This week at SCOTUS: The Court denied the cert petition in Daniel v. United States, No. 14-621. I’m not aware of any other military justice developments at the Supreme Court, where I am now tracking no cases.

This week at CAAF: The next scheduled oral argument at CAAF is on Tuesday, January 27, 2015.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on January 26, 2015.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on January 30, 2015.

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

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

This is the second post in what I hope will be a weekly series about scholarly articles of interest to military justice practitioners. Please send any tips or suggested topics to zack@caaflog.com

In an article published in the Air Force publication The Reporter (available here), retired Colonel James Young (who is currently the Senior Legal Advisor to CAAF’s Judge Stucky) offers ten recommendations to reform court-martial procedure. They are:

1. Remove authority from the convening authority to select court members, approve the findings and sentence, grant clemency, and preside over vacation proceedings.
2. Eliminate summary courts-martial and grant field grade officers authority to impose confinement for 30 days as a nonjudicial punishment under Article 15.
3. Establish standing courts.
4. Modify special courts-martial to judge alone trials.
5. Except in capital cases, require sentencing by the military judge. The military judge should be required to impose any sentence agreed to by both the convening authority and the accused.
6. Require the service Secretaries to establish a system for randomly selecting court members.
7. Require all counsel to be qualified and certified under Article 27(b).
8. Modify the military appellate court system by: (1) granting all accused convicted of an offense at a general or special court-martial the right to appeal to an appellate court; (2) eliminating the service Courts of Criminal Appeals; (3) changing the Court of Appeals for the Armed Forces from a discretionary appellate court sitting en banc to a court comprised of panels of three judges, operating in a manner similar to the U.S. circuit courts of appeals; and (4) removing restrictions from appeals to the Supreme Court.
9. Require a verbatim record for every court-martial conviction.
10. Consolidate the government appellate divisions so that when counsel purports to speak for the United States, it does so with one voice.

Each suggestion is accompanied by a brief discussion.

CAAF’s daily journal for January 15, 2015 (yesterday) shows a new grant:

No. 14-0685/AF. U.S. v. Wilber J. McIntosh, Jr. CCA 37977. 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 APPELLANT RECEIVED INEFFECTIVE ASSISTANCE WHEN DEFENSE COUNSEL FAILED TO INTRODUCE EVIDENCE WHICH STRONGLY CORROBORATED THE DEFENSE THEORY THAT THE ALLEGATIONS IN THIS CASE WERE FALSE.

Briefs will be filed under Rule 25.

The AFCCA heard oral argument in this case (audio available here). It considered and rejected the issue granted review by CAAF in an unpublished opinion available here. It also denied a petition for reconsideration en banc (order available here).

The daily journal also shows this order in the certified Air Force case of United States v. Bowser, No. 15-0289/AF (CAAFlog case page), our #10 military justice story of 2014:

No. 15-0289/AF. U.S., Appellant v. Roy A. Bowser, Appellee. CCA 2014-08. On consideration of the certificate for review and Appellant’s brief in support of the certified issues, dated January 5, 2015, under C.A.A.F. R. 15(a), and MODEL RULES OF PROF’L CONDUCT R. 3.3(a)(2) adopted therein, we find they fail to address United States v. Vargas, 74 M.J. 1 (C.A.A.F. 2014), and United States v. Browers, 20 M.J. 356 (C.M.A. 1985) as possible controlling or adverse authority. Appellate courts can and should require re-briefing to address deficiencies. See Passmore v. Estell, 607 F.2d 662, 664 (5th Cir. 1979), cert. denied, 446 U.S. 937 (1980). Accordingly, it is ordered that, within 10 days of the date of this Order, Appellant will file an amended brief addressing the deficiency noted. No extensions of time will be granted.

Appellee’s brief, currently due on January 26, 2015, will instead be filed within 10 days of the filing of Appellant’s amended brief. Any reply brief by Appellant will be filed within 5 days of the filing of Appellee’s brief.

Wow.

Notably, this order comes exactly one day before the one year anniversary of CAAF’s January 16, 2014, order that rejected the Government’s initial brief in United States v. Janssen, 73 M.J. 221 (C.A.A.F. 2014) (CAAFlog case page).

The Air Force CCA has issued a published en banc decision in the interlocutory case of United States v. Wright, __ M.J. __, No. 2014-10 (A.F. Ct. Crim. App. Jan. 13, 2015) (link to slip op.).

The opinion appears to be jointly authored by Senior Judge Hecker and Judge Weber.

We’ve covered the Wright case sporadically (I summarized our past coverage in this post). It is a sexual assault case that was dismissed last year by Air Force Lieutenant General Craig Franklin. After General Franklin dismissed the charges, authority over the case was transferred to Air Force District of Washington in Maryland, new charges were preferred, a second Article 32 pretrial investigation was conducted, and the charges were referred to trial. Litigation of defense claims of unlawful command influence followed, and the trial judge eventually abated the proceedings after the Government asserted an attorney-client privilege over documents sought by the defense in connection with those claims.

