Note: For the next few days I’m going to try to catch up on some significant CCA opinions that I’ve collected over the past few months.

In an unpublished opinion in United States v. Gardner, No. 20120193 (A. Ct. Crim. App. Aug. 28, 2014) (link to slip op.), pet. for rev. filed, 73 M.J. 480, No. 15-0043/AR (C.A.A.F. Sep. 18, 2014), the Army CCA reviewed the appellant’s convictions of three specifications of aggravated sexual assault upon a substantially incapacitated person, in violation of Article 120 (2006), based upon the following facts:

Appellant took advantage of his drunk, sleepy, and sick sister-in-law, JF, by twice penetrating her vagina on separate and distinct occasions during the course of one night, and, as part of the initial assault, inserting his fingers into her vagina. He did this, he admitted, to take revenge upon his wife, JF’s sister, who he suspected of cheating on him. This admission was accompanied by other damning and self-incriminating statements made by appellant, to include: that JF never consented to any sexual activity with him; that she was passed out; that she was out of it; that he raped her; and that after he had done so he whispered in her ear “I just raped you.”

JF’s testimony corroborated appellant’s admissions to CID. She was drunk, sick from the alcohol consumed, tired, and in and out of sleep throughout the night and during appellant’s assaults upon her. She remembered appellant waking her up, penetrating her with his fingers and his penis, but testified that she was unable to move or respond or utter any words at all. She was at a loss as to why she was so paralyzed.

Slip op. at 2. In the face of these damning facts, the appellant offered the following opinion of a forensic toxicologist expert witness:

that in his opinion a person who could remember what happened to him and perceive an assault committed upon him could not have been completely incapacitated by alcohol; that one paralyzed by alcohol would neither be conscious nor have memories of any events that occurred during the paralysis.

Slip op. at 3. But the military judge prohibited the testimony at trial, concluding that it “contradicts the statutory definition of substantial incapacitation,” that it “would be equivalent to ‘human lie detector’ testimony,” and that it was “insufficiently reliable to admit under Daubert.” Slip op. at 3. The CCA finds that this ruling was error, but that it was harmless.

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There was a lively debate in the comments section of my October post titled: The Army CCA applies Cimball Sharpton to (erroneously) affirm larceny from a debit card holder. In my post I argued that a service member’s fraudulent use of another person’s debit card was a larceny from the merchants where the card was used, and not from the account holder, even when the fraudulent use of the card caused a reduction in the account holder’s balance, and I concluded that the Army CCA was wrong to affirm (in a published opinion) an appellant’s guilty plea to larceny from another service member based on such fraudulent activity.

That conclusion drew some thoughtful opposition in the comments section, but I stuck with my analysis. The appellant petitioned CAAF for review on December 3, 2014 (No. 15-0202/AR), so it will likely be a few more months before we learn if I was right.

But an article published in the November issue of the Army Lawyer adds support to my argument:

In the case of a debit card relationship, an account holder has deposited money with the bank against which the POS or ATM transactions are drawn; however, due to the military courts’ application of commercial law principles, the account holder is not the “owner” of her deposits within the meaning of Article 121. Absent special arrangements, the title to the money deposited is transferred to the bank when a deposit is made by the account holder into his her account.

This is true because money deposited with a financial institution, absent special arrangements, is considered a general deposit. In the case of general deposits, “[t]he general transaction between the bank and a customer in the way of deposits to a customer’s credit, and drawing against the account by the customer, constitute the relation of creditor and debtor.” As such, there “is nothing of a trust or fiduciary nature in the transaction, nor anything in the nature of a bailment . . . or in the nature of any right to the specific monies deposited.” Thus, the account holder has neither title to nor possession of the money in his or her debit account—only an agreement from the bank “to pay an equivalent consideration when called upon by the depositor in the usual course of business.”

The same is true in the case of a credit card agreement. The relationship between the bank and the account holder is one of creditor and debtor—the roles being reversed such that the account holder, not the bank, is the debtor. Just as in a debit card relationship, the credit-card account holder has neither title to nor possession of the line of credit that is extended by the bank.

