Lieutenant Colonel John L. Kiel, Jr., is the Chair and Professor of the Criminal Law Department at the Army Judge Advocate General’s School in Charlottesville, Virginia.  His article in January’s edition of The Army Lawyer is entitled, They Came in Like a Wrecking Ball: Recent Trends at CAAF In Dealing with Apparent UCI, 2018 Army Law. 18.

In his article, Professor Kiel explores how, lately, senior judge advocates have not only failed to curb unlawful command influence, they have furthered it. His piece focuses on two recent cases this blog has covered extensively: United States v. Boyce, 76 M.J. 242 (C.A.A.F. 2017) (CAAFlog case page) and United States v. Barry, No. 17-0162/NA (CAAFlog case page).

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Public access to CAAF’s website is restored and the court has posted this notice of an end-of-term reception at noon on Thursday, May 3, 2018.

In United States v. Zegarrundo, __ M.J. __, No. S32430 (A.F. Ct. Crim. App. Jan. 31, 2018) (link to slip op.) (CAAFlog link), a three-judge panel of the Air Force CCA finds that an error in the clemency submission from the appellant’s defense counsel requires remand for a new convening authority’s action.

The error was that defense counsel wrongly believed that the convening authority had no power to reduce the adjudged sentence to confinement, when in reality the convening authority had such power because the adjudged sentence to confinement was not more than six months.

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A few weeks ago – in this post – I noted that the websites for CAAF and the Air Force CCA (both hosted on the same server) were inaccessible from the public internet.The sites were replaced with an Application Blocked message.

The outage didn’t last long, and presumably some mid-level idiot was reprimanded.

Firing would have been a better idea.

Right now, if you try to access the AFCCA or CAAF websites from the public internet, you get only this:

It’s cool though. Members of the public aren’t interested in the decisions of a federal court subordinate only to SCOTUS.

A reader forwarded what appears to be a motion filed by the Navy-Marine Corps Appellate Government Division in United States v. Barry, No. 17-0162/NA (CAAFlog case page), titled: Appellee’s Motion to Clarify Position in Response to Questions at Oral Argument.

I write appears to be because this could be a late April Fools Day joke. Part of me hopes it is.

Nevertheless, with that caveat, the motion is available here.

It begins:

The United States moves under Rule 30 for leave to file a Motion to Clarify the United States’ position in response to questions at Oral Argument. Good cause exists: little or no precedent governs this situation where the convening authority’s post-action statements demonstrate that notwithstanding receiving legally correct advice in the Addendum Staff Judge Advocate’s Recommendation, and signing an unambiguous and legally correct Convening Authority’s Action, he misunderstood his Article 60 powers and demonstrably considered matters outside the Record, arguably adverse to the accused, but disclosed none of them prior to taking Action.

Mot. at 1.

It’s a thoroughly unusual pleading made worse by the fact that the pronoun the United States is used to refer to the Government as a party to the case (as in: “The United States moves under Rule 30. . .” Mot. at 1), to the attorney who argued the case before CAAF (as in: “The United States responded ‘yes’ and ‘it’s possible.'” Mot at 3), and to the Navy-Marine Corps Appellate Government Division (as in: “The United States does not believe. . .” Mot. at 3 n.3).

A three-judge panel of the Navy-Marine Corps CCA issued a published opinion in United States v. Shields, __ M.J. __, No. 201600133 (N.M. Ct. Crim. App. Jan. 31, 2018) (link to slip op.), holding that a Secretary of the Navy Instruction (SECNAVINST) in effect at the time of the appellant’s misconduct (but since changed), that purported to automatically cancel any directive older than seven years, did not apply to regulations already older than seven years, including the Navy’s sexual harassment instruction of which the appellant was convicted of violating.

It’s the CCA’s second opinion in the case; the court previously reversed two of the appellant’s convictions with an unpublished opinion (available here), findings that a Hills error was not harmless. This new, published opinion restates the Hills analysis from the prior, unpublished opinion, and reaches the same result.