The CCA’s opinion provides additional facts that I haven’t seen in print anywhere else:

Read more »

The 2015 meeting of the Code Committee will occur on Tuesday, March 3, 2015, at 10:00 a.m., at CAAF (notice here). As with the past two years (discussed here (2014) and here (2013)), I plan to attend and post notes.

CAAF’s annual Continuing Legal Education and Training Program is scheduled for May 19-20, 2015, at Georgetown University Law Center, 600 New Jersey Avenue, NW, Washington, DC (notice here). Last year’s program was fantastic.

As I noted in my write-up on the number four story in our top ten list for 2014, the NMCCA recently set aside another sentence in a case from Parris Island, based on the military judge’s PME to law student interns. The accused in United States v. Arnold, No. 201200382 (N-M.C.C.A. Dec. 23 2014) was convicted, pursuant to his pleas, of larceny, providing false information to a police officer, driving with a suspended license, stealing a license plate, counterfeiting currency, and altering a base decal, all in violation of Articles 121 and 134, UCMJ.

The appellant was sentenced to 12 months confinement, forfeiture of $950.00 pay per month for 12 months, reduction to E-1 and a bad conduct discharge. The convening authority approved the sentence as adjudged, but suspended all confinement in excess of 30 days pursuant to a pretrial agreement. This sentencing occurred approximately four weeks prior to the military judge’s PME to Marine law students at Parris Island. In his original assignment of error, the appellant alleged the military judge was disqualified because he showed an inflexible attitude about sentencing and allowed his perceptions about the expectations of the Commandant of the Marine Corps and Congress to enter his deliberations. The NMCCA affirmed the findings and sentence as approved; however, the case was remanded by CAAF following its decision in United States v. Kish.

Read more »

CAAF decided the Army case of United States v. Piren, __ M.J. __, No. 14-0453/AR (CAAFlog case page) (link to slip op.), on Thursday, January 15, 2015. The court finds that the military judge did not abuse her discretion when she overruled the Defense objection to the scope of the Government’s cross-examination of Appellant, or when she denied the Defense motion to suppress the results of a DNA analysis, affirming the decision of the Army CCA and Appellant’s conviction.

Judge Erdmann writes for a unanimous court.

CAAF granted review of two issues:

I. Whether the military judge abused her discretion by overruling the defense counsel’s scope objection during the Government’s cross-examination of Appellant.

II. Whether the military judge erred by denying the motion to suppress results of the DNA analysis.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of abusive sexual contact in violation of Article 120. He was acquitted of a specification of aggravated sexual assault in connection with the same incident. He was sentenced to confinement for 12 months, total forfeitures, reduction to E-1, and a bad-conduct discharge. The Army CCA summarily affirmed without issuing a written opinion.

After the sexual assault allegation was made against Appellant, Appellant made statements to a sexual assault nurse examiner named Lieutenant Colonel (LTC) Alumbaugh who did not advise him of his right to remain silent. Appellant also consented to a forensic sexual assault examination that included taking samples for DNA analysis. The Government did not oppose a defense motion to suppress the un-warned statements to LTC Alumbaugh, but it did oppose a defense motion to suppress the results of the DNA analysis. The military judge suppressed the statements but admitted the DNA results. However, despite the suppression, the statements were still available for the purpose of impeachment by contradiction. See M.R.E. 304(b)(1) (2012), replaced by M.R.E. 304(e)(1) (2013).

Appellant then testified in his own defense, deliberately avoiding any testimony about his statements to LTC Alumbaugh. But on cross-examination the prosecution questioned Appellant about the statements he made to LTC Alumbaugh. The prosecution then recalled LTC Alumbaugh to impeach Appellant’s testimony about those same statements. Specifically, she denied that Appellant told her four thing about the sexual encounter at issue that Appellant testified (on cross-examination) that he did tell her.

Read more »

I’ve updated our Microsoft Word version of the UCMJ to incorporate the changes from the FY15 NDAA.

Did anyone catch the PBS Newshour piece on “How military sex offenders fly under the radar after returning to civilian life“?  Discusses the disconnect between sex offender registries and court-martialed sex offenders.

The murder trial at Ramstein is underway.  Wednesday featured a videotaped confession by the accused, Air Force Staff Sergeant Sean Oliver, according to Stars and Stripes, here. Oliver is charged with the murder of Navy Petty Officer Dmitry Chepusov.  The “four hours of video [was] recorded during an interview of Oliver by Air Force special agents at Ramstein Air Base in late December 2013. The interview was conducted five days after German police pulled Oliver over during a traffic stop and found Chepusov dead in his car’s passenger seat.”

