CAAF decided the Coast Guard case of United States v. Bailey, __ M.J. __, No. 17-0265/CG (CAAFlog case page) (link to slip op.), on November 29, 2017. Holding that the term incapable in the element of incapable of consenting has such a plain meaning that no instruction is required to define the term for members – and rejecting as inaccurate the instruction on the term’s meaning that was proposed by the defense at trial – CAAF nevertheless encourages military judges to continue to give the Benchbook definition of incapable of consenting added after CAAF’s decision in United States v. Pease, 75 M.J. 180 (C.A.A.F. 2016) (CAAFlog case page). But the court  finds ambiguity in the CCA’s action on the sentence, and so remands for clarification

Judge Ohlson writes for a unanimous court.

CAAF granted review of two issues:

I. Upon request by the defense counsel and using a defense-drafted instruction, should the military judge have provided the members with an explanation of the term “incapable.”

II. Whether the decision of the United States Coast Guard Court of Criminal Appeals is ambiguous as to whether the affirmed sentence included forfeiture of all pay and allowances.

A general court-martial composed of members with enlisted representation convicted Seaman (E-3) Bailey, contrary to his pleas of not guilty, of three specifications of sexual assault, one specification of abusive sexual contact, and one specification of assault consummated by a battery in violation of Articles 120 and 128. The panel sentenced Bailey to confinement for 18 months, total forfeitures, and a dishonorable discharge.

The charges arose out of an alcohol-fueled sexual encounter between Bailey and a 24-year-old woman. Bailey was alleged to have committed sexual acts and contacts with the women when she was incapable of consenting due to impairment by a drug, intoxicant, or other similar substance. See Article 120(b)(3)(A), 10 U.S.C. § 920(b)(3)(A). At trial, Bailey’s defense counsel asked the military judge to instruct the members that incapable of consenting means complete and total impairment, proposing the following language:

“Incapable” means a complete and total mental impairment and incapacity due to the consumption of alcohol, drugs, or similar substance; while asleep or unconscious; which rendered the alleged victim completely unable to appraise the nature of the sexual conduct at issue, completely unable to physically communicate unwillingness to engage in the sexual conduct at issue, or otherwise completely unable to communicate competent decisions.

Slip op. at 2. The prosecution opposed giving the instruction, the military judge did not give it, and Bailey was convicted.

The case was tried in 2014, before CAAF’s decision in United States v. Pease, 75 M.J. 180 (C.A.A.F. 2016) (CAAFlog case page). Judge Ohlson, who writes for the unanimous court in today’s opinion, also wrote for a unanimous court in Pease and found that the Navy-Marine Corps CCA properly defined the statutory term incapable of consenting. Since then military judges often give an instruction consistent with the definition from Pease. That instruction is available here (Benchbook interim update 16-02).

But today’s opinion find that no such instruction is required (though a footnote encourages military judge to continue to give it), because “‘incapable’ is not a technical legal or scientific term.” Slip op. at 6. As for the instruction requested by the defense in this case, Judge Ohlson explains that “it contains an inaccurate statement of law.” Slip op. at 4. Multiple inaccuracies, in fact.

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

United States v. Robinson, No. 17-0231/AR (CAAFlog case page): Oral argument audio.

United States v. Simpson, No. 17-0329/AR (CAAFlog case page): Oral argument audio.

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

United States v. Jerkins, No. 17-0203/AR (CAAFlog case page): Oral argument audio.

United States v. Acevedo, No. 17-0224/AR (CAAFlog case page): Oral argument audio.

CAAF will hear oral argument in the certified Army case of United States v. Simpson, No. 17-0329/AR (CAAFlog case page), on Wednesday, November 29, 2017, at 9:30 a.m., after the argument in RobinsonThe Judge Advocate General of the Army certified a single issue challenging the Army CCA’s reversal of Simpson’s conviction for larceny:

Whether the Army Court of Criminal Appeals erred by finding a substantial basis in law and fact to question Appellant’s plea in light of the Supreme Court decision in United States v. Shaw, 137 S.Ct. 462 (2016), and the Court of Appeals for the Armed Forces decision in United States v. Cimball-Sharpton, 73 M.J. 299 (C.A.A.F. 2014).

