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: The next scheduled oral argument at CAAF is on December 3, 2019.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on November 21, 2019.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

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

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on November 20, 2019.

On Tuesday CAAF granted review in this Army case:

No. 19-0365/AR. U.S. v. Jason A. Scott. CCA 20170242. 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 granted on the following issue:

WHETHER THE APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE SIXTH AMENDMENT OF THE CONSTITUTION.

Briefs will be filed under Rule 25.

A decision issued by the CCA in 2018 (discussed after the jump) is available here.

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

United States v. Davis, No. 19-0104/AR (CAAFlog case page): Oral argument audio (wma)(mp3)

United States v. Turner, No. 19-0158/AR (CAAFlog case page): Oral argument audio (wma)(mp3)

The audio is also available on our oral argument audio podcast.

In 2009, then-Private First Class Bergdahl walked away from his combat outpost in Patika Province, Afghanistan. He was captured by the Taliban and held in captivity for nearly five years. He was recovered in a May 2014 trade for five Guantanamo Bay detainees. Ten months later he was charged with desertion with the intent to shirk important service and avoid hazardous duty in violation of Article 85(a)(2), and with misbehavior before the enemy in violation of Article 99.

Bergdahl eventually pleaded guilty to both offenses without a pretrial agreement. In sentencing his defense counsel specifically requested that the military judge sentence him to a dishonorable discharge, and Bergdahl made it clear that he personally believed that a dishonorable discharge was the appropriate punishment. The military judge gave him that and little more, adjudging a sentence of reduction to E-1, forfeiture of $1,000 pay per month for 10 months, and a dishonorable discharge. The convening authority approved the sentence after Bergdahl elected to not request clemency.

Nevertheless, having pleaded guilty, requested a dishonorable discharge, made clear that a dishonorable discharge was appropriate, and not requested clemency, on appeal Bergdahl claimed that endemic unlawful command influence (UCI) denied him a fair trial, fair post-trial processing, or the appearance thereof, and sought dismissal of the charges. The Army CCA rejected the claim and affirmed the findings and sentence in a published decision discussed here. Bergdahl then petitioned CAAF for review (discussed here).

Yesterday, CAAF granted that review:

No. 19-0406/AR. U.S. v. Robert B. Bergdahl. CCA 20170582. 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 granted on the following issue:

WHETHER THE CHARGES AND SPECIFICATIONS SHOULD BE DISMISSED WITH PREJUDICE OR OTHER MEANINGFUL RELIEF GRANTED BECAUSE OF APPARENT UNLAWFUL COMMAND INFLUENCE.

Briefs will be filed under Rule 25.

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

United States v. Jessie, No. 19-0192/AR (CAAFlog case page): Oral argument audio (wma)(mp3)

United States v. Muller, No. 19-0230/AF (CAAFlog case page): Oral argument audio (wma)(mp3)

The audio is also available on our oral argument audio podcast.

The Judge Advocates Association (JAA) annual Jobs for JAGs program will occur on Thursday, December 5, 2019, at Jenner & Block, 1099 New York Avenue NW, Suite 900, Washington, DC  20001.

Click here for additional details and registration information.

Updates will be posted on the JAA’s Facebook and LinkedIn pages, at the following links:

https://www.facebook.com/JudgeAdvocatesAssociationJAA/

https://www.linkedin.com/groups/4458285

Last week CAAF granted review in this Marine Corps case:

No. 19-0377/MC. U.S. v. Nicholas S. Baas. CCA 201700318. 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 granted on the following issues:

I. DID ADMISSION OF AN ALLEGEDLY POSITIVE DIATHERIX LABORATORIES TEST FOR GONORRHEA WITHOUT TESTIMONY AT TRIAL OF AN WITNESS FROM DIATHERIX, VIOLATE THE SIXTH AMENDMENT CONFRONTATION CLAUSE?