Fat Leonard (aka Leonard Francis), the head of Singapore based logistics firm Glenn Defense Marine Asia who ensnared several officers in a bribery scandal, will plead guilty today before a US Magistrate in San Diego, here (San Diego Union-tribune).

A human interest piece on the Navy Victim’s Legal Counsel program from S&S here.

Reps. Duncan Hunter, R-Calif.; Ryan Zinke, R-Mont.; and Matt Salmon, R-Ariz., have taken an interest in the convening authority action in 1stLt Clint Lorance’s case here (Army times).  Lorance was convicted and sentenced by a court-martial in August 2013 to 20 years in prison for ordering his platoon to open fire on two Afghan men in July 2012. Prosecutors contended that the officer violated ROE and that the men had not demonstrated hostile intent. New evidence included in a clemency petition to the CG of the 82nd Airborne deals with the status of the two men that were shot as potential insurgents/jihadists.  Prior coverage here and here.  Now if other members of Congress have their way, will this portion of the system even be available?

Five more Gitmo detainees were released the Pentagon announced on Wednesday, USA Today report here.  The report states that, “All five were captured in Pakistan and detained by the U.S. as suspected al-Qaeda fighters. U.S. officials determined it was no longer necessary to detain them but decided they couldn’t be sent to Yemen because of instability there.”

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

United States v. Norman, No. 14-0524/MC (CAAFlog case page): Oral argument audio.

United States v. Adams, 14-0495/AR (CAAFlog case page): Oral argument audio.

In an order dated today, CAAF summarily reverses the Army CCA’s decision in United States v. Endsley, 73 M.J. 909 (A. Ct. Crim. App. Oct. 17, 2014), that affirmed the appellant’s pleas of guilty to larceny from a fellow soldier based upon the appellant’s unauthorized use of that other soldier’s debit card.

I wrote about Endsley in this post titled: The Army CCA applies Cimball Sharpton to (erroneously) affirm larceny from a debit card holder. In that post I concluded that the appellant’s offense was a larceny by false pretenses from the merchants where he used the debit card and not a larceny from the other soldier, that the guilty plea was improvident, and that the CCA’s decision should be reversed.

CAAF agrees:

On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, and in light of United States v. Lubasky, 68 M.J. 260 (C.A.A.F. 2010), we note that the proper victims in the Specification of the Charge were the merchants who provided the goods upon false pretenses, not the debit cardholder/Soldier. However, the charge sheet, stipulation of fact, and the providence inquiry focused on the Soldier as the victim, and there was no discussion on the record of whether the merchants were victimized. See Lubasky, 68 M.J. at 263. Accordingly, it is, by the Court, this 14th day of January, 2015, ORDERED:

That said petition is granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY ACCEPTING APPELLANT’S PLEA OF GUILTY TO LARCENY OF THE PROPERTY OF SPECIALIST DT WHEN THE ALLEGED LARCENIES INVOLVED THE UNAUTHORIZED USE OF SPECIALIST DT’S DEBIT CARD NUMBER TO OBTAIN THE RETAIL GOODS OF A MERCHANT BY FALSE PRETENSE.

The decision of the United States Army Court of Criminal Appeals is reversed as to the Charge and its Specification and the sentence. The findings of guilty as to the Charge and its Specification are set aside. The remaining findings are affirmed. The record is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals. That court may either dismiss the Charge and its specification and reassess the sentence based on the affirmed findings, or it may order a rehearing on the affected charge and specification and the sentence.

74 M.J. __ (C.A.A.F. Jan. 14, 2015) (emphasis added).

Notably, I had a similar disagreement with the Army CCA’s unpublished decision in United States v. Conway, No. 20120708 (A. Ct. Crim. App. Nov. 21, 2014) (discussed here). I’ll be watching to see what CAAF does in that case.

The completeness of a member’s response to questions during voir dire is the central issue in United States v. Robinson, No. 20120993 (A. Ct. Crim. App. Dec. 23, 2014) (link to slip op.).

The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of one specification of aggravated sexual assault and two specifications of adultery, in violation of Articles 120 and 134. The sexual assault conviction involved an allegation that the appellant used force to engage in sexual activity with another soldier.

Chief Warrant Officer 4 (CW4) DD was a member of the panel for the appellant’s trial. During voir dire, CW4 DD denied that anyone in his family had been the victim of an offense similar to the allegations against the appellant, and he denied knowledge of “anything that might raise a substantial question concerning whether [he] should participate as a court-martial member.” Slip op. at 3. Neither side challenged the inclusion of CW4 DD as a member of the panel.