Major Benjamin M. Owens-Filice, “Where’s the Money Lebowski?” — Charging Credit and Debit Card Larcenies Under Article 121, UCMJ, Army Law., August 2014, at 3, 9 (direct link to article).

The article is a comprehensive review of this topic, and it includes a handy chart on the last page. I think the article is entirely consistent with my October post, and I encourage anyone litigating a larceny case to read both the article and my post.

In a published opinion in United States v. Thomas, __ M.J. __, No. 201300357 (N-M. Ct. Crim. App. Nov. 28, 2014) (link to slip op.), the Navy-Marine Corps CCA reverses a forcible rape conviction on factual sufficiency grounds after concluding that “the Government treated ‘force’ and ‘unlawful force’ as if they were separate, unrelated concepts,” and explaining that:

Contrary to trial counsel’s argument, unlawful force is not a separate, distinct, and lesser type of force that can sustain a conviction for rape. Rather, the definitions set forth in Article 120 must be read together. There must be force, as defined by the statute, and that force must be unlawful. In other words, the Government must prove beyond a reasonable doubt that the accused used a weapon; used such physical strength or violence as is sufficient to overcome, restrain, or injure a person; or inflicted physical harm sufficient to coerce or compel submission by the victim, and that those acts were “done without legal justification or excuse.” See 10 U.S.C. § 920(g)(5)–(6).

Slip op. at 4 (emphasis in original). Having defined the force necessary to support a conviction for forcible rape, the CCA’s “review of the record fails to discern any evidence that the appellant used force, as defined in the statute, to commit a sexual act.” Slip op. at 6.

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CAAF granted review in four cases on Monday:

No. 14-0783/NA. U.S. v. Marshand A. Woods. CCA 201300153.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED BY DENYING A CHALLENGE FOR CAUSE AGAINST THE COURT-MARTIAL PRESIDENT, WHO SAID THE “GUILTY UNTIL PROVEN INNOCENT” STANDARD IS “ESSENTIAL” TO THE MILITARY’S MISSION?

Briefs will be filed under Rule 25.

The NMCCA’s opinion is available here.

No. 15-0011/AF. U.S. v. Joshua K. Plant. CCA 38274.  On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO SUPPORT THE FINDING OF GUILTY TO CHARGE V AND ITS SPECIFICATION (CHILD ENDANGERMENT) BECAUSE THE EVIDENCE FAILED TO PROVE APPELLANT’S ALCOHOL USE ALONE AMOUNTED TO CULPABLE NEGLIGENCE THAT ENDANGERED THE WELFARE OF L.P.

Briefs will be filed under Rule 25.

The AFCCA’s opinion is available here. Appellant’s conviction of child endangerment was based on his consumption of alcohol during a party at his own house, while his approximately 13-month old child slept in another room. The CCA found the evidence to be legally and factually sufficient, concluding that “the appellant’s alcohol use and the circumstances surrounding that alcohol use might foreseeably result in harm to the child, even if such harm would not necessarily be the natural and probable consequences of such acts.” Slip op. at 7.

No. 15-0029/AR. U.S. v. Levi A. Keefauver. CCA 20121026.  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 ARMY COURT ERRED IN FINDING THE PROTECTIVE SWEEP WAS APPROPRIATE IN TOTAL.

Briefs will be filed under Rule 25.

The ACCA’s opinion is available here. I noted this opinion in August, in this post.

No. 15-0059/NA. U.S. v. Darron D. Ward, Jr. CCA 201400021.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

THE CONVENING AUTHORITY ISSUED AN INSTRUCTION THAT LIMITED COURT-MARTIAL MEMBER NOMINATIONS TO PERSONNEL ONLY IN THE PAY GRADES BETWEEN E-7 AND O-5. THE LOWER COURT FOUND THIS SYSTEMATIC EXCLUSION OF PERSONNEL TO BE ERROR, BUT HARMLESS. SHOULD THIS COURT SET ASIDE APPELLANT’S CONVICTIONS BASED ON THE RATIONALE OF UNITED STATES v. KIRKLAND DUE TO THE UNRESOLVED APPEARANCE OF UNFAIRNESS?

