Last October the Army CCA issued a published opinion in United States v. Treat, __ M.J. __, No. 20110402 (A.Ct.Crim.App. Oct. 25, 2013) (link to slip op.). Treat is a contested missing-movement case where Appellant was charged with missing the movement of a specific aircraft (“Flight TA4B702”) but was convicted by the military judge of missing the movement of a unit (“the flight dedicated to transport Main Body 1”). Appellant complained that this created a material fatal variance, but the CCA rejected this argument because “[t]he theory of the case, however, remained the same.” Slip op. at 5.

When I wrote about the case in this post last November, I argued that changing a charge of missing movement from missing a specific flight to missing “the flight dedicated to transport [a specific unit]” doesn’t actually keep the theory the same. Rather, it changes the theory completely, and substantially changes the nature of the offense. Because of this, I felt that the CCA’s conclusion that there was no material variance was mistaken.

CAAF’s going to determine if I got this one right:

No. 14-0280/AR.  U.S. v. Michael L. TREAT.  CCA 20110402.  Review granted on the following issue:

WHETHER THERE IS A FATAL VARIANCE AND A VIOLATION OF APPELLANT’S DUE PROCESS RIGHT TO NOTICE WHEN THE GOVERNMENT ALLEGED THAT APPELLANT MISSED THE MOVEMENT OF A PARTICULAR AIRCRAFT BUT THE PROOF ESTABLISHED THAT HE MISSED THE MOVEMENT OF A PARTICULAR UNIT.

Briefs will be filed under Rule 25.

Though, it’s worth mentioning that I could be both right and wrong in my analysis of this case, as I concluded:

The appellant’s hard-to-swallow defense of a kidnapping that prevented him from making the flight (for which he was also convicted of making a false official statement) isn’t affected at all by changing the theory of prosecution from a particular flight to a unit movement. Either way the false story leads to a conviction. So in the end, the variance is material but not fatal, and the CCA’s decision affirming the findings is the right result.

The Sinclair court-martial will begin on Tuesday at Fort Bragg, NC. The Fayetteville Observer has information for anyone planning to attend in this story.

Stars and Stripes profiles the Air Force SVC program in this story:

As described in a September evaluation report, SVC advocacy took many forms. SVCs persuaded commanders to allow transfers or forgo disciplining victims for violating fraternization rules, had retaliatory negative comments removed from performance reviews, had personnel who violated confidentiality rules removed from cases and retrieved clients’ cell phones from investigators who’d taken them for evidence and refused to return them. They secured clients transfers, even when commanders initially disapproved them and got protective orders.

Military Times continues coverage of the Sinclair UCI claims:

Fidell and others say the military should create independent commands to prosecute serious crimes rather than allowing courts-martial to be overseen by military commanders with no legal training.

“If anybody needed proof about the unreliability of the current command-centric system, here it is, this is the most glaring example,” Fidell said of the Sinclair case. “This is about an 18th-century [Uniform Code of Military Justice] charging system coming into collision with the 21st-century attorney’s code of professional conduct.”

And CBS reports as Senator Gillibrand tries to recapture the media’s attention:

To keep the issue alive, Gillibrand on Wednesday held a hearing on the relationship between military sexual assault, posttraumatic stress disorder and suicide.

In two recent decisions on Government interlocutory appeals under Article 62 the Air Force Court of Criminal Appeals splits the difference, granting one appeal and denying the second. Both cases involve sexual assault allegations, both cases involve evidence that was lost in part due to Government inaction, and both opinions are authored by Judge Weber.

The first case is United States v. Yarber, Misc. Dkt. No. 2013-25 (A.F.Ct.Crim.App. Feb. 20, 2014) (link to order). The appellee is charged with offenses that include two specifications of abusive sexual contact in violation of Article 120. The charges are related to the appellee’s sexual contact with the alleged victim while the two of them were at an on-base dining facility. The victim reported the contact and was interviewed by law enforcement. During the interview she reported that the appellee sent her inculpatory text messages. Law enforcement didn’t retain the phone or do a forensic search, and the phone was eventually lost. However, a Security Forces patrolman did handwrite copies of the messages.