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

This week at CAAF: CAAF will hear oral argument in two cases this week:

Wednesday, April 4, 2018, at noon. at the School of Law, The University of Texas at Austin:

United States v. Jones, No. 17-0608/AR (CAAFlog case page)

Issues:
I. Whether admission of an alleged co-conspirators confession to law enforcement violated M.R.E. 801(d)(2)(E).

II. Whether admission of the same confession violated Appellant’s Sixth Amendment right to confrontation.

III. Whether use of the confession to corroborate otherwise unsupported essential elements in Appellant’s own confession violated M.R.E. 304(g) and United States v. Adams, 74 M.J. 137 (C.A.A.F.).

Case Links:
• ACCA decision (summary disposition)
• Blog post: The (old) corroboration rule returns to CAAF
• Appellant’s brief
• Appellee’s (Army Gov’t App. Div.) brief
• Appellant’s reply brief
• Blog post: Argument preview

Thursday, April 5, 2018, at 10:00 a.m., at Fort Hood, Killeen, Texas:

United States v. Dinger, No. 17-0510/MC (CAAFlog case page)

Issue: 10 U.S.C § 6332 states that when a person is placed in a retired status, this “transfer is conclusive for all purposes.” Can a court-martial lawfully sentence a retiree to a punitive discharge?

Case Links:
• NMCCA decision (76 M.J. 552)
• Blog post: NMCCA affirms retired members still in military and subject to UCMJ
• Blog post: CAAF grants
• Appellant’s brief
• Appellee’s (Navy-Marine Corps App. Gov’t Div.) brief
• Blog post: Argument preview

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

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Hodge, No. 39259, on Friday, April 6, 2018, at noon, at Penn State Law. No additional information is available  onthe CCA’s website.

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

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

About three years ago, the New York Times reported:

An unusual coalition of largely older and conservative former military men and younger, left-leaning law students [from the University of Chicago Law School], [have launched] a joint campaign for one of the most unlikely causes: clemency for troops convicted of killing civilians in Iraq and Afghanistan.

That unlikely team has represented and obtained the early release of a number of high-profile wartime convicts, including SGT Evan Vela (CAAFLog case page), 1LT Michael Behenna (CAAFLog case page), SGT Michael P. Williams (covered by the LA Times, here), PFC Andrew Holmes (covered on this blog, here); SSgt Lawrence Hutchins III (CAAFLog news page) (covered by the Washington Times, here); Pvt Corey Clagett (covered by Fox News, here); and SPC Franklin Dunn (profiled, here). [Update: Input from a reader has provided greater clarity concerning the services which the above-referenced coalition, United Patriots, has provided to these men. The menu of services offered may have differed depending on the case.  Some men may have received only monetary support from United Patriots, some may have received only support by civilian pro bono counsel, and some men, as the New York Times reported, may have received the assistance of law students from the University of Chicago School of Law.]

The effort to obtain pardons or other clemency for men convicted of wartime murder is back in the news (here and here).  Behenna has followed-up his parole with an effort to obtain a pardon. That effort has gained the approval of the Attorney General for the State of Oklahoma, who has written a favorable letter to the President.

This renewed push for leniency may be partially inspired by the pardon of Kristian Saucier, a Navy sailor who pleaded guilty to illegally retaining photographs of classified areas of a nuclear submarine. On March 10, the President announced that pardon by Tweet:

Congratulations to Kristian Saucier, a man who has served proudly in the Navy, on your newly found Freedom. Now you can go out and have the life you deserve!

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CAAF will hear oral argument in the Marine Corps case of United States v. Dinger, No. 17-0510/MC (CAAFlog case page), on Thursday, April 5, 2018, at 10:00 a.m., at Fort Hood, Killeen, Texas. The court granted review to determine whether a court-martial may lawfully sentence a retired member to a punitive discharge, with the following issue:

10 U.S.C § 6332 states that when a person is placed in a retired status, this “transfer is conclusive for all purposes.” Can a court-martial lawfully sentence a retiree to a punitive discharge?