Sergeant (E-5) Simpson, in cahoots with his civilian girlfriend, initiated fraudulent electronic transfers from a corporate bank account used by Credit First National Association (CFNA). The account itself was held by JPMorgan Chase bank, and the frauds were accomplished by using the account’s information for electronic payments for Simpson’s bills.

Simpson’s frauds amounted to over $30,000. He ultimately pleaded guilty to one specification of larceny on divers occasions, and one specification of conspiracy to commit larceny, in violation of Articles 121 and 81, and was sentenced to confinement for two months, reduction to E-4, and a bad-conduct discharge.

On appeal, however, Simpson challenged his pleas on the basis that they identified CFNA as the victim when JPMorgan was the actual victim.

The Manual for Courts-Martial explains that:

Wrongfully engaging in a credit, debit, or electronic transaction to obtain goods or money is an obtaining-type larceny by false pretense. Such use to obtain goods is usually a larceny of those goods from the merchant offering them. Such use to obtain money or a negotiable instrument (e.g., withdrawing cash from an automated teller or a cash advance from a bank) is usually a larceny of money from the entity presenting the money or a negotiable instrument.

MCM, Part IV, ¶ 46.c.(1)(i)(vi). In recent years CAAF applied this understanding and the common law of larceny (on which Article 121 is based) to hold that using someone else’s debit card is larceny from either the financial institution operating the account or the merchants who accept the card, and not a larceny from the card account holder even though the account holder might suffer a consequence from the offense. United States v. Williams, 75 M.J. 129 (C.A.A.F. Feb. 23, 2016) (CAAFlog case page); United States v. Endsley, 74 M.J. 216 (C.A.A.F. Jan 14, 2015) (summ. disp.) (discussed here).

Simpson presents a practically-identical set of facts, except that the case involves electronic account information instead of an actual debit card.

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CAAF will hear oral argument in the Army case of United States v. Robinson, No. 17-0231/AR (CAAFlog case page), on Wednesday, November 29, 2017, at 9:30 a.m. The case challenges convictions 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 appellant was convicted by a general court-martial composed of members with enlisted representation, and was sentenced to reduction to E-1, total forfeitures, and a bad-conduct discharge (and no confinement).

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.

Specialist (E-4) Robinson attended a party at the off-base residence of another specialist. Many were in attendance, including other specialists and also junior enlisted soldiers. One of the other specialists was Specialist VM, who was drinking at the party but left because she felt uncomfortable as the only female present. Gov’t Div. Br. at 4. VM drove herself back to the barracks and while nobody stopped her from driving, one of the other partygoers followed her and then returned to the party and reported that she made it home safely. Gov’t Div. Br. at 5.

At trial VM testified that after returning to her barracks room she vomited, quickly washed, undressed, put a trash can next to her bed, and fell asleep. She testified that her next memory was of Robinson on top of her having sex with her. Her next memory after that was waking up later in the day.

Robinson testified in his own defense and told a different story. Well, he tried to. Citing Mil. R. Evid. 412, the military judge prohibited Robinson from testifying that he and VM had previously discussed having sex, prohibited Robinson’s defense counsel from calling other witnesses to testify about flirtatious activity they observed between VM and Robinson, prohibited Robinson’s defense counsel from asking VM about that prior flirtatious activity, and rejected a question from a member directed at a friend of both Robinson and VM that asked: “From what you know of SPC [VM], did she ever display interest towards SPC Robinson?” App. Br. at 8-9 (quoting record).

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CAAF will hear oral argument in the Army case of United States v. Acevedo, No. 17-0224/AR (CAAFlog case page), on Tuesday, November 28, 2017, after the argument in Jerkins, on a single issue:

Whether the evidence is legally insufficient to support a charge of kidnapping by inveiglement.

Staff Sergeant (E-6) Acevedo was convicted by a general court-martial composed of members with enlisted representation of kidnapping Private (E-2) AM in violation of Article 134. Acevedo was acquitted of other offenses, including offenses related to sexual acts with AM that occurred after the alleged kidnapping. The Army CCA affirmed the findings and sentence without issuing a written opinion.