Briefs will be filed under Rule 25.

The NMCCA’s opinion is available here. The CCA found the exclusion of personnel  based on rank to be harmless based on six factors: “(1) no evidence that the errant instruction was issued with an improper motive; (2) no evidence that the CA had an improper motive when detailing the members assigned to the appellant’s court-martial; (3) the CA was a person authorized to convene a general court-martial; (4) the CA was properly advised of his Article 25 responsibilities, and that he could pick any member of his command, not just those who had been nominated; (5) the court members were personally chosen by the CA from a pool of eligible candidates; and, (6) the court members all met the criteria in Article 25, UCMJ.” Slip op. at 5.

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

United States v. Buford, No. 14-6010/AF (CAAFlog case page): Oral argument audio.

United States v. Gutierrez, No. 13-0522/AF (CAAFlog case page): Oral argument audio.

Additionally, audio of the December 3, 2014, oral argument at the NMCCA in United States v. Henderson (TWIMJ post) is available here.

CAAF granted review in three cases on December 3rd, summarily reversing the CCA in one.

First, CAAF granted review in United States v. Nettles, No. 14-0754/AF. I discussed the AFCCA’s opinion in this case in a post last June titled: The AFCCA rejects constitutional protections for threesomes. But CAAF will not consider the appellant’s as-applied constitutional challenge to his conviction for indecent acts in violation of Article 134 based upon his actions in permitting a third-party to watch and videotape consensual sexual activity between himself and his partner. Rather, CAAF will consider a more fundamental question:

Whether the Air Force had personal jurisdiction over Appellant at the time of his trial.

This issue was considered by the AFCCA, but it was rejected based on the court’s conclusion that the appellant never received a discharge certificate. The CCA’s opinion gives what might be a preview of the appellant’s argument to CAAF:

The appellant argues that ARPC’s 25 September 2012 order was self-executing, or to put it differently, that ARPC issued a prospective discharge certificate. To satisfy the first prong of discharge case law (that the discharge certificate must be delivered to be effective), he argues that ARPC’s 14 March 2012 notice that a discharge would occur in the future was in effect the “delivery” of the discharge certificate that would not be generated for another six months.

United States v. Nettles, No 38336, slip op. at 5 (A.F. Ct. Crim. App. Apr. 21, 2014) (emphasis added) (link to unpub. op.).

CAAF’s second grant was in another trailer to the Army case of United States v. Phillips, No. 14-0199/AR (CAAFlog case page):

No. 15-0116/AR. U.S. v. Derrick L. Hardy. CCA 20120816. 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 IT WAS AN ABUSE OF DISCRETION FOR THE MILITARY JUDGE TO ACCEPT A PLEA OF GUILTY FOR WILLFUL VIOLATION OF A SUPERIOR COMMISSIONED OFFICER IN THE SPECIFICATION OF CHARGE I DESPITE THE ULTIMATE OFFENSE DOCTRINE AND THE MILITARY JUDGE’S APPLYING THE MAXIMUM PUNISHMENT FOR BREAKING RESTRICTION UNDER ARTICLE 134, UCMJ.

No briefs will be filed under Rule 25.

This is the sixth such trailer case. I discussed the other five in this post.

Finally, CAAF granted and summarily reversed in a Marine Corps case involving a second convening authority’s action issued after the record of trial was forwarded to the CCA for appellate review:

No. 15-0077/MC. U.S. v. Matthew T. Engler. CCA 201300365. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals and the record of trial, the Court notes a number of errors in the post-trial processing of this case and decision of the lower court: (1) the civilian defense counsel advised the staff judge advocate that he would not submit clemency matters, but then submitted clemency matters several weeks after the convening authority took his initial action; (2) the convening authority purported to take a second action after he forwarded the record to the lower court and thereby lost jurisdiction in the case; (3) the convening authority failed to include the clemency matters in the record; (4) the lower court failed to order the government to produce the missing clemency submission; and (5) the lower court found a legal basis for a conclusion of no prejudice in the second action despite that action being a legal nullity. Accordingly, it is ordered that said petition is hereby granted on the following issue:

CAN A MILITARY APPELLATE COURT USE AN UNLAWFUL CONVENING AUTHORITY’S ACTION TO NEGATE PREJUDICE WHEN TESTING FOR INEFFECTIVE ASSISTANCE OF COUNSEL DURING POST-TRIAL CLEMENCY PROCESSING?