Gunnery Sergeant (E-7) Dinger, USMC (Ret.), pleaded guilty to two specifications of committing indecent acts, one specification of attempting to produce child pornography, two specifications of wrongfully making an indecent visual recording, and one specification of receiving, viewing, and possessing child pornography, in violation of Articles 80, 120, 120c, and 134, UCMJ. All of the offenses were committed after Dinger entered a retired status following the completion of 20 years of enlisted service in the active component of the Marine Corps. The military judge sentenced Dinger to confinement for nine years and a dishonorable discharge, and the convening authority suspended all confinement in excess of 8 years in accordance with a pretrial agreement.

The NMCCA affirmed in a published decision (76 M.J. 552) discussed here. The CCA rejected the issue now before CAAF and also rejected a separate claim that the court-martial lacked personal jurisdiction over Dinger, explaining that retired members of the active components of the armed forces remain subject to the UCMJ because “those in a retired status remain ‘members’ of the land and Naval forces who may face court-martial.” 76 M.J. at at 557.

Military retirement isn’t retirement in the ordinary meaning of the term; it’s just a change in status. Under Article 2(a)(4), the UCMJ applies to regular retirees who are entitled to pay. That category includes servicemembers who complete 20 (or more) years on active duty and accept retirement, and also those who are medically retired after less time. See United States v. Bowie, 34 C.M.R. 411, 412 (C.M.A. 1964).

The exercise of court-martial jurisdiction over retired members was the #1 Military Justice Story of 2017, and Dinger’s status as a Marine on the retired list seems indisputable. But his brief to CAAF begins by disputing it anyway:

As a civilian, Appellant appeared at his court-martial in civilian clothes.

App. Br. at 3. That Dinger was tried out of uniform is somewhat unsettling (and a better historian could probably count on one hand the number of times that’s happened under the UCMJ), but it doesn’t change the fact that he was a Marine gunnery sergeant on the retired list, entitled to pay, subject to recall, and subject to the UCMJ. In short, he was no civilian.

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Last month, in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), a unanimous CAAF held that the offense of rape of an adult (without aggravating factors) is not constitutionally punishable by death, and so the statute of limitations for a court-martial prosecution for that offense (prior to amendments enacted in 2006) is just five years.

Applying that decision, a military judge has dismissed the charges of rape of a child preferred against retired Army Major General James J. Grazioplene. Those charges were part of the #1 Military Justice Story of 2017 – Exercising court-martial jurisdiction over retired members.

The Army Times reports here:

The alleged abuse included sexual intercourse, molestation and fondling of the alleged victim on multiple occasions, beginning as young as age three.

U.S. Army Circuit Judge Col. Daniel Brookhart noted in his March 23 ruling that at the time of the alleged offense there was “no unique UCMJ article criminalizing the rape of a child.”

“…the age of the victim was not an element of the offense and bore no impact on the punishment authorized in the statute,” Brookhart wrote.

That wouldn’t have stopped Grazioplene from being charged on this allegation, though, because the broader crime of rape under UCMJ at the time could have result in a death penalty. And with the death penalty as a punishment, there was no statute of limitations after 1986.

The first three charges on the six-charge sheet fell under a three-year statute of limitations from before 1986 and were tossed out at a January hearing.

Brookhart then had to rule on the final three charges, which fell in a period from 1986 to 1989, in which rape could be punishable by death and had no statute of limitations.

However, U.S. case law later deemed it unconstitutional to execute someone for adult rape. The U.S. case law and UCMJ punishments both remained in place and at odds until 2008, when military law was changed to remove the death penalty.

Military courts had stood by previous precedent though, allowing cases that previously had no statue of limitations to continue to be charged.

But in February, the Court of Appeals for the Armed Forces, or CAAF, ruled against precedent, setting the statute of limitations on rape cases at five years.

The Army Times report also includes some inflammatory statements from a civilian attorney representing the alleged victim:

The alleged victim’s attorney, Ryan Guilds, told Army Times that his client is one of the strongest sexual assault survivors he has ever met, and “it’s really a shame that the justice system failed her.”