II. DID THE LOWER COURT ABUSE ITS DISCRETION IN ADMITTING AN ALLEGED POSITIVE DIATHERIX TEST RESULT FOR GONORRHEA IN A CHILD’S RECTAL SWAB-WHERE DIATHRIX FAILED TO FOLLOW ITS OWN PROCEDURES AND THE RESULT WAS OF NEAR ZERO PROBATIVE VALUE?

Briefs will be filed under Rule 25.

The CCA’s opinion is available here.

The appellant was convicted of numerous offenses including rape of a child. The evidence supporting the rape conviction included a positive test of the child for gonorrhea; a sexually-transmitted disease that the appellant told military law enforcement he had and that he encouraged them to test the child for in the belief that the test would exonerate him. Swabs were taken from the child and sent to Diatherix Laboratories, where a nucleic acid amplification test (NAAT) revealed the positive result. But the pediatrician who took the swabs explained that the NAAT was a screening test that was susceptible to false positives, and that urethral and rectal culture tests should be performed to confirm the diagnosis.

Those confirmatory tests were not performed. Rather, the child was treated with antibiotics, rendering further testing impossible. Nevertheless, the prosecution moved to introduce the NAAT result, and the parties litigated its admissibility. The military judge ultimately ruled that the result was admissible because the test was reliable and it was for the members to determine what weight to give the result.

The CCA considered and rejected the first granted issue, concluding that the Diatherix lab report was nontestimonial (and so could be admitted as business records) because the test was conducted primarily for treatment (not law enforcement), the report contained only unambiguous factual matters, and the report was not primarily created for the purpose of introducing it as evidence at trial.

The CCA’s opinion also references the underlying claim in the second granted issue – that the Diatherix laboratory failed to follow its own procedures – in a larger analysis of the military judge’s ruling that admitted the test result. The CCA affirmed the military judge’s ruling admitting the result.

This week at SCOTUS: On Oct. 28 a new cert. petition was filed in McDonald v. United States, No. 19-557. The petition is available here. In United States v. McDonald, 78 M.J. 376 (C.A.A.F. Apr. 17, 2019) (CAAFlog case page), a unanimous CAAF held that the mens rea (mental state) for the offense of sexual assault by causing bodily harm in violation of Article 120(b)(1)(B) (2012), where the bodily harm is a nonconsensual sexual act, is only the general intent to commit the sexual act, because “the burden is on the actor to obtain consent, rather than the victim to manifest a lack of consent.”

The question presented in the McDonald cert. petition is:

Whether Congress’s omission of a mens reafor the offense of sexual assault by bodily harm means mere negligence as to the lack of consent suffices.

The Solicitor General waived the right to respond on Nov. 1.

In other news, the cert. petition in Hutchins was distributed for conference on Nov. 15. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking six cases:

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

Tuesday, November 5, 2019, at 9:30 a.m.

United States v. Jessie, No. 19-0192/AR (CAAFlog case page)

Issues:
I. Whether the Army court erred by considering military confinement policies but refusing to consider specific evidence of Appellant’s confinement conditions.

II. Whether the Army court conducted a valid Article 66 review when it failed to consider Appellant’s constitutional claims.

III. Whether Appellant’s constitutional rights were violated by a confinement facility policy that barred him from all forms of communication with his minor children without an individualized assessment demonstrating that an absolute bar was necessary.

Case Links:
ACCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

Followed by:

United States v. Muller, No. 19-0230/AF (CAAFlog case page)

Issues:
I. Whether rule 15.5 of the Air Force Court of Criminal Appeals Rules of Practice and Procedure is invalid because it conflicts with the Uniform Code of Military Justice, this Court’s precedent, the Joint Courts of Criminal Appeals Rules of Practice and Procedure, the recently updated Joint Rules of Appellate Procedure, and the prior and current appellate rules of the other service Courts of Criminal Appeals.

II. Whether the Air Force Court of Criminal Appeals deprived Appellant of his due process right to raise issues on appeal when it denied his timely request to file a supplemental brief on issues arising during remand proceedings.

III. Whether a Court of Criminal Appeals must require certificates of correction to be accomplished, vice accepting documents via a motion to attach, when it finds a record of trial to be incomplete due to a missing exhibit.