The decision of the United States Navy-Marine Corps Court of Criminal Appeals is reversed, and the convening authority’s actions are set aside. The record of trial is returned to the Judge Advocate General of the Navy for submission to an appropriate convening authority for a new recommendation and action. Thereafter, Articles 66 and 67, Uniform Code of Military Justice, 10 U.S.C. §§ 866 and 867 (2012) shall apply.

The NMCCA’s opinion is available here.

CAAF will hear oral argument in the Army case of United States v. Bennitt, No. 12-0616/AR (CAAFlog case page), on Wednesday, December 10, 2014. This will be CAAF’s second review of Private Bennitt’s 2010 court-martial, where he was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of involuntary manslaughter by aiding and abetting in violation of Article 119(b)(2). He was also convicted, in accordance with his pleas of guilty, of four specifications each of wrongful use and distribution of a controlled substance in violation of Article 112a. He was sentenced to confinement for 70 months, total forfeitures, reduction to E-1, and a dishonorable discharge.

On initial review in 2012 the Army CCA affirmed the findings and sentence. However, CAAF reversed. In an opinion authored by Judge Stucky, CAAF found that Bennitt’s distribution of prescription opioid painkillers to his 16 year-old girlfriend (“LK”), who overdosed and died while in the Appellant’s barracks room in 2009, did not amount to an offense directly affecting the person sufficient to support a conviction of involuntary manslaughter in violation of Article 119(b)(2). United States v. Bennitt, 72 M.J. 266 (CAAFlog case page).

That left Private Bennitt convicted of four specifications each of wrongful use and distribution of a controlled substance – offenses he pleaded guilty to without the benefit of a pretrial agreement – and CAAF remanded the case to the Army CCA to reassess the sentence. But the Army CCA again affirmed the entire adjudged sentence. This action caught my attention, and I wrote about it in a 2013 post titled: Bennitt’s sentence remains the same. CAAF subsequently granted review of a single issue:

Whether the army court of criminal appeals abused its discretion by reaffirming appellant’s approved sentence after this court set aside his conviction for manslaughter.

The Army CCA based its action on its conclusion that:

Although appellant now stands acquitted of involuntary manslaughter, pursuant to Rule for Courts-Martial 1001(b)(4), LK’s death was directly related to appellant’s conviction for oxymorphone distribution. Therefore, the evidence underlying the dismissed charge was proper aggravation evidence

United States v. Bennitt, No. 20100172, slip op. at 2 (A.Ct.Crim.App. Sep. 25, 2013). But Appellant’s brief to CAAF asserts that the death of LK was not a proper matter in aggravation because the manslaughter conviction was the only offense that involved her:

During the plea colloquy, PV2 Bennitt admitted to distributing oxymorphone to Privates (PVT) Swindle, Doherty, and Waldroop on February 14, 2009. (JA 51-57). Private Bennitt also asserted that he only distributed alprazolam once to PVT Doherty on February 14, 2009. (JA 58-60, 69-70). Private Bennitt never admitted to distributing oxymorphone or alprazolam to LK during the providence inquiry. (JA 51-60, 69-70).

App. Br. at 5. Because of this, Appellant asserts that any facts involving the death of LK are uncharged misconduct, and that such evidence is generally inadmissible and must be tested for under prejudice under M.R.E. 403. App. Br. at 14. But the Government feels differently, relying on the fact that there was a presentation of the case on the merits that went well beyond Appellant’s pleas of guilty and included significant evidence about his distribution of drugs to LK.