“The important thing to understand from the court’s ruling is it doesn’t have anything to do with the truth of what happened to a little girl from the age of three to 18,” Guilds said. “Or anything to do with the monster who violated not only his duties as a man and a human being but as an Army officer.”

CAAF will hear oral argument in the Army case of United States v. Jones, No. 17-0608/AR (CAAFlog case page), on Wednesday, April 4, 2018, at noon. The case will be argued at the School of Law, The University of Texas at Austin. CAAF granted review of three issues involving the admission of a confession of a co-conspirator:

I. Whether admission of an alleged co-conspirators confession to law enforcement violated M.R.E. 801(d)(2)(E).

II. Whether admission of the same confession violated Appellant’s Sixth Amendment right to confrontation.

III. Whether use of the confession to corroborate otherwise unsupported essential elements in Appellant’s own confession violated M.R.E. 304(g) and United States v. Adams, 74 M.J. 137 (C.A.A.F.).

Chief Warrant Officer (W2) Jones was convicted of two specifications of larceny of military property, by a general court-martial composed of a military judge alone, and was sentenced to confinement for 17 days, a reprimand, and to be dismissed. Jones was acquitted of a single specification of conspiracy to commit the charged larceny offenses.

The convictions arose out of Jones’ operation of a unit woodshop during a deployment to Kandahar, Afghanistan. The woodshop “met unit needs by completing small carpentry projects, from signage to shelving.” Gov’t Div. Br. at 3-4. It also “created numerous gifts for World War II veterans, gold-star families, foreign dignitaries, and even President Barack Obama.” App. Br. at 3.

But Jones and another Soldier – Master Sergeant (MSG Addington) – used the postal service to mail woodworking tools home, and they were charged with larceny and conspiracy to commit larceny in connection with those mailings. During separate CID interrogations, both Jones and Addington admitted to mailing the tools. During Jones’ court-martial, the prosecution offered Addington’s confession as a statement made by a co-conspirator during and in furtherance of the conspiracy. Such statements are not hearsay and are admissible under Mil. R. Evid. 801(d)(2)(E) (and the equivalent Fed. R. Evid. 801(d)(2)(E)). The defense objected but the military judge admitted Addington’s confession, Jones was convicted, and the Army court summarily affirmed.

Jones’ brief makes the rather-obvious point that “Addington’s confession to law enforcement was neither during nor in furtherance of any purported conspiracy.” App. Br. at 8. The point is so obvious that the Army Government Appellate Division concedes the error:

Regarding Issues Presented I and II, the government concedes that MSG Addington’s statement was improperly admitted under Mil. R. Evid. 801(d)(2)(E) because it was not in furtherance of a conspiracy and, therefore, its admission violated appellant’s Confrontation Clause rights because the statement represented testimonial hearsay. However, both errors were harmless beyond a reasonable doubt.

Gov’t Div. Br. at 7. But the Government Division does not concede Issue III (corroboration of Jones’ confession under the old corroboration rule), asserting that:

Even absent MSG Addington’s statement, the government provided sufficient independent evidence to raise an inference of truth for each essential fact stated in appellant’s confession.

Gov’t Div. Br. at 7.

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CAAF decided the Army case of United States v. Robinson, __ M.J. __, No. 17-0231/AR (CAAFlog case page) (link to slip op.), on Monday, March 26, 2018. One of two cases by the same name (but with different appellants) decided today, CAAF finds any error harmless and a sexual assault conviction legally sufficient, dodging a contentious debate about the reach of the constitutionally-required exception to Mil. R. Evid. 412 (the military’s rape shield rule). The court unanimously affirms the findings, sentence, and decision of the Army CCA.

Judge Ohlson writes for the court, joined by all but Senior Judge Effron who concurs in part and in the result.

CAAF granted review of two issues and specified a third:

Granted Issues:
I. Whether the miltiary judge erred by failing to admit constitutionally required evidence under Military Rule of Evidence 412(b)(1)(C).

II. Whether the military judge committed plain error when he failed to instruct the panel on the mens rea required for the specification of Charge 1, which involved an Article 92, UCMJ, violation of Army Regulation 600-20.

