CAAF will hear oral argument in the Marine Corps case of United States v. Rosario, No. 16-0424/MC (CAAFlog case page), on Tuesday, December 6, 2016, at 9:30 a.m. The court granted review of one issue that – similar to an issue in United States v. Swift, No. 16-0407/AR (CAAFlog case page) – questions whether the CCA’s review of the conviction was predicated on conduct that was not the basis for the conviction:

Whether the lower court erred in conducting its Article 66(C), UCMJ, review by finding as fact allegations that supported charges of which Sgt Rosario was acquitted to affirm the findings and sentence.

Sergeant (E-5) Rosario was convicted contrary to his plea of not guilty, by a special court-martial composed of members with enlisted representation, of one specification of sexual harassment in violation of Article 92. Specifically, the charge alleged that he:

did, on divers occasions, at or near New River, North Carolina, between on or about 13 September 2013 and on or about 21 February 2014, violate a lawful general order, to wit: Marine Corps Order 1000.9a, dated 30 May 2006, by wrongfully sexually harassing Lance Corporal BA, U.S. Marine Corps.

Gov’t Br. at 2 (quoting record) (marks omitted). Rosario was also charged with three unlawful touchings of Lance Corporal (E-3) BA during this time period – “touching her cheek with his mouth” and “touching her ear with his tongue” and “touching her hand with his hand” – in violation of Articles 120 and 128, however he was acquitted of all of those offenses. The members sentenced Rosario to reduction to E-1 and a bad-conduct discharge.

The basis for the sexual harassment charge was, at least, a series of inappropriate comments that Rosario made to LCpl BA (his subordinate) during the charged time period. On appeal Rosario “argued that the evidence was factually and legally insufficient to sustain his sexual harassment conviction.” Gov’t Br. at 9. The NMCCA rejected this challenge, concluding that the physical touchings of which Rosario was acquitted were evidence “offered in support of two separately charged offenses” – the sexual harassment offense and the 120/128 offense –  and that under such circumstances “an acquittal on one may not be pleaded as res judicata of the other.” United States v. Rosario, No. 201500251, slip op. at 4 (N-M. Ct. Crim. App. Jan. 28, 2016) (link to slip op.) (marks and citation omitted).

CAAF then granted review to determine whether the CCA’s review was predicated on the actual factual basis for the conviction.

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The long awaited report of the conference committee considering the National Defense Authorization Act for Fiscal Year 2017 was just released. It is available here: https://rules.house.gov/conference-report/s-2943

The conference version of the NDAA includes a great many significant changes to the Uniform Code of Military Justice. In particular, the legislation adopts many – but not all – of the changes proposed by the Military Justice Review Group.

Some significant notes:

• The conference version does not eliminate members sentencing in non-capital cases. Instead, § 5182 amends Article 25 to give the accused the option to elect sentencing by members (when trial was before members) after the findings are announced.

• § 5164 of the conference version amends Article 20 to state that “a summary court-martial is a non-criminal forum. A finding of guilty at a summary court-martial does not constitute a criminal conviction.”

• § 5205 modifies a staff judge advocate’s pretrial advice to require only a probable cause determination rather than the current conclusion that “the specification is warranted by the evidence.”

• § 5330 modifies Article 66 to require automatic review by the courts of criminal appeals only in cases that include death, dismissal, a dishonorable or bad-conduct discharge, or confinement for two years or more. In cases involving confinement for more than six months or more (but less than two years) an accused may petition for review.

Edited to add: • § 5330 also preserves the requirement that a CCA “may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as the Court finds correct in law and fact and determines, on the basis of the entire record, should be approved.”

• § 5301 modifies Article 56 to allow the prosecution to appeal a sentence on the grounds that “(A) the sentence violates the law; or (B) the sentence is plainly unreasonable.”

• § 5301 modifies Article 56 requires a sentence adjudged by a military judge alone to be segmented (confinement and fine only) by offense. Where sentencing is by members, the court-martial will continue to adjudge a single sentence for all offenses.

In United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page), a unanimous CAAF held that charged offenses may not be used under Mil. R. Evid. 413 to prove an accused’s propensity to commit other charged offenses, and also that the standard instruction given to members regarding how to handle such propensity undermines the presumption of innocence.