Case Links:
AFCCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Appellant’s reply brief
Amicus brief: Navy-Marine Corps Appellate Defense in support of Appellant
Blog post: Argument preview

Wednesday, November 6, 2019, at 9 a.m.

United States v. Davis, No. 19-0104/AR (CAAFlog case page)

Issue: Whether the mens rea of “knowingly” applies to the consent element of Article 120c(a)(2), Uniform Code of Military Justice, 10 U.S.C. § 920c(2) (2016).

Case Links:
ACCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Blog post: Argument preview

Followed by:

United States v. Turner, No. 19-0158/AR (CAAFlog case page)

Issue: Whether the specification of Charge I alleging an attempted killing fails to state an offense because it does not explicitly, or by necessary implication, allege the attempted killing was unlawful.

Case Links:
ACCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) 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 November 21, 2019.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

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

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on November 20, 2019.

CAAF will hear oral argument in the Army case of United States v. Turner, No. 19-0158/AR (CAAFlog case page), on Wednesday, November 6, 2019, after the argument in Davis. The court granted review of a single issue:

Whether the specification of Charge I alleging an attempted killing fails to state an offense because it does not explicitly, or by necessary implication, allege the attempted killing was unlawful.

Specialist (E-4) Turner was convicted of attempted murder (the specification at issue), conspiracy to commit premeditated murder, maiming, and obstruction of justice, and sentenced to confinement for life without the possibility of parole, reduction to E-1, total forfeitures, and a dishonorable discharge. The Army CCA reversed the obstruction conviction (as factually insufficient) and conditionally dismissed the maiming charge, but affirmed the other findings and affirmed the sentence.

The specification of attempted murder alleged:

In that, Specialist Malcolm R. Turner, U.S. Army, did, at or near Clarksville, Tennessee, on or about 1 January 2015, attempt to kill with premeditation Specialist [C.SG.] by means of shooting her with a loaded firearm, causing grievous bodily injury.

App. Br. at 3 (quoting record) (emphasis omitted) (modification in original). Turner’s defense counsel objected to the specification at trial, asserting that the specification failed to actually state the offense of attempted murder because it did not allege that the attempted killing was unlawful (a necessary element of murder). The military judge overruled the objection and Turner renewed it on appeal, where the Army CCA held that the specification “alleges words of criminality sufficient to inform appellant that he was charged with the offense of attempted premeditated murder,” while observing that “not since the Civil War has Clarksville, Tennessee been close to a combat zone where appellant might claim that an attempted premeditated killing of a fellow American soldier could have been lawful.” United States v. Turner, No. 20160131, slip op. at 15-16 (A. Ct. Crim. App. Nov. 30, 2018). CAAF then granted review.

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CAAF will hear oral argument in the Army case of United States v. Davis, No. 19-0104/AR (CAAFlog case page), on Wednesday, November 6, 2019, at 9 a.m. CAAF granted review of one issue after the Supreme Court decided United States v. Rehaif, 139 S. Ct. 2191, 2196 (2019), and held that the word knowingly in 18 U.S.C. §924(a)(2) – which states the punishment for unlawful possession of a firearm in violation of other statutes – applies to the material elements of the other statutes:

Whether the mens rea of “knowingly” applies to the consent element of Article 120c(a)(2), Uniform Code of Military Justice, 10 U.S.C. § 920c(2) (2016).

Article 120c(a)(2) – which took effect in 2012 and is unchanged in its current form – prohibits indecent recording. Indecent recording occurs when a person:

Knowingly photographs, videotapes, films, or records by any means the private area of another person, without that other person’s consent and under circumstances in which that other person has a reasonable expectation of privacy.

A reasonable expectation of privacy is defined as a reasonable belief that one’s naked or underwear-clad genitalia, anus, buttocks, or female areola or nipple would not be recorded or visible to the public. See Article 120c(d).