Surprisingly, the military judge responded by prohibiting the alleged victim from testifying at all: “At a pretrial session, the military judge suppressed all testimony from [the alleged victim] after determining the Government violated Article 46, UCMJ; R.C.M. 703; and the Jencks Act when [her] cell phone was lost.” Order at 3. Reversing this ruling, the CCA rejects all three bases after noting that “the military judge orally ruled on the defense’s motion,” and “[h]e did not issue findings of fact – oral or written – and he merely referred to the evidence generally in explaining his ruling.” Order at 5. Key to the CCA’s conclusion is that:

[the patrolman's] transcription of the text messages provided comparable evidence to the lost cell phone that served as an adequate substitute. TSgt BB testified her transcription of the text messages was “98 percent accurate,” with only one alteration that did not change the substance of the messages. A substantially verbatim transcript of text messages is the very definition of “comparable evidence.” The military judge’s analysis completely ignores the fact TSgt BB copied down the text messages essentially verbatim.

Order at 6 (citations omitted). The court also notes the largely inculpatory nature of the messages: “it is difficult to see how the entirety of the text messages – which contained several admissions by the appellee – could have been ‘favorable to an accused’ and therefore exculpatory.” Order at 5. The CCA’s final conclusion is “the military judge abused his discretion in finding the Government violated Article 46, UCMJ; R.C.M. 703; and the Jencks Act. As no violation occurred, there are no grounds to suppress SrA EH’s testimony.” Order at 8.

But it’s a very different story in United States v. Seton, Misc. Dkt. No. 2013-27 (A.F.Ct.Crim.App. Feb. 24. 2014) (link to order) where the military judge dismissed the charge with prejudice as a remedy for the Government’s failure to preserve the video recording from a military dormitory’s surveillance system.

The appellee is charged with one specification of sexual assault in violation of Article 120, “alleging the appellee caused bodily harm to Airman First Class (A1C) BB through nonconsensual vaginal intercourse.” Order at 1. The facts of the “nonconsensual vaginal intercourse” are that:

In the weeks leading up to her birthday, A1C BB and the appellee engaged in some amorous activity short of intercourse on more than one occasion. The night of her birthday, A1C BB entered the appellee’s room and they talked for a short period. They progressed to kissing and then sexual intercourse, which A1C BB agreed was initially consensual. A few minutes after the intercourse began, however, she told the appellee “we shouldn’t be doing this,” because she had a boyfriend, and she wanted to stop, or words to that effect. She later reported that, in her mind, the intercourse (which she said lasted a total of five to ten minutes) was nonconsensual starting when she made these statements. According to A1C BB, the appellee continued for another 30 to 90 seconds past that point before intercourse concluded. Shortly after this incident, A1C BB reported it to her friend and then her boyfriend before making a formal report alleging the intercourse (or some portion thereof) constituted a sexual assault.

Order at 2 (emphasis added). This looks like the so-called “one thrust” theory (i.e., “just one thrust after she says ‘no,’ and it’s sexual assault”), and its weaknesses as a basis for a sexual assault prosecution are obvious. It’s also a terrifying distortion of the law. Of course consent can be withdrawn, and consensual encounters can become non-consensual when one party goes too far, but human sexual encounters just don’t turn on and off like a light switch. Especially mid-coitus.

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In a published opinion, the Coast Guard CCA affirms guilty pleas to wrongful use and distribution of various controlled substances despite the military judge’s explanation during the plea inquiry that, “A controlled substance is one that is illegal to possess.” United States v. Kroll, __ M.J. __, No. 0290 (C.G.Ct.Crim.App. Feb. 12, 2014) (the slip opinion isn’t posted on the CCA’s site yet, but the clerk sent me a copy that I’ve uploaded here).

Appellant was involved with numerous drugs, including painkillers Vicodin and Opana that, obviously, are perfectly legal to possess under the right circumstances (i.e., “by a person to whom they have been properly prescribed.” Slip op. at 4). The court notes that “one may question how Appellant can be said to have understood the criminality of her conduct after the military judge told her that possession of a controlled substance is illegal, without exception, when that is not the case for the substance she used.” Slip op. at 5.

In light of this definition, Appellant’s acknowledgment, in both the Stipulation of Fact and her testimony, that she had no authority to use Opana and that her use of it was wrongful, might not be a fully informed statement. There was no distinction explained to her between permissible and prohibited behavior with respect to Opana. Fortunately for the Government, however, Appellant’s admission that she obtained the Opana from a civilian friend, as opposed to a health-care provider, removes the possibility that her conduct could have been lawful. It cannot be said that both permissible and prohibited behaviors were possible within the limits of the facts presented in the Stipulation of Fact and her testimony. Hence there is no substantial basis for questioning the guilty plea.