The alleged kidnapping occurred after Acevedo, AM, and others were drinking at an off-base bar. AM was 19 years-old at the time, and she wanted to leave the bar with a civilian (who she eventually married). Acevedo and a Sergeant didn’t allow AM to leave the bar with the civilian. Instead, they insisted on calling a cab to take AM back to base. AM got into the cab, Acevedo followed, Acevedo gave the driver his address, and the cab took them to Acevedo’s apartment where Acevedo and AM had sex. The following morning Acevedo gave AM $20 to pay for a cab ride back to base and told her to keep the encounter secret. Later, when he was questioned by law enforcement, Acevedo falsely denied that AM went to his residence that night.

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CAAF will hear oral argument in the Army case of United States v. Jerkins, No. 17-0203/AR (CAAFlog case page), on Tuesday, November 28, 2017, at 9:30 a.m.

The appellant is an Army major (O-4) who was convicted of assault consumated by battery upon a child, in violation of Article 128, for hitting his three-year-old step-son with a belt. The members sentenced him to confinement for six months and a dismissal.

The defense called multiple witnesses during the sentencing phase of the court-martial to testify about Jerkins prior good service, including three colonels and two retired major generals. In rebuttal the prosecution offered into evidence a General Officer Memorandum of Reprimand (GOMOR) that was issued approximately two weeks before trial.

A GOMOR is an administrative reprimand that is ostensibly non-punitive and may be issued summarily by certain officials (reprimands are also authorized punishments under the UCMJ, but that requires formal proceedings). See Army Regulation 600-37 (available here). A GOMOR may – but need not necessarily – be filed in a soldier’s Official Military Personnel File, which is the permanent record of the soldier’s service. Under R.C.M. 1001(b)(2) the prosecution may then “obtain and introduce from the personnel records of the accused evidence of the . . . past military efficiency, conduct, performance, and history of the accused.”

The GOMOR issued to Jerkins reprimanded him for alleged fraternization with an enlisted soldier; specifically, Jerkins’ wife (at the time of trial), who was an active duty specialist (E-4) when they met and married, and who was voluntarily discharged before she gave birth to their child 11 months after the marriage. The GOMOR concluded:

You have failed to live up to the Army values and you have betrayed our trust. I have serious doubts regarding your ability for continued service in the United States Army . . .

App. Br. at 4.

The defense objected to admission of the GOMOR, the military judge overruled the objection, and the Army CCA issued an opinion that did not address the issue. CAAF then granted review to determine:

Whether the military judge abused her discretion by allowing a general officer memorandum of reprimand into sentencing evidence, where the reprimand was issued two weeks before the court-martial and contained highly prejudicial and misleading language.

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This week at SCOTUS: The Solicitor General received extensions of time to file responses to the cert. petitions in Bartee and Tso. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking eight cases:

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

Tuesday, November 28, 2017, at 9:30 a.m.:

United States v. Jerkins, No. 17-0203/AR (CAAFlog case page)

Issue: Whether the military judge abused her discretion by allowing a general officer memorandum of reprimand into sentencing evidence, where the reprimand was issued two weeks before the court-martial and contained highly prejudicial and misleading language.

Case Links:
• ACCA opinion
• Appellant’s brief
• Appellee’s (Army Gov’t App. Div.) answer
• Appellant’s reply brief

Followed by:

United States v. Acevedo, No. 17-0224/AR (CAAFlog case page)

Issue: Whether the evidence is legally insufficient to support a charge of kidnapping by inveiglement.

Note: The case is also an Ortiz trailer.

Case Links:
• ACCA opinion (summary disposition)
• Appellant’s brief
• Appellee’s (Army Gov’t App. Div.) answer
• Appellant’s reply brief

Wednesday, November 29, 2017, at 9:30 a.m.:

United States v. Robinson, No. 17-0231/AR (CAAFlog case page)

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.

Case Links:
• ACCA opinion (summary disposition)
• Appellant’s brief
• Appellee’s (Army Gov’t App. Div.) answer
• Appellant’s reply brief
Amicus brief (Protect Our Defenders) in support of Army Gov’t App. Div.

Followed by:

United States v. Simpson, No. 17-0329/AR (CAAFlog case page)

Certified Issue: Whether the Army Court of Criminal Appeals erred by finding a substantial basis in law and fact to question Appellant’s plea in light of the Supreme Court decision in United States v. Shaw, 137 S.Ct. 462 (2016), and the Court of Appeals for the Armed Forces decision in United States v. Cimball-Sharpton, 73 M.J. 299 (C.A.A.F. 2014).