In United States v. Hukill, No. 20140939 (A. Ct. Crim. App. Aug. 16, 2016) (discussed here), the Army CCA concluded that CAAF’s decision in Hills does not apply in judge-alone trials.

Last week CAAF granted review of the Army CCA’s decision in Hukill:

No. 17-0003/AR. U.S. v. Christopher B. Hukill. CCA 20140939. 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 hereby granted on the following issues:

I. WHETHER, IN A COURT-MARTIAL TRIED BY MILITARY JUDGE ALONE, THE MILITARY JUDGE ABUSED HIS DISCRETION BY GRANTING THE GOVERNMENT’S MOTION TO USE THE CHARGED SEXUAL MISCONDUCT FOR MILITARY RULE OF EVIDENCE 413 PURPOSES TO PROVE PROPENSITY TO COMMIT THE CHARGED SEXUAL MISCONDUCT.

II. WHETHER JUDGE PAULETTE V. BURTON AND JUDGE LARSS G. CELTNIEKS, JUDGES ON THE COURT OF MILITARY COMMISSION REVIEW WERE STATUTORILY AUTHORIZED TO SIT ON THE ARMY COURT OF CRIMINAL APPEALS, AND EVEN IF THEY WERE STATUTORILY AUTHORIZED TO BE ASSIGNED TO THE ARMY COURT OF CRIMINAL APPEALS, WHETHER THEIR SERVICE ON BOTH COURTS VIOLATED THE APPOINTMENTS CLAUSE GIVEN THEIR NEWLY ATTAINED STATUS AS A SUPERIOR OFFICER.

Briefs will be filed under Rule 25 on Issue I only.

Military law recognizes three types of re-trials: a rehearing, a new trial, and an other trial. See R.C.M. 810. A rehearing (on findings, sentence, or both) may be ordered when findings or sentence are set-aside, and is a continuation of the former proceedings; a new trial may be ordered when new evidence or a fraud on the court is discovered; an other trial can occur after the original proceedings are declared invalid due to lack of jurisdiction or failure to state an offense. Separate from these – perhaps – is the possibility of a totally separate court-martial involving new charges based on the same allegations after the original charges are dismissed.

These possibilities are at the heart of a case recently certified to CAAF by the Judge Advocate General of the Air Force:

No. 17-0079/AF. United States, Appellant v. Patrick Carter, Appellee. CCA 38708. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 on this date on the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS (AFCCA) ERRED BY FINDING THAT THE CONVENING AUTHORITY EXCEEDED THE SCOPE OF AFCCA’S REMAND WHEN HE REFERRED APPELLANT’S CASE TO AN “OTHER” TRIAL UNDER R.C.M. 1107(e)(2) FOLLOWING AFCCA’S ORIGINAL REMAND DECISION

Read more »

In a Federal Register notice available here, the Joint Service Committee announces proposed modifications to the Manual for Courts-Martial for 2017 and solicits public comments. Comments are due by January 30, 2017.

Three of the proposed amendments are notable. Read more »

Before the holiday CAAF granted review of an Army case involving interpretation of Mil. R. Evid. 304(a)(2):

No. 17-0032/AR. U.S. v. Sean M. Ahern. CCA 20130822. 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 hereby granted on the following issue:

WHETHER THE LOWER COURT ERRED WHEN IT HELD THAT THE PROHIBITION AGAINST USING AN ADMISSION BY SILENCE PROVIDED BY MIL. R. EVID. 304(a)(2) IS TRIGGERED ONLY “WHEN THE ACCUSED IS AWARE OF” AN INVESTIGATION CONTRARY TO THE PLAIN LANGUAGE OF THE RULE.

Briefs will be filed under Rule 25.

The Rule states:

Failure to deny an accusation of wrongdoing is not an admission of the truth of the accusation if at the time of the alleged failure the person was under investigation or was in confinement, arrest, or custody for the alleged wrongdoing.

I discussed the Army CCA’s decision in Ahern in this post, and noted that the CCA made a first-impression interpretation of the Rule to conclude that:

Mil. R. Evid. 304(a)(2) is triggered by an investigation when the accused is aware of the investigation. Whether an accused is aware of an investigation should be determined using the same objective test as is used in the Article 31(b) context. Jones, 73 M.J. at 362 [(CAAFlog case page)].