Specified Issue:
Whether the evidence was legally sufficient to establish that Appellant knew or reasonably should have known that SPC VM was too intoxicated to consent to a sexual act.

In 2013 Specialist (E-4) Robinson – who was a Sergeant (E-5) at the time – attended a party at the residence of another specialist. Many were in attendance, including junior enlisted soldiers. Among those in attendance was Specialist (SPC) VM, who “was the only female at the party.” Slip op. at 3.

Much alcohol was consumed, and “SPC VM abruptly left the party after she became uncomfortable with another guest’s behavior and drove back to her barracks.” Slip op. at 3. Robinson later went to SPC VM’s barracks room, having “told his wife that he was leaving home to go check on a ‘drunk Soldier’ in the barracks.” Slip op. at 7. While SPC VM testified to little memory of the events in her barracks room, Robinson and VM both testified at trial that sexual intercourse occurred. Robinson, however, testified that the intercourse was consensual. But the military judge applied Mil. R. Evid. 412 to prohibit Robinson from testifying “that SPC VM had flirted with [him] for several months before [the party].” Slip op. at 4. The military judge “concluded that the evidence of SPC VM’s flirting on the night of the party was admissible, but not the evidence of flirting in the months leading up to the party.” Slip op. at 4.

A general court-martial composed of members with enlisted representation convicted Robinson of violating a lawful general regulation (fraternization) and sexual assault of a person who was incapable of consenting due to impairment by an intoxicant, in violation of Articles 92 and 120. The members sentenced Robinson to reduction to E-1, total forfeitures, and a bad-conduct discharge (and no confinement). The Army CCA affirmed in a summary disposition.

CAAF’s grant of the issue questioning whether the military judge’s Mil. R. Evid. 412 ruling was error got attention, including from the victims-rights advocacy group, Protect Our Defenders (POD) which filed an amicus brief asserting that an alleged victim’s privacy interests can override an accused’s right to present constitutionally-required evidence.

But today’s opinion doesn’t address that contentious issue, nor does it address the mens rea required for fraternization in violation of Army Regulation 600-20. Rather, finding the sexual assault conviction legally sufficient (an unsurprising result considering the high burden for reversal on this basis), a majority of CAAF concludes that any error in the military judge’s Mil. R. Evid. 412 ruling and the instructions on the fraternization offense was harmless because the evidence of guilt is overwhelming.

Only Senior Judge Effron would go further, but not much further. He finds that the “wide range of behavior from mild teasing to sexual innuendo” excluded under Mil. R. Evid. 412 “was, at best, marginally relevant to the charged offenses and relevant defenses.” Con. op. at 5-6. Accordingly, while Senior Judge Effron does not agree that the excluded evidence “was so inconsequential that the error was harmless beyond a reasonable doubt,” con. op. at 4, he nevertheless concludes that Robinson has not shown error in its exclusion.

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CAAF decided the Air Force case of United States v. Robinson, __ M.J. __, No.17-0504/AF (CAAFlog case page) (link to slip op.), on Monday, March 26, 2018. One of two cases by the same name (but with different appellants) decided today, in this case a majority of the court finds no constitutional violation in military investigators requesting a device passcode from a suspect who consented to a search of the device after invoking his right to remain silent and requesting an attorney, affirming the published decision of the Air Force CCA.

Judge Ohlson writes for the court joined by all but Chief Judge Stucky, who dissents.

Last term, in the interlocutory case of United States v. Mitchell, 76 M.J. 413 (C.A.A.F. Aug. 30, 2017) (CAAFlog case page), CAAF held that because continued questioning of a suspect after he invokes his right to counsel violates the Fifth Amendment, the contents of a cell phone must be suppressed when military investigators request the passcode to decrypt the phone after the suspect requests an attorney. The decision was the #4 Military Justice Story of 2017.