Case Links:
• ACCA opinion
• Appellant’s (Army Gov’t App. Div.) brief
• Appellee’s answer
• Appellant’s reply brief

This week at the ACCA: The Army CCA’s website shows no scheduled oral arguments.

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 oral argument schedule shows no scheduled oral arguments at the CCA.

This week at the NMCCA: The Navy-Marine Corps CCA, sitting en banc, will hear oral argument in one case this week, on Tuesday, November 28, 2017, at 10 a.m.:

United States v. Christopher, NMCCA No. 201600249

Case summary:
A panel of officer and enlisted members sitting as a general court-martial convicted the appellant, contrary to his pleas, of three specifications of assault consummated by a battery upon a child in violation of Article 128, UCMJ, and one specification of indecent acts with a child in violation of Article 134, UCMJ. Members acquitted him of four specifications of assault consummated by a battery upon a child, and one specification of indecent acts with a child. The court-martial sentenced appellant to total forfeiture of all pay and allowances, six years confinement, and reduction to paygrade E-1.

In a post-trial 39(a) session, the MJ found the statute of limitations barred prosecution of two specifications of Charge I. The MJ dismissed those specifications and declared a mistrial as to sentencing. At resentencing, a new panel of officers and enlisted members sentenced the appellant to two years confinement, reduction to paygrade E-1, and awarded a dishonorable discharge.

Issues:
I. Court-martial jurisdiction requires that charges be referred by a “competent authority.” Did the court-martial lack in-personam jurisdiction over the appellant where he was a validly retired servicemember at the time of preferral, his retirement was never canceled by SECNAV, the case was referred by a subordinate commander, and R.C.M. 601(b)(3) requires referral for retirees to be completed by SECNAV, the “competent authority,” as a prerequisite to jurisdiction?

[II].. Before accepting CTT1 Christopher’s guilty plea, the military judge had a duty to advise him of his right to assert the protection of the statute of limitations. In failing to do so, did the military judge abuse her discretion?

[III]. United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003), requires that the military judge clarify ambiguous findings by the members on a conviction in order for a factual sufficiency review to be completed. Must the appellant’s conviction under Article 134 be overturned where the members were not given instructions to make a specific finding as to the date of the offense, and where the evidence presented showed the offense could have occurred outside the statute of limitations?

A common argument by those who favor of having commanders retain prosecutorial discretion in the military justice system is that:

The key to successfully getting both one soldier as well as hundreds of men and women to risk their lives for their country is an organizational structure. This frame work is cemented together by leadership skills and reinforced by the commanders’ ability to impose punishment.

Rachel E. VanLandingham, Discipline Justice and Command in the U.S. Military: Maximizing Strengths and Minimizing Weaknesses in a Special Society, 50 N. Eng. L. Rev. 21, 47 (2015).

A piece published in the New England Law Review by President of Mills College, Dr. Elizabeth Hillman, entitled On Unity: A Commentary on Discipline, Justice, and Command in the U.S. Military: Maximizing Strengths and Minimizing Weaknesses in a Special Society, 50 N. Eng. L. Rev. 65 (2015) takes issue with that premise.

The article starts by positing:

Unity of command and coercive discipline is much less of a reality in the armed forces of the twentieth and twenty-first centuries than in past militaries. The lessening significance of coercion in military life has been driven not only by studies of combat effectiveness and human behavior, but also by changes in the way the U.S. meets its demand for military personnel.

Id. at 68. Dr. Hillman notes that, rather than coercion, “solidarity in modern armies is seen as dependent on the collective connections between the members of individual units, not on the power of commanding officers. . . . Individuals fight on behalf of the state primarily because of the bonds of their military community rather than command authorities.” Id. at 69. Rather than coercion, good order and discipline in modern militaries is achieved by “’microphysics of power’ rather than sovereign legal authority.” Id.

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In a press release dated yesterday and available here, the Office of Military Commissions Convening Authority announced that the finding of contempt against Marine Corps Brigadier General John Baker by Air Force Military Judge Colonel Vance Spath – a finding that I analyzed in this post and concluded exceeded Spath’s statutory authority – is correct in law and fact.