Slip op. at 11.

In the Air Force case of United States v. Dalmazzi, No. 16-0651/AF (CAAFlog case page), CAAF is considering whether a judge of the United States Court of Military Commission Review (appointed by the President and confirmed by the Senate) may also serve as an appellate military judge on a court of criminal appeals. CAAF granted review of two issues in Dalmazzi:

I. Whether United States Court of Military Commission Review Judge, Martin T. Mitchell, is statutorily authorized to sit as one of the Air Force Court of Criminal Appeals judges on the panel that decided Appellant’s case.

II. Whether Judge Martin T. Mitchell’s service on both the Air Force Court of Criminal Appeals and the United States Court of Military Commission Review violates the Appointments Clause given his status as a superior officer on the United States Court of Military Commission Review.

CAAF also granted review of Dalmazzi-type issues in 44 trailer cases. Additionally, CAAF accepted an amicus brief from the Military Commissions Defense Organization and granted the organization 10 minutes of oral argument time (discussed here).

But last week CAAF rescinded that grant of argument time to amicus because it found an issue that has the potential to render the claim in Dalmazzi moot:

No. 16-0651/AF. U.S. v. Nicole A. Dalmazzi. CCA 38808. On further consideration of the record of trial, as supplemented following the order of the Court dated October 28, 2016, it is ordered that the parties brief the following specified issue:

WHETHER THE ISSUES GRANTED FOR REVIEW ARE MOOT WHERE THE RECORD REFLECTS THAT: MARTIN T. MITCHELL TOOK AN OATH PURPORTING TO INSTALL HIM AS A JUDGE OF THE U.S. COURT OF MILITARY COMMISSION REVIEW (CMCR) ON MAY 2, 2016; THE AIR FORCE COURT OF CRIMINAL APPEALS (AFCCA) ISSUED AN OPINION IN THE UNDERLYING CASE WITH JUDGE MITCHELL PARTICIPATING IN HIS CAPACITY AS AN AFCCA JUDGE ON MAY 12, 2016; AND THE PRESIDENT DID NOT APPOINT MITCHELL TO THE CMCR UNTIL MAY 25, 2016.

The parties will brief this issue contemporaneously, and file their briefs on or before December 1, 2016.  It is further ordered that the Court will hear oral argument only on the specified issue at the hearing scheduled for December 7, 2016, and that the order allotting amicus curiae 10 minutes to present oral argument is hereby rescinded.

While this new discovery may resolve the issue in Dalmazzi, the trailer cases (which involve other judges and later decisions) will remain.

This week at SCOTUS: Last week the Court requested a response to the cert. petition in Howell. The response is due on December 23, 2016. 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 December 6, 2016.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on December 13, 2016.

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Walters on Wednesday, November 30, 2016, at 1 p.m. No additional information is available on the CCA’s website.

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.

This week at SCOTUS: The cert petition in Howell was distributed for conference on December 2. 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 December 6, 2016.

This week at the ACCA: The Army CCA will hear oral argument in United States v. Carista, No. 20150243, on Tuesday, November 22, 2016, at 10 a.m., on the following issue:

WHETHER THE MILITARY JUDGE ERRED IN HIS APPLICATION OF MILITARY RULE OF EVIDENCE 412 BY ALLOWING THE GOVERNMENT TO INTRODUCE EVIDENCE OF PRIOR SEXUAL CONDUCT OF THE ALLEGED VICTIM OVER DEFENSE OBJECTION.

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Honea on Tuesday, November 21, 2016, at 10 a.m. No additional information is available on the CCA’s website.

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.

Maybe the timing of these developments is just a coincidence, but from one news report (here) we learn that trial in the Bergdahl case will be delayed until May because:

Prosecutors filed a motion in October requesting a trial delay. They cited the pace at which they’re able to get approval to give the defense classified evidence as a main reason for the delay.

And from another news report (here) we learn that the defense is positively giddy because it sees the election of Donald Trump to the presidency as an uncurable error:

“We’re deadly serious about seeking a dismissal,” Eugene R. Fidell told The Fayetteville Observer on Wednesday. “There’s never been a presidential candidate who singled out a military member for this kind of abuse before. It’s never happened.”

