CCA’s opinion provides lots of facts, revealing that the military judge found that the trial counsel committed prosecutorial misconduct by refusing to obey an order for an in camera review of the prosecution team’s witness interview notes. Moreover, the military judge concluded that dismissal was more appropriate than delay because the Government needed delay to continue its trial preparation, and the judge found that delay would “reward the party with unclean hands with that which it desperately needs.” Slip op. at 7.

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The instructions given to the panel members are one of the most important, but frequently neglected (at least from my own observation), parts of a court-martial. A recent case from the AFCCA, challenging a conviction for carrying a concealed weapon, illustrates the importance of thinking about instructions early and planning objections to them. In United States v. Hooper, No. 38307 (Af. Ct. Crim. App. 24 Sept. 2014), the appellant was convicted of, among other things, violation of Article 134, UCMJ for carrying a concealed weapon in his POV from his off-base residence to base housing on board Luke Air Force Base, Arizona.

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The fallout from a controversial lecture to junior attorneys by Marine Corps Lieutenant Colonel Robert G. Palmer – then a sitting military judge – in the summer of 2012 was part of our #8 story in the Top Ten Military Justice Stories of 2012, and it led to appellate litigation in a parade of cases. Those cases include United States v. Bremer, 72 M.J. 624 (N-M. Ct. Crim. App. 2013 (discussed here), in which the CCA reversed the sentence, United States v. Kish, No. 201100404 (N-M. Ct. Crim. App. Jun. 17, 2014) (unpub. op.) (Kish III) (discussed here), in which the CCA reversed the findings, and United States v. Bailey, No. 201200370 (N-M. Ct. Crim. App. Sep. 16, 2014) (unpub. op.) (discussed here), in which the CCA granted no relief.

The NMCCA recently addressed another such case, United States v. Sanders, No. 201200202 (N-M. Ct. Crim. App. Sep. 30, 2014) (link to unpub. op.). The appellant was convicted by a special court-martial composed of the military judge alone, pursuant to his pleas of guilty, of knowingly using an interactive computer service for carriage in interstate commerce of obscene, lewd, lascivious, and filthy matter, in violation of 18 U.S.C. § 1462, incorporated under Clause 3 of Article 134. He was sentenced to the jurisdictional maximum punishments of confinement for twelve months, reduction E-1, and a bad-conduct discharge.

The lecture that sparked the controversy occurred three months after the guilty plea in Sanders, but the NMCCA finds the appearance of bias in “the military judge’s imposition of the most severe sentence possible in this case,” slip op. at 7. The court reverses the sentence and remands for a sentence rehearing.

The court identifies four reasons for its action:

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The Military to Civilian Success for Legal Professionals Seminar (aka Jobs for JAGs) will be held Oct. 30, 2014 from 7:30 a.m. – 5:30 p.m at the Crystal City Gateway Marriott, 1700 Jefferson Davis Hwy, Arlington, VA.  The event is co-sponsored by the Military Officers Association of America and the Judge Advocates Association.  Registration link here.

CAAF has declined to intervene in the ongoing Army court-martial of Private Hernandez, in which the military judge (Colonel Gross), in a judge-alone contested general court-martial, acquitted the Private of sexual assault of a child and sexual abuse of a child in violation of Article 120(b) (2012) but refused to enter findings to a charge of sodomy with a child in violation of Article 125 due to concern over the application of the defense of mistake of fact as to age. I discussed the Army CCA’s two decisions in the case in this post (where the court ultimately granted the Government a writ of prohibition) and Private Hernandez’s writ-appeal to CAAF in this post. But CAAF’s daily journal for last Wednesday has this entry:

Misc. No. 15-8001/AR.  Randy HERNANDEZ, Appellant v. Colonel Gregory Gross, Military Judge, United States Army, and United States, Appellees.  CCA 20140293.

On consideration of the writ-appeal petition and motion for stay, it is ordered that said petition is denied without prejudice to Appellant’s right to raise the issues asserted during the normal course of appellate review, and that said motion is denied as moot.

Additionally, CAAF has granted review in another case involving the corroboration rule (last month the court granted review of a corroboration issue in United States v. Adams, 14-0495/AR (discussed here)):

No. 14-0658/AR. U.S. v. Corey J. BENNETT. CCA 20111107. Review granted on the following issue:

Whether the military judge erred by allowing an expert to repeat testimonial hearsay, denying Appellant’s right to confrontation, and if he so erred, whether Appellant’s confession to marijuana use was adequately corroborated.

Briefs will be filed under Rule 25.