We reach a similar conclusion with respect to Appellant’s plea to Specification 5, alleging wrongful distribution of Vicodin. Again, the military judge’s definition of wrongfulness allowed for exceptions only for law enforcement activities and for medical duties. Yet a person to whom Vicodin has been prescribed “may deliver the controlled substance to another person for disposal” if the recipient is authorized to carry out disposal. 21 U.S.C. § 822(g)(1). However, this scenario was negated when Appellant stipulated that she traded the Vicodin pill for a cigarette. Again, we see no substantial basis for questioning the guilty plea.

Slip op. at 5-6.

CAAF will hear oral argument in the Air Force case of United States v. Paul, No. 14-0119/AF (CAAFlog case page), on Tuesday, March 4, 2014. Appellant was convicted of multiple offenses, including wrongful use of 3,4-methylenedioxymethamphetamine (“Ecstasy”), on divers occasions. But when he was tried by a special court-martial composed of a military judge alone, the Government failed to either introduce evidence to prove that Ecstasy is a controlled substance or ask the trial judge to take judicial notice of that fact. To affirm the conviction, the AFCCA took judicial notice of the fact that ecstasy is a controlled substance, finding it to be indisputable. CAAF will review this action in the following issue:

Whether the Air Force Court of Criminal Appeals erred when it took judicial notice of an element of a charge in violation of Garner v. Louisiana, 368 U.S. 157 (1961), and Military Rule of Evidence (MRE) 201(c).

The granted issue cites Garner and M.R.E. 201(c) both of which address the procedural requirements to take judicial notice of an adjudicative fact. The Rule states:

(c) When discretionary. The military judge may take judicial notice, whether requested or not. The parties shall be informed in open court when, without being requested, the military judge takes judicial notice of an adjudicative fact essential to establishing an element of the case.

Garner involved convictions for disturbing the peace by the petitioners who sat quietly at a racially-segregated lunch counter. The Supreme Court found that no evidence was admitted that would support the convictions, and it concluded that, “There is nothing in the records to indicate that the trial judge did in fact take judicial notice of anything.” Garner, 368 M.J. at 173. The same is true of this case, as there was no discussion of ecstasy as a controlled substance during the trial (though a Government witness did briefly mention that Appellant was not prescribed any controlled substances).

The AFCCA also relied on United States v. Williams, 17 M.J. 207 (C.M.A. 1984), which involved a conviction for an assimilated statute that required that the offense (kidnapping) be committed in the special maritime and territorial jurisdiction of the United States. The jurisdictional layout of the base where the offense was committed was complicated and not resolved at trial. The CMA ordered a DuBay hearing, and then declined to take judicial notice of the necessary facts to establishe the jurisdictional element (after concluding that it could take such notice of “indisputable facts”), in part because of the complexity of the question and in part because:

in this case appellant exercised his statutory right to trial by court members, and that right must be protected. Therefore, all factual issues concerning guilt or innocence–including any issue of territorial jurisdiction–must be submitted to the members for determination. Even as to adjudicative facts which the judge judicially notices, the court-martial members have the final word, as they must be instructed under Mil.R.Evid. 201 (g).

Williams, 17 M.J. at 215. But this reason for the court’s caution in Williams is absent from Paul, as Appellant elected to be tried by a military judge alone. Finally, M.R.E. 202 (formerly 201A), specifically applies the procedural requirements of M.R.E. 201 to judicially noticed domestic law when “it is a fact that is of consequence to the determination of the action.” This is a military-specific rule.

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I’ve seen some reports on a new motion by the Defense in the General Sinclair case seeking dismissal of all charges, apparently for UCI. From this ABC News story:

Lawyers for Brig. Gen. Jeffrey A. Sinclair filed a motion made public Tuesday asking Military Judge Col. James Pohl to throw out the case. Sinclair’s lawyers argued that testimony from the primary witness against him is unreliable and that top Pentagon brass improperly meddled in prosecutorial decisions.

And from this WRAL (local media) story:

“The (fact) that top military leaders outside the proper chain of command have injected themselves into these proceedings and the current political environment has instilled fear into any officer with authority in connection with a sexual assault prosecution, leads to no other conclusion than the decision-makers in this case fear the adverse personal and political consequences of taking the ethically, morally, and just action of dismissing the charges that rely upon the testimony of the Government’s discredited primary accuser,” the motion states. “Because no reasonable observer could possibly determine that such a proceeding was fair and just, this case should be dismissed as a result of unlawful command influence.”