Deadly serious is an unfortunate choice of words considering that the classified evidence addressed first report includes evidence of soldiers who were allegedly injured during search and rescue missions for Bergdahl:

Former Army Spc. Jonathan Morita also testified Monday, according to the AP, describing when an unexploded rocket-propelled grenade smashed into a rifle he was holding with the force of a hammer onto his hand.

“I looked at it, and I thought, ‘That’s going to hurt in the morning.’ I didn’t feel it. Too much adrenaline,” he testified, according to the AP report.

Defense attorneys have said it was the Taliban, not Bergdahl, who caused the injuries.

And then there’s this (from the second news report):

[Retired Army JAG and law professor Victor M.] Hansen said the bigger challenge for Bergdahl’s lawyers may be to overcome the intense pretrial publicity. Bergdahl was the subject of the second season of a popular podcast, “Serial,” that played tapes of an interview Bergdahl did with a filmmaker explaining he walked off his base to cause a crisis that would catch the attention of military brass.

Deep in the category of it’s never happened before is Bergdahl’s decision to talk with filmmaker Mark Boal for long enough to produce 25 hours of recorded conversations. Conversations that were shared with the Serial podcast (presumably with Bergdahl’s permission). Conversations that include some incredibly damaging statements, as discussed in our #8 Military Justice Story of 2015.

But Bergdahl has a Trump card.

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

United States v. Swift, No. 16-0407/AR (CAAFlog case page): Oral argument audio.

United States v. Haverty, No. 16-0423/AR (CAAFlog case page): Oral argument audio.

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

United States v. Bartee, No. 16-0391/MC (CAAFlog case page): Oral argument audio.

United States v. Sager, No. 16-0418/NA (CAAFlog case page): Oral argument audio.

This week at SCOTUS: The Solicitor General waived the right to respond to the cert. petition in Howell. 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 four cases this week:

Tuesday, November 15, 2016, at 9:30 a.m.:

United States v. Bartee, No. 16-0391/MC (CAAFlog case page)

Issue: The systematic exclusion of individuals by rank from the member-selection process is prohibited. Here, the military judge dismissed the panel for violating Article 25, UCMJ, but the convening authority reconvened the exact same panel the same day. Is this systematic exclusion based on rank reversible error?

Case Links:
NMCCA opinion
Blog post: CAAF to revisit the exclusion of members on the basis of rank
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

Followed by:

United States v. Sager, No. 16-0418/NA (CAAFlog case page)

Issues:
I. In affirming the abusive sexual contact conviction, the lower court relied on facts of which the members acquitted appellant. Was this error?
II. Article 120(d), UCMJ, prohibits sexual contact on another person when that person is “asleep, unconscious, or otherwise unaware.” Despite these specific statutory terms, the lower court held that “asleep” and “unconscious” do not establish theories of criminal liability, but only the phrase “otherwise unaware” establishes criminal liability. Did the lower court err in its interpretation of Article 120(d), UCMJ?

Case Links:
NMCCA opinion
Blog post: CAAF to review the alternative ways to sexually assault someone who is unaware
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

Wednesday, November 16, 2016, at 9:30 a.m.

United States v. Swift, No. 16-0407/AR (CAAFlog case page)

Issues:
I. Whether the Army court denied appellant his substantial right to an Article 66(c) review by affirming the findings and sentence on uncharged misconduct presented at trial rather than the charged offenses.
II. Whether the military judge erred by admitting appellant’s pretrial statement where there was no independent evidence to corroborate the essential facts admitted.
[specified issue] III. Whether the evidence of the two convictions of indecent acts with a child is legally sufficient.

Case Links:
ACCA opinion
Blog post: Two interesting CAAF grants involving the hearsay rule
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

Followed by:

United States v. Haverty, No. 16-0423/AR (CAAFlog case page)

Issue: Whether the military judge committed plain error when he failed to instruct the panel on the mens rearequired for an Article 92, UCMJ, violation of Army Regulation 600-20, which prohibits requiring the consumption of excessive amounts of alcohol as an initiation rite of passage.