The Army CCA’s opinion in Bennett is available here. A three judge panel of the CCA considered Appellant’s convictions by a special court-martial composed of officer members, contrary to his pleas of not guilty, of two specifications of unauthorized absence and one specification of wrongful use of marijuana in violation of Articles 86 and 112a, for which he was sentenced to confinement for three months, reduction to E-1, forfeiture of $978.00 pay per month for three months, and a bad-conduct discharge. The panel reversed one of the unauthorized absence convictions “because the government failed to prove that he was absent from the unit alleged.” United States v. Bennett, No. 20111107, slip op. at 2 (A. Ct. Crim. App. Apr. 28, 2014). But then the panel divided sharply over Confrontation Clause issues in the Government’s evidence supporting the drug conviction.

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Significant Military Justice Event: The Judicial Proceedings Panel will conduct a public meeting on Friday, October 10, 2014, from 8:45 a.m. to 5:00 p.m. at the Holiday Inn Arlington at Ballston, Glebe and Fairfax Ballrooms, 4610 N. Fairfax Drive, Arlington, Virginia 22203. Additional details are available in this Federal Register notice.

This week at SCOTUS: Six of the military justice cases pending at the Supreme Court were considered in last week’s conference. As discussed in this post, the Court’s order list mentions none of them, meaning that certiorari was denied. I’m not aware of any other military justice developments at the Supreme Court, where I’m now tracking just one case:

This week at CAAF: CAAF will hear oral argument in four cases this week. On Tuesday, October 7, 2014, beginning at 9:30 a.m. the court will hear two cases:

United States v. McFadden, No. 12-0501/AF (CAAFlog case page)

Issues:
I. Whether the Air Force Court of Criminal Appeals (AFCCA) erred when it held that the military judge did not abuse his discretion by failing to excuse for cause a court member who accused the appellant of lying by omission by exercising her Article 31(b), UCMJ right to remain silent.
II. Whether the military judge abused his discretion by denying defense counsel’s request for a mistrial after a court member accused Appellant of lying by omission by exercising her Article 31(b), UCMJ, right to remain silent.

Case Links:
AFCCA opinion
Blog post: Remaining silent isn’t a “lie of omission,” but it’s ok if a member thinks it is
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

United States v. Katso, No. 14-5008/AF (CAAFlog case page)

Issue:
Whether the Air Force Court of Criminal Appeals erred when it found Appellee’s Sixth Amendment right to confrontation was violated when the military judge permitted, over Defense objection, the testimony of the Government’s DNA expert, and that the error was not harmless

Case Links:
AFCCA opinion
Blog post: A significant confrontation clause decision from the AFCCA
Blog post: CAAF grants USACIL additional time to file an amicus brief in Katso
Appellant’s (Government) brief
Appellee’s brief
Amicus brief (Defense Forensic Science Center / U.S. Army Criminal Investigation)
Blog post: Argument preview

On Wednesday, October 8, 2014, beginning at 9:30 a.m. the court will hear two cases:

United States v. Piren, No. 14-0453/AR (CAAFlog case page)

Issues:
I. Whether the military judge abused her discretion by overruling the defense counsel’s scope objection during the Government’s cross-examination of Appellant.
II. Whether the military judge erred by denying the motion to suppress results of the DNA analysis.

Case Links:
ACCA opinion (summary affirmaton)
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

 United States v. Piolunek, No.s 14-5006/AF & 14-0283/AF (CAAFlog case page)

Issues:
I. Whether appellant’s convictions for possession and receipt of child pornography on divers occasions must be set aside because several images offered in support of the specifications are not child pornography and are constitutionally protected, a general verdict was entered, and it is impossible to determine whether said images contributed to the verdict.
II. Whether the Air Force Court of Criminal Appeals erred in finding that images 8308, 8313, and 0870 did not constitute visual depictions of a minor engaged in sexually explicit conduct as a matter of law.

Case Links:
AFCCA opinion
Blog post: AFCCA Invites CAAF to Clarify its Position in Barberi
Blog post: CAAF grants review in Piolunek
Blog post: “Great idea, Judge Erdmann!” says the Air Force JAG
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Appellee’s (Government) reply brief
Blog post: Argument preview

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Tuesday, October 7, 2014, at 10 a.m.:

United States v. Robinson, No. 20120993

Issue: Whether the military judge abused his discretion in denying defense’s post-trial motion for a mistrial, which violated Appellant’s right to have his case decided by a panel of fair and impartial members because a panel member failed to disclose that his daughter had been sexually assaulted.

This week at the AFCCA: The Air Force CCA’s website should 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.