And from this WTVD (local media) story:

It says on February 8, 2014, Helixon shared with lead defense attorney Richard Scheff that “he believed (the accuser) had lied, and that charges that relied solely on (the accuser) should be dismissed.”

The introduction to the motion describes how Helixon felt ethically bound to remove himself from the case after concluding there was reasonable doubt as to Sinclair’s guilt on the sexual misconduct charges. It goes on to say he was ignored or rejected by the Staff Judge Advocate and Convening Authority, and concludes that “the decision-makers in this case fear the adverse personal and political consequences of taking the ethically, morally and just action of dismissing the charges that rely on the Government’s discredited primary accuser.” It ends by saying the case should be dismissed as a result of “unlawful command influence.”

The motion also claims that Helixon has disclosed that General Ray Odierno, the Army’s top commander, is “aware that the charges relying on the captain’s testimony are likely to fail.”

During a February 9 phone conversation between Helixon and Scheff, the motion says Helixon “acknowledged Sinclair was not guilty of sexual misconduct charges, nor did he deserve to be dismissed from the Army, go to jail or register as a sex offender.” It says Helixon believed that “politics and outside pressures were driving forces pushing the case forward,” telling Scheff that former 18th Airborne Corps SJA, Brigadier General Paul Wilson, would be “in charge” of the prosecution.

Wilson is currently a Washington, D.C.-based Assistant JAG for Military and Operational Law. The motion goes on to say that Wilson told Helixon he “knew the accuser was a liar, that she had lied since the beginning, and that she’d repeatedly lied directly to Helixon.”

Links to audio of today’s arguments:

• United States v. Flesher, No. 13-0602/AR (CAAFlog case page): Oral argument audio
• United States v. Frey, No. 14-0005/AR (CAAFlog case page): Oral argument audio

Last week CAAF granted review in an Army case where Appellant was sentenced to life without the possibility of parole for, among other things, the premeditated murder of a fellow soldier under circumstances described by the ACCA as:

Appellant stabbed another soldier to death under rather mysterious circumstances. There was no apparent motive for the killing, Appellant presented, in essence, an insanity defense, claiming that the drug prescribed to him by Army doctors to help him stop smoking, Varenicline (popularly known as and hereinafter referred to as Chantix), contributed to his lack of mental responsibility for the offenses alleged.

United States v. MacDonald, No. 20091118, slip op. at 1 (A.Ct.Crim.App. Jul 3, 2013) (link to unpub. op.). The granted issues are:

No. 14-0001/AR. U.S. v. George D. MACDONALD. CCA 20091118. Review granted on the following issues:
I. Whether the Army Court of Criminal Appeals erred in determining that the military judge’s error in quashing a subpoena issued to Pfizer, Inc., to produce relevant and necessary documents regarding clinical trials, adverse event reports, and post-market surveillance of the drug varenicline was harmless beyond a reasonable doubt.
II. Whether the military judge abused his discretion in denying a defense requested instruction on involuntary intoxication, and erred in failing to instruct the members on the effect of intoxication on appellant’s ability to form specific intent and premeditation.

The details of the killing, discussed at some length in the CCA’s opinion, are both puzzling and disturbing. The opinion also describes in detail the similarly-disturbing side effects of Chantix. The Defense sought production of documents from Pfizer and then from the FDA regarding these side effects, and the trial counsel issued a subpoena, but the military judge refused to enforce the subpoena. The CCA found this to be an abuse of the judge’s discretion, but harmless. Notably, in making this conclusion, the CCA found:

a reasonable possibility that the information in Pfizer’s and/or the FDA’s possession might establish that Chantix inspired appellant to entertain homicidal ideas and facilitate any tendency toward violent and hostile behavior he otherwise possessed.

Slip op. at 12.

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CAAF decided the certified Army case of United States v. Hines, No. 13-5010/AR, 73 M.J. 119 (link to slip op.) (CAAFlog case page) on Monday, February 24, 2014. The court reverses the decision of the Army CCA that found that the fraudulent receipt of a housing allowance constitutes a separate larceny for each month, and affirms Appellee’s guilty plea and the sentence.

Judge Ryan writes for a unanimous court.

Appellee was a Sergeant stationed at Fort Bragg, NC, in October, 2008, when he began to steal housing and family separation allowances failing to inform the military of his divorce and subsequently asserting on numerous forms that he was still married. Over the following three years and multiple assignments Appellee received various undeserved allowances, including the Basic Allowance for Housing (BAH) at the higher “with dependents” rate, and the Family Separation Allowance (FSA).