Senior Airman (E-4) Robinson was convicted of communicating indecent language to a minor in violation of Article 120b, and sentenced to confinement for one month, reduction to E-1, and a bad-conduct discharge. The evidence admitted against Robinson included text messages extracted from his cell phone. Those messages were obtained after the investigators asked Robinson for the passcode to the phone. That request, however, came after Robinson informed the investigators that he had an attorney and invoked his right to remain silent.

At trial, Robinson’s defense counsel moved to suppress the text messages on the basis that Robinson’s consent to search and his disclosure of the passcode were both involuntary. The military judge denied the motion and the Air Force CCA affirmed in a published decision (76 M.J. 663) (analyzed here). The CCA also rejected a claim that the search of the device exceeded the scope of the consent, finding that the failure to raise the issue at trial waived it. CAAF then granted review of two issues:

I. Whether the military judge abused his discretion by failing to suppress evidence obtained from Appellant’s cell phone.

II. Whether the Air Force Court erred in holding Appellant waived objections regarding investigators’ exceeding the scope of Appellant’s consent.

In today’s opinion Judge Ohlson and the majority reject application of Mitchell by distinguishing the facts of this case from the facts of Mitchell. Judge Ohlson also explains that waiver applies to the scope issue raised for the first time on appeal based on the wording of the applicable Military Rule of Evidence and CAAF’s precedent interpreting that rule.

Chief Judge Stucky, however, dissents from the court’s resolution of the first issue. The Chief Judge – who authored the court’s opinion in Mitchell – finds this case indistinguishable from Mitchell, and he would not reach the second issue.

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This week at SCOTUS: A supplemental brief (available here) was filed in Abdirahman, et al. (the Ortiz trailer cases) seeking application of CAAF’s decision in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), to one of the petitioners.

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

This week at CAAF: The next scheduled oral argument at CAAF is on April 4, 2018.

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

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on April 6, 2018 (at Penn State Law).

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

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

CAAF decided the Air Force case of United States v. Wheeler, __ M.J. __, No.17-0456/AF (CAAFlog case page) (link to slip op.), on Thursday, March 22, 2018. Limiting the preemption doctrine to cases where a federal offense is incorporated under Clause 3 of Article 134 for the purpose of reducing the prosecution’s evidentiary burden at trial, CAAF concludes that the appellant’s conviction of coercion and enticement of a minor in violation of 18 U.S.C. § 2422(b) is not preempted by the enumerated offense of sexual abuse of a child in violation of Article 120b(c) because there is no indication that the federal offense was charged in order to circumvent an element of the Article 120b offense. Accordingly, CAAF affirms the findings, sentence, and published decision of the Air Force CCA.

Judge Ryan writes for a unanimous court.

Staff Sergeant (E-5) Wheeler was convicted contrary to his pleas of not guilty “of one specification of attempting to commit a lewd act upon a person he believed to be a child, in violation of Article 80, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 880 (2012), and one specification of attempting to persuade, induce, or entice a person he believed to be a child to engage in sexual activity through the use of interstate commerce in violation of 18 U.S.C. § 2422(b) (2012), and charged under clause three of Article 134, UCMJ, 10 U.S.C. § 934 (2012).” Slip op. at 1. He was sentenced to confinement for 30 months, reduction to E-1, total forfeitures, and a dishonorable discharge.

Wheeler moved to dismiss the Title 18 offense at trial, arguing that it was preempted by Article 120b. The preemption doctrine – the basis for Wheeler’s motion – is a limitation on the use of Article 134 that “prohibits application of Article 134 to conduct covered by Articles 80 to 132.” MCM pt. IV, para. 60.c.(5)(a). The military judge denied the motion, and the Air Force CCA affirmed in a published decision, reasoning in part that the Title 18 offense addresses “a harm that the UCMJ does not specifically address.” United States v. Wheeler, 76 M.J. 564, 572 (A.F. Ct. Crim. App. 2017).

CAAF then granted review to determine:

Whether the lower court erroneously concluded Charge II was not preempted by Article 120b, UCMJ, 10 U.S. C. § 920.

Yesterday’s decision affirms the Air Force CCA’s reasoning with a narrow interpretation of the preemption doctrine.

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