Private (E-2) Davis was convicted of indecent recording for making a video of part of a sexual encounter involving himself and two other soldiers. The video showed Davis having sexual intercourse with one of the soldiers (who later alleged that the encounter was a sexual assault; Davis was acquitted of charges related to that claim). The findings were made by a panel of officer members, and the military judge instructed the members that the offense has four elements, including that Davis knowingly recorded the alleged victim and that the recording was without the consent of the alleged victim. The military judge did not instruct the members that Davis must have known that the alleged victim did not consent to the recording, but did instruct them that it was a defense if Davis has a reasonable mistake of fact belief that she consented.

Mens rea was the #8 Military Justice Story of 2017 because of a series of CAAF decisions involving the mental state required to violate the UCMJ. Davis may be another in that series.

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CAAF will hear oral argument in the Air Force case of United States v. Muller, No. 19-0230/AF (CAAFlog case page), on Tuesday, November 5, 2019, after the argument in Jessie. The court granted review of three issues involving the CCA’s review of a case that was returned to the convening authority because a prosecution exhibit was missing from the record of trial:

I. Whether rule 15.5 of the Air Force Court of Criminal Appeals Rules of Practice and Procedure is invalid because it conflicts with the Uniform Code of Military Justice, this Court’s precedent, the Joint Courts of Criminal Appeals Rules of Practice and Procedure, the recently updated Joint Rules of Appellate Procedure, and the prior and current appellate rules of the other service Courts of Criminal Appeals.

II. Whether the Air Force Court of Criminal Appeals deprived Appellant of his due process right to raise issues on appeal when it denied his timely request to file a supplemental brief on issues arising during remand proceedings.

III. Whether a Court of Criminal Appeals must require certificates of correction to be accomplished, vice accepting documents via a motion to attach, when it finds a record of trial to be incomplete due to a missing exhibit.

Airman First Class (E-3) Muller pleaded guilty to three specifications of violating Article 112a, and was sentenced to confinement for nine months, reduction to E-1, and a bad-conduct discharge. The convening authority approved the sentence as adjudged, and Muller’s detailed appellate defense counsel submitted the case to the Air Force CCA without any assignments of error. The CCA, however, found a problem: prosecution exhibit 7 (an enlisted performance report) was missing from the record of trial. The CCA ordered the Government Division to show cause why the CCA should not return the record to the convening authority for correction, and the Government Division responded by offering a document (purporting to be the missing exhibit) for attachment to the record. The CCA rejected the document and ordered the record returned to the convening authority for correction.

After some delays, the convening authority ordered the military judge to complete a certificate of correction for the missing exhibit. A certificate of correction is a document used to correct a record of trial after authentication of the record by the military judge. See Article 54 (pre-2019); R.C.M. 1104(d), Manual for Courts-Martial (2016 ed.). The authentication process was changed to a certification process in the Military Justice Act of 2016 and the 2019 edition of the Manual for Courts-Martial. See Article 54 (2019); R.C.M. 1112(d), Manual for Courts-Martial (2019 ed.). The new process, however, retains the ability of a military judge to correct a record of trial.

The certificate of correction in Muller was completed and the record was returned to the CCA and the case re-docketed. At that point Muller’s appellate defense counsel sought to file a brief raising two assignments of error; one claiming unlawful command influence in the certificate of correction process and the other asserting unreasonable post-trial delay. The Air Force CCA rejected the brief and summarily affirmed the findings and sentence, and then it denied Muller’s request for reconsideration.

CAAF will review whether the CCA was wrong to reject Muller’s brief and – in an issue apparently raised by the Government Division and that CAAF granted review of without requiring certification by the Judge Advocate General – whether the CCA could have simply attached the missing exhibit to the record without returning it to the convening authority for correction.

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CAAF will hear oral argument in the Army case of United States v. Jessie, No. 19-0192/AR (CAAFlog case page), on Tuesday, November 5, 2019, at 9:30 a.m. The court granted review of three issues involving a policy (since rescinded) of the Joint Regional Confinement Facility (JRCF) at Fort Leavenworth, Kansas, whereby prisoners convicted of child sex offenses were prohibited from having any contact with children, including their own biological children:

I. Whether the Army court erred by considering military confinement policies but refusing to consider specific evidence of Appellant’s confinement conditions.