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CAAF will hear oral argument in the Air Force case of United States v. Torres, No. 14-0222/AF (CAAFlog case page), on Wednesday, December 10, 2014. The case is the latest in a series of instructional error cases considered by the court, and presents a single issue:

Whether the military judge erred by denying the defense requested instruction.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of one specification of aggravated assault and three specifications of assault consummated by a battery, in violation of Article 128. He was sentenced to confinement for six months, reduction to E-1, and a bad-conduct discharge.

Appellant was charged with assaulting his wife, “VJT,” by “choking her throat with his hands with a force likely to produce death or grievous bodily harm.” App. Br. at 2. Appellant’s defense was that he had suffered a seizure and his actions were involuntary. At trial, the Defense called a neurologist as an expert witness who testified that in the “postictal period” after a seizure a person may become involuntarily violent. App. Br. at 7-8. The Defense then asked the military judge to instruct the members that the Government was required to prove voluntariness beyond a reasonable doubt, with an instruction that:

began by stating, “The evidence in this case has raised an issue whether the acts alleged in the Specification of Charge I were committed voluntarily.” App. Ex. IV; J.A. 190. The instruction ended by stating, “What is in issue is whether the government has proven beyond a reasonable doubt that the accused acted voluntarily.” Id.

App. Br. at 10. The Defense also explicitly disclaimed the affirmative defense of lack of mental responsibility, noting that it “would unfairly shift the burden to the defense to prove that Appellant was not acting voluntarily.” App. Br. at 9.

The Defense position at trial highlights the difference between a defense and an affirmative defense – something that I analyzed in my recent article about defenses to adult sexual offenses (discussed here). Broadly speaking, a defense is something that disproves an element of the crime, while an affirmative defense is something that does not disprove an element but rather seeks to avoid criminal responsibility. Due process requires that the prosecution disprove all defenses, but due process permits a statutory scheme that requires the defense to prove an affirmative defense.

In Torres, the military judge refused to give the instruction requested by the Defense. Moreover, he gave the standard instruction regarding lack of mental responsibility. In accordance with Article 50A, that instruction requires the Defense to prove the affirmative defense lack of mental responsibility by clear and convincing evidence. In doing so, the military judge may have improperly relieved the Government of its burden to disprove Appellant’s defense that his actions were involuntary.

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CAAF decided the interlocutory Marine Corps case of United States v. Vargas, __ M.J. __, No. 14-6009/MC (CAAFlog case page) (link to slip op.), on Monday, December 8, 2014. The court holds that the Article 62 does not confer jurisdiction for the Government’s appeal of the military judge’s ruling that denied a Government request for a continuance, reversing the decision of the Navy-Marine Corps CCA and remanding the case for further trial proceedings.

Judge Erdmann writes for the court, joined by Judges Stucky, Ryan, and Ohlson. Chief Judge Baker dissents.

Appellant is a Marine Staff Sergeant charged with a single specification of assault consummated by a battery. Trial before a special court-martial with members began on October 22, 2013, and was docketed for three days. Government counsel planned to call seven witnesses; four on the first day and three on the second day. However, the empanelment of members and the testimony of the first four witnesses went faster than anticipated, and by mid-afternoon on the first day the Government counsel was unprepared to present any more evidence until the second day. So, Government counsel requested a continuance until the following morning.

But the Defense opposed the continuance and the military judge denied it. Government counsel then gave notice of intent to appeal the judge’s ruling. This notice is supposed to stop the proceedings (pursuant to R.C.M. 908(b)(1)), but the military judge kept going, including resting the Government’s case and denying a Defense motion for a finding of not guilty pursuant to R.C.M. 917 (the Defense rested without presenting any evidence). The parties began to discuss instructions for the members before the military judge finally stopped the proceedings for the Government’s appeal.

That evening Government counsel changed course, sending the judge an email disclaiming any intent to appeal the denial of the continuance and asking for reconsideration of the ruling that the Government’s case was rested. The next day the military judge heard the Government’s motion for reconsideration and reaffirmed her rulings. The Government then gave a second notice of intent to appeal, and an interlocutory appeal under Article 62 followed.