After the appellant’s trial, CW4 DD served as a member in another court-martial also involving a sexual assault allegation. In that case, “CW4 DD revealed that his daughter had been sexually assaulted when she was a young child.” Slip op. at 3. A post-trial hearing was held in the appellant’s case to consider whether CW4 DD should have been disqualified, during which CW4 DD explained that “he did not reveal this information when asked questions during voir dire in appellant’s case because at that time he thought the questions were tied to the charges in appellant’s case and he did not believe they were similar to what happened to his daughter.” Slip op. at 3. The military judge denied the appellant’s post-trial challenge of CW4 DD, finding that “CW4 DD testified convincingly on this matter that the incident involving his young daughter did not cross his mind when he was asked those questions because he knew he owed it to both parties to be fair and was sure that he could be.” Slip op. at 3.

The Army CCA affirms. Senior Judge Tozzi writes for a majority of a three-judge panel of the court, while Judge Celtnieks dissents.

Read more »

Here is the Army News Service’s take on the FY2015 NDAA Mil Jus changes. It is a tad better than the Military Times coverage we posted last week. The article includes observations from Lt. Col. John Kiel Jr., chief of policy branch, criminal law division, Office of the Judge Advocate General.

The Chairman of the Joint Chiefs of Staff said Commander US Forces Command is the potential convening authority in the Sergeant Bergdahl case, here (Military Times).  General Dempsey said he expects a decision of disciplinary action soon, but stayed away from any appearance of UCI by saying anything more. Bergdahl could face court-martial for allegedly leaving his post in Afghanistan before being captured and held by Taliban sympathizing militants from the Haqqani network.

I was just reminded that DoD’s Judicial Proceedings Panel (JPP) has a hearing this Friday, see here.  The Dec. 16, 2014 meeting of the JPP featured appearances by all the service judge advocates.  See speaker bios here and transcript here.  Colonel John Baker, a friend o’ the blog, appeared on behalf of Major General Ewers.

More on 1stLt Lorance’s quest for a new trial from Army Times, here.  Prior coverage here. Update:  Here is the latest RCM 1107 memorandum submitted by Lorance’s counsel, courtesy of his counsel.

A not guilty plea in the Staff Sergeant Sean Oliver murder trial in Germany, here (S&S).  Prior coverage here.

Writing for the majority of a three-judge panel in United States v. McCormick, __ M.J. __, No. 20120029 (A. Ct. Crim. App. Dec. 19, 2014) (link to slip op.), Chief Judge Pede finds that “appellant’s intent and the timing of that intent,” slip op. at 7, permit the court to affirm convictions for both being an accessory after the fact to attempted unpremeditated murder and for being a principle (by aiding and abetting) to aggravated assault related to the same attempted murder.

The facts are:

[A]ppellant was the driver (but not the shooter) in a drive-by-shooting targeting another occupied vehicle. As the driver, appellant aided and abetted the shooter, precipitating appellant’s convictions for aggravated assault. The shooter himself, however, ultimately fired thirteen rounds into the targeted vehicle, evidencing the shooter’s intent to commit murder. Appellant then drove away from the scene and helped cover up the shooting, arguably making appellant an accessory after the fact to the shooter’s attempted murder of the targeted vehicle’s occupants.

Slip op. at 5. For these actions the appellant was charged with attempted premeditated murder and with aggravated assault, both as a principle actor to the shooting by aiding and abetting the actual shooter, and also with accessory after the fact to attempted premeditated murder for helping to cover up the shooting. A general court-martial composed of a military judge alone acquitted the appellant of the attempted premeditated murder charge, but convicted him of the aggravated assault and accessory after the fact charges.

Read more »

Significant military justice event this week: The Judicial Proceedings Panel will hold a public meeting on Friday, January 16, 2015, at the U.S. District Court for the District of Columbia, 333 Constitution Avenue NW., Courtroom #20, 6th Floor, Washington, DC 20001. Additional details are available here.

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

• Daniel v. United States, No. 14-621 (SG waived resp.; pending conf. on Jan. 9) (pet. discussed here)

This week at CAAF: CAAF will hear oral argument in two cases this week, both on Wednesday, January 14, 2015:

United States v. Adams, 14-0495/AR (CAAFlog case page)

Issue: Whether the Army Court of Criminal Appeals erred in finding that the military judge did not abuse his discretion in admitting the portion of Appellant’s sworn statement regarding the [theft] of cocaine because the Government failed to corroborate, in accordance with Military Rule of Evidence 304(g), the essential fact that appellant took cocaine.

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

United States v. Norman, No. 14-0524/MC (CAAFlog case page)

Issue: Whether the conviction for child endangerment by culpable negligence is legally insufficient when the only testimony offered to prove its service discrediting nature was admitted in error.

Case Links:
• NMCCA opinion
• Appellant’s brief
• Appelleee’s (Government) brief
• Appellant’s reply brief
• Blog post: Argument preview

This week at the ACCA: The next scheduled oral argument at the Army CCA is on February 18, 2015.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on January 30, 2015.

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

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