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

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Friday, November 18, 2016, at 10 a.m.:

United States v. Burris, No. 20150047

Issues:
I. Whether trial counsel’s improper use of character evidence, numerous references to Major Burris as “the beast” during the trial, and argument that Major Burris is guilty because he is “a beast” who “doesn’t reason” and “doesn’t care” undermine confidence that the members convicted Major Burris on the basis of the evidence alone.
II. Whether the military judge erred by failing to instruct the members on the special defense of mistake of fact as to consent.
[III]. Whether trial counsel’s improper commentary during closing argument regarding Major Burris’ exercise of his right to remain silent requires reversal.
[IV]. Whether Major Burris’ trial defense counsel were ineffective during the sentencing phase of the court-martial.

Disclosure: I am civilian appellate defense counsel for Major Burris.

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Cook, No. 38909, on Thursday, November 17, 2016, at 3 p.m. No additional information is available on the CCA’s website.

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.

CAAF will hear oral argument in the Army case of United States v. Haverty, No. 16-0423/AR (CAAFlog case page), on Wednesday, November 16, 2016, after the oral argument in Swift. The case presents a single issue – specified by the court – that questions the mens rea required for hazing in violation of a general regulation:

Whether the military judge committed plain error when he failed to instruct the panel on the mens rea required for an Article 92, UCMJ, violation of Army Regulation 600-20, which prohibits requiring the consumption of excessive amounts of alcohol as an initiation rite of passage.

Sergeant (E-5) Haverty was convicted of numerous offenses by a general court-martial composed of members with enlisted representation. One offense was violation of Article 92 for hazing by “wrongfully requiring Specialist [BB] to consume alcohol.” App. Br. at 3 (citing record). The alcohol consumption occurred while Haverty helped the other soldier prepare gear for a field exercise. Haverty verbally pressured the other soldier into consuming approximately two shots of liquor while preparing the gear. The prosecution characterized this as “order[ing] her to drink alcohol,” in closing argument. App. Br. at 8 (quoting record). Haverty was also convicted of other (touching) offenses committed against the other solder during this encounter, including cruelty and maltreatment, aggravated sexual contact, abusive sexual contact, indecent viewing, and assault consummated by battery. Gov’t Br. at 6.

Last term, in United States v. Gifford, 75 M.J. 140 (C.A.A.F. Mar. 8, 2016) (CAAFlog case page), CAAF held that an accused charged with providing alcohol to minors in violation of an order prohibiting such conduct must act with at least reckless disregard for the true age of the minors in order to be guilty of an orders violation. Haverty returns CAAF to the question of mens rea (mental state) required to violate an order, this time in the context of hazing.

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CAAF will hear oral argument in the Army case of United States v. Swift, No. 16-0407/AR (CAAFlog case page), on Wednesday, November 16, 2016, at 9:30 a.m. The case presents three issues regarding the evidence of the appellant’s convictions of indecent acts with a child, the third of which was specified by the court:

I. Whether the Army court denied appellant his substantial right to an Article 66(c) review by affirming the findings and sentence on uncharged misconduct presented at trial rather than the charged offenses.

II. Whether the military judge erred by admitting appellant’s pretrial statement where there was no independent evidence to corroborate the essential facts admitted.

[specified issue] III. Whether the evidence of the two convictions of indecent acts with a child is legally sufficient.

Specialist (E-4) Swift was twice convicted of two specifications of indecent acts with a child in violation of Article 134. The first conviction was reversed on appeal in 2012 because the Government failed to allege a terminal element (noted here). At a rehearing before a general court-martial composed of a military judge alone, Swift was again convicted and he was sentenced to confinement for 11 years, reduction to E-1, and a dishonorable discharge.

The charges against Swift alleged that he committed indecent acts with his daughter on two occasions: the first in 2003 and the second in 2007. Swift had admitted to touchings during the charged time periods, but he asserted that both were inadvertent (the first because he thought he was touching his wife and the second because it occurred during a dream about a former girlfriend). Swift’s statement was admitted into evidence against him without objection from his defense counsel. The Government also offered evidence of additional touchings, seemingly (though perhaps not exclusively) as uncharged misconduct under Mil. R. Evid. 404(b) and 414. One of these other touchings occurred in a van.

But the parties don’t agree on whether the touching in the van was charged or uncharged misconduct.

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