A three-judge panel of the NMCCA granted that appeal, vacating the judge’s rulings, after finding that it had jurisdiction to do so under Article 62 (which authorizes Government appeals in various situations including of “an order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding.” Article 62(a)(1)(B)). The CCA determined that:

By denying the trial counsel’s motion for a recess until the next morning and then sua sponte resting the Government’s case, the military judge effectively denied the Government the opportunity to present critical testimony that is substantial proof of a fact material in the proceeding.

United States v. Vargas, No. 201300426, slip op. at 9 (N-M. Ct. Crim. App. Feb. 28, 2014) (discussed here). CAAF then granted review to determine whether the CCA had jurisdiction to reach this conclusion, with the following issue:

Whether the Navy-Marine Corps Court of Criminal Appeals erroneously interpreted Article 62, UCMJ, to allow a Government appeal of the military judge’s denial of a continuance request as well as the military judge’s order resting the Government’s case.

In today’s opinion the court answers this question with a clear “No.”

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A year ago, in a post titled: A service member facing involuntary administrative separation is entitled to “qualified counsel,” not the “effective assistance of counsel,” I wrote about a decision of the Court of Federal Claims in Helferty v. United States, No. 11-358C, __ Fed.Cl. __ (Nov. 15, 2013) (link to slip op.).

Mr. Helferty has appealed to the Court of Appeals for the Federal Circuit, and that court recently heard oral argument in the case. Audio of the oral argument is available here.

Update (December 9, 2014): The Federal Circuit has summarily affirmed the decision of the Court of Federal Claims. The decision is available here.

CAAF will hear oral argument in the Air Force case of United States v. Gutierrez, No. 13-0522/AF (CAAFlog case page), on Tuesday, December 9, 2014. The case involves a diverse set of issues and an unusual fact pattern. Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge sitting alone, of failing to obey a lawful order, committing indecent acts, aggravated assault, and adultery, in violation of Articles 92, 120, 128, and 134. He was sentenced to confinement for eight years, total forfeitures, reduction to E-1, and a dishonorable discharge. Appellant’s convictions all relate to “engaging in sexual relations without informing his partners that he had tested positive for the Human Immunodeficiency Virus (HIV).” App. Br. at 2.

The Air Force CCA affirmed the findings and sentence in an opinion dated March 21, 2013. CAAF then granted review and scheduled the case for oral argument on December 16, 2013. But two weeks before the oral argument, CAAF remanded the case for a new review by a properly constituted panel of the Air Force CCA. See United States v. Janssen, 73 M.J. 221 (C.A.A.F. Apr. 15, 2014) (CAAFlog case page). On remand, the CCA again affirmed the findings and sentence in an opinion dated February 25, 2014. CAAF subsequently granted review of three issues:

I. Whether the evidence was legally insufficient to find beyond a reasonable doubt that appellant committed assault likely to result in grievous bodily harm.

II. Whether the evidence was legally sufficient to find beyond a reasonable doubt that appellant committed adultery.

III. Whether the facially unreasonable delay in post trial processing deprived appellant of his due process right to speedy review pursuant to United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006).

If this background doesn’t make this case unusual enough, Appellant’s brief begins its statement of fact with the following sentence:

Appellant, with the express consent and involvement of his spouse, Gina Gutierrez, engaged in a “swinger’s lifestyle” while assigned to McConnell AFB.

App. Br. at 3. And then there’s another twist:

After trial, Appellant’s medical records were reviewed by Dr. Rodney Richards, a preeminent chemist and expert in the field of HIV testing. (J.A. 321-40). Dr. Richards’ review of the records led him to the conclusion that Appellant was not HIV positive.

App. Br. at 7.