II. Whether the Army court conducted a valid Article 66 review when it failed to consider Appellant’s constitutional claims.

III. Whether Appellant’s constitutional rights were violated by a confinement facility policy that barred him from all forms of communication with his minor children without an individualized assessment demonstrating that an absolute bar was necessary.

Chief Warrant Officer (CW2) Jessie was convicted contrary to his pleas of not guilty, by a general court-martial composed of members, of two specifications of sexual assault of a child in violation of Article 120b, and was sentenced to confinement for four years, a reprimand, and to be dismissed. The Army CCA affirmed the findings and sentence in an unpublished en banc opinion, available here.

In that opinion, the CCA discussed Jessie’s complaint about a confinement policy that prohibited him from having any contact with children, including his own biological children. The CCA held that it could consider the complaint, but it declined to do so observing, in part:

[A]ppellant’s claim inevitably involves determining the outer limits of what is an acceptable prison policy for familial contact by convicted child sex offenders. That we might consider the claim does not mean we should. This is a claim we are poorly positioned to consider, and that within the structure of the military justice system is better entrusted to a determination by persons other than this Article I court.

United States v. Jessie, No. 20160187, slip op. at 10 (A. Ct. Crim. App. Dec. 28, 2018). CAAF then granted review.

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This page on CAAF’s website announces the 2020 Continuing Legal Education and Training Program:

2020 Continuing Legal Education
and Training Program
March 11 – 12, 2020

American University Washington College of Law
Claudio Grossman Hall
4300 Nebraska Avenue, N.W.
Washington, D.C. 20016

This week at SCOTUS: The cert. petitions in Briggs and Collins have been distributed for conference on Nov. 8. Additionally, the Solicitor General filed this reply brief in Collins. The Solicitor General also waived the right to respond to the cert. petition in Hutchins.

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 arguments at CAAF are on November 5, 2019.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on November 21, 2019.

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Da Silva, No. 39599, on Wednesday, October 30, 2019, at 10 a.m. No additional information is available on the CCA’s website.

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

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on November 20, 2019.

Last term, in Hasan v. U.S. Army Court of Criminal Appeals, and United States, No. 19-0054/AR (CAAFlog case page), Major Hasan – the Fort Hood shooter and one of four current residents of the military’s death row – asked CAAF to grant him a writ of mandamus ordering all of the judges of the Army CCA to recuse themselves from his case.

The asserted basis for the mass recusal was that the Deputy Judge Advocate General of the Army (DJAG), Major General Risch, who evaluates the Chief Judge of the Army CCA, had previous involvement in the case as the Fort Hood SJA. CAAF heard oral argument on the petition on March 27, 2019, and then summarily denied it six days later, on April 2, ruling:

In this case, Petitioner has failed to demonstrate that he cannot obtain relief through alternative means. He may still make an administrative request to remedy the alleged source of bias, and of course, he is entitled to raise this issue in the ordinary course of appellate review. Further, Petitioner has failed to demonstrate a clear and indisputable right to the writ as the harm he asserts is entirely speculative at this stage of the proceedings. Therefore, we decline to exercise our authority under the [All Writs Act].

Two weeks ago Hasan filed two new writ petitions, and yesterday CAAF granted one in part, disqualifying one ACCA judge from the case:

No. 20-0009/AR. Nidal M. Hasan v. ACCA. CCA 20130781. On consideration of the petition for extraordinary relief (recusal of judges), it is ordered that the petition is granted as to Judge Walker and denied as to Judge Brookhart without prejudice to Petitioner’s right to raise the matters asserted in the normal course of appellate review.

No. 20-0010/AR. Nidal M. Hasan v. ACCA. CCA 20130781. On consideration of the petition for extraordinary relief (appointment of a chief judge), it is ordered that the petition is denied without prejudice to Petitioner’s right to raise the matters asserted in the normal course of appellate review.