The convening authority (Harvey Rishikof) disapproved the punishment of confinement for 21 days and a $1,000 fine. BGen Baker served three of those days of confinement in his quarters at Guantanamo before the remainder was deferred.

The convening authority also announced his intent to refer the matter for an ethics review.

The full text of the release is after the jump.

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CAAF decided the Consolidated motion to compel funding for learned counsel, a mitigation specialist, and a fact investigator; for appointment of appellate team members; and for a stay of proceedings, in the capital Army case of United States v. Hennis, __ M.J. __, No. 17-0263/AR (CAAFlog case page) (link to slip op.), on Monday, November 20, 2017. Concluding that there is no constitutional, statutory, or regulatory authority for the court to grant the motion, CAAF denies it.

Judge Ohlson writes for a unanimous court.

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This week at SCOTUS: Dalmazzi is scheduled for oral argument on January 16, 2018.

A cert. petition was filed in Richards v. United States, No. 17-701. In United States v. Richards, 76 M.J. 365 (C.A.A.F. Jul. 13, 2017) (CAAFlog case page) (link to slip op.), CAAF held that a search authorization for electronic media need not include a temporal limitation, even when the facts enable investigators to limit the search to a specific time period, so long as the authorization is otherwise sufficiently particularized so as to avoid an unconstitutionally broad search.

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

This week at CAAF: The next scheduled oral argument at CAAF is on November 28, 2017.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Tuesday, November 21, 2017, at 10 a.m.:

United States v. Hendrix, No. 20170439

Issues:
[I]. WHETHER A CONVENING AUTHORITY’S DISMISSAL OF CHARGES IS A “SUBTERFUGE” WHEN IT IS MOTIVATED BY A DESIRE TO HONOR THE WISHES OF A SEXUAL ASSAULT VICTIM UNDER DODI 6495.02.

[II]. WHETHER THE MILITARY JUDGE ERRED BY DISMISSING THE CHARGE WITH PREJUDICE.

Note: From the second issue and the counsel for each side, this case is an interlocutory prosecution appeal.

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 oral argument schedule shows no scheduled oral arguments at the CCA.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on November 28, 2017.

Yesterday CAAF granted review in this Army case:

No. 17-0608/AR. U.S. v. Randy E. Jones. CCA 20150370. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

I. WHETHER ADMISSION OF AN ALLEGED CO-CONSPIRATOR’S 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. 2015).

Briefs will be filed under Rule 25.

There’s no opinion on the CCA’s website, but between the case number and the citation to Mil. R. Evid. 304(g) (restyled as Mil. R. Evid. 304(c) in 2013), the case clearly involves the old corroboration rule.

Confessions – the least reliable form of proof known to the law – were our #10 Military Justice Story of 2015, after CAAF breathed new life into the corroboration requirement with its decision in United States v. Adams, 74 M.J. 137, 140 (C.A.A.F. 2015) (CAAFlog case page). The Joint Service Committee quickly proposed changing the rule to restore the corroboration requirement to its formerly toothless status, and President Obama promulgated that change just 13 months after CAAF’s decision in Adams.

For comparison, President Obama didn’t promulgate a Part IV of the MCM addressing the 2012 changes to Article 120 until September 16, 2016 – 51 months after the statute’s effective date.

Mil. R. Evid. 801(d)(2)(E) involves statements made by a “co-conspirator during and in furtherance of the conspiracy,” like discussions of the plan, pitches to recruit other conspirators, and confessions to law enforcement.

One of the five seats on CAAF has been vacant since Senior Judge Erdmann’s 15-year term expired on July 31, 2017. President Trump nominated Professor (and Army Reserve Colonel) Gregory Maggs to the seat on September 28, 2017.

Yesterday the Senate Committee on Armed Services held a hearing on three nominations including that of Mr. Maggs. Video and documents are available here.

Yesterday CAAF issued what appears to be a game-changing per curiam decision dismissing a writ-appeal on jurisdictional grounds in United States v. Gray, __ M.J. __, No. 17-0525 (discussed here).

I’ve had a few discussions with some folks and get the sense that there’s a lot of confusion about the underlying legal issue, so this post is a short introduction to extraordinary relief, followed by some more discussion of why the Gray decision appears to be a big deal.

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