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CAAF will hear oral argument in the interlocutory Air Force case of United States v. Buford, No. 14-6010/AF (CAAFlog case page), on Tuesday, December 9, 2014. The case involves a Government appeal of a military judge’s ruling that suppressed evidence discovered on the accused’s electronic devices (a laptop and a thumb drive) and on external accounts accessed through one of those electronic devices (a Facebook page and an email account). The Air Force CCA affirmed the military judge’s ruling in part and reversed it in part. The Judge Advocate General of the Air Force then certified the case to CAAF, and the court granted a second issue:

Certified Issue: Whether the military judge abused her discretion by suppressing evidence from the dell laptop, hewlett-packard laptop, and centon hard drive.

Granted Issue: Whether the Air Force Court of Criminal Appeals (AFCCA) erred by finding A.B. consented to law enforcement’s search of the centon thumb drive and the dell laptop.

The procedural posture puts the Government in the position of Appellant and Cross-Appellee, while the accused is Appellee and Cross-Appellant. I will refer to the parties as the Government and Appellee.

Appellee is charged with committing an indecent act with a minor in violation of Article 120, and six specifications relating to receipt receipt, possession (on three separate devices: a Dell laptop, a Hewlett-Packard (HP) laptop, and a Centon flash drive), access, and distribution of child pornography, in violation of Article 134, UCMJ. On October 5, 2013, the military judge granted a Defense motion to suppress evidence contained on the three electronic devices. After granting a Government motion for reconsideration and hearing additional argument, the military judge affirmed the suppression ruling. The Government then appealed to the AFCCA, which reversed the military judge in part. The Judge Advocate General of the Air Force then certified the case to CAAF, and CAAF subsequently granted a separate petition for review filed by Appellee.

The facts of the case involve the discovery by Appellee’s wife of evidence of sexually explicit communications between Appellee and other females. Appellee’s wife shared this information with a male friend of hers, Airman First Class (A1C) Marlow, who was also an active duty Air Force Security Forces member. A1C Marlow preserved screenshots of sexually explicit matters and encouraged Appellee’s wife to make a formal report to law enforcement. Eventually, Appellee’s wife briefly cooperated with investigators, resulting in the search and seizure of various electronic media.

The case presents a dense and complex web of legal issues, including private searches, consent to search, inevitable discovery, the validity of a search authorization, the applicability of law enforcement’s good faith reliance on the search authorization, and the appropriateness of the application of the exclusionary rule. A number of these issues have received significant recent attention from CAAF. For instance, the court considered private searches in United States v. Wicks, 73 M.J. 93 (C.A.A.F. Feb. 20, 2014) (CAAFlog case page), and I discussed the court’s ongoing debate about the application of the exclusionary rule in this post.

It’s hard to predict what CAAF will focus on in this week’s oral argument, but I think the question that has the greatest significance is whether A1C Marlow was acting as a Government agent during his early involvement in the case.

Read more »

Significant military justice event this week: The Judicial Proceedings Panel (JPP) will hold a public meeting on Friday, December 12, 2014, at the Holiday Inn Arlington at Ballston, 4610 N. Fairfax Drive, Arlington, Virginia 22203. Here is a link to a public notice of the meeting. I discussed the DoD’s establishment of the JPP in this post. The panel’s website is: http://jpp.whs.mil/

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

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

Tuesday, December 9, 2014, beginning at 9:30 a.m.:

United States v. Buford, No. 14-6010/AF (CAAFlog case page)

Certified Issue: Whether the military judge abused her discretion by suppressing evidence from the dell laptop, hewlett-packard laptop, and centon hard drive.
Granted Issue: Whether the Air Force Court of Criminal Appeals (AFCCA) erred by finding A.B. consented to law enforcement’s search of the centon thumb drive and the dell laptop.

Case Links:
AFCCA oral argument audio
AFCCA opinion
Blog post: AFCCA partially denies a Government appeal of a suppression ruling
Blog post: The Air Force certifies Buford
Blog post: Hernandez appeals and CAAF grants in Buford
Appellant’s (Government) brief on the certified issue
Appellee’s brief on the certified issue
Cross-Appellant’s supplement to the petition for grant of review
Cross-Appellee’s (Government) answer to the petition for grant of review

United States v. Gutierrez, No. 13-0522/AF (CAAFlog case page)

Issues:
I. Whether the evidence was legally insufficient to find beyond a reasonable doubt that appellant committed assault likely to result in grievous bodily harm.
II. Whether the evidence was legally sufficient to find beyond a reasonable doubt that appellant committed adultery.
III. Whether the facially unreasonable delay in post trial processing deprived appellant of his due process right to speedy review pursuant to United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006).

Case Links:
AFCCA opinion
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
• Brief of Amicus Curiae (Army Defense Appellate Division)

Wednesday, December 10, 2014, beginning at 9:30 a.m.:

United States v. Torres, No. 14-0222/AF (CAAFlog case page)

Issue: Whether the military judge erred by denying the defense requested instruction.

Case Links:
AFCCA opinion
Blog post: CAAF grants review in 7th instructional error case of the term
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief

United States v. Bennitt, No. 12-0616/AR (CAAFlog case page)

Issue: Whether the Army Court of Criminal Appeals abused its discretion by re-affirming appellant’s approved sentence after this court set aside his conviction for manslaughter.

Case Links:
United States v. Bennitt, 72 M.J. 266 (C.A.A.F. 2013) (CAAFlog case page)
ACCA opinion
Blog post: Bennitt’s sentence remains the same
Blog post: Two new grants (one predicted, the other a trailer) and the return of Senior Judge Cox
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief

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

United States v. Rude, No. 20120139

Issues:
I. Whether the military judge erred in failing to apply any of the procedural safeguards required before permitting the members to consider propensity evidence under Mil. R. Evid. 413, and by giving an erroneously tailored spillover instruction regarding the proper use of propensity evidence.
II. Whether the military judge erred in denying the defense motion to compel an expert consultant.

This week at the AFCCA: The Air Force CCA’s website shows 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 will hear oral argument in one case this week, on Wednesday, December 10, 2014, at 10 a.m.:

United States v. Oakley

Case summary: At the appellant’s retrial, a panel of members with enlisted representation, sitting as a general court-martial, convicted the appellant, contrary to his pleas, of one specification of aggravated sexual assault and one specification of committing an indecent act, in violation of Article 120, UCMJ, 10 U.S.C. § 920 (2008). The members sentenced the appellant to five years’ confinement, total forfeiture of pay and allowances, reduction to paygrade E-1, and a dishonorable discharge. Due to the limitations required by the appellant’s sentence at his previous court-martial, the convening authority approved only so much of the sentence as provided for confinement for three months, total forfeiture of pay and allowances, reduction to paygrade E-1, and a bad-conduct discharge.

Issue: Did the military judge’s findings of not guilty to the words “on divers occasions” in the first trial create an ambiguous verdict and a double jeopardy violation that precludes this court’s review of specifications 1 and 2 under Article 66, UCMJ?

We mentioned the NMCCA’s decision reversing the original conviction in this post.

An alert reader points out that last year’s Rolling Stone piece, The Rape of Petty Officer Blumer, was also authored by Sabrina Erdely.  All the controversy about Ms. Erdely’s adherence to journalistic standards in her piece about a rape at a UVa fraternity house, see here (WaPo) and here (Rolling Stone statement), makes one wonder if there are people digging into the facts of the PO Blumer piece. I have no idea, but it is too bad that journalistic lapses are hurting the larger message.

Here is an AP article on the status of US forces in Iraq.  AP reports:

Washington has an agreement with Baghdad on privileges and immunities for the growing number of troops based in Iraq who are helping in the fight against the Islamic State group, the new U.S. ambassador said Thursday. In an exclusive interview with The Associated Press, Stuart Jones said Prime Minister Haider al-Abadi has given assurances that U.S. troops will receive immunity from prosecution. Under Iraq’s former Prime Minister Nouri al-Maliki, that issue was a major sticking point, ultimately leading to the decision to withdraw all remaining U.S. troops in late 2011.

No word on that status of contractors supporting those forces or if “US forces” includes civilians supporting uniformed forces, who are fully subject to Iraq law after the expiration of the US-Iraq SOFA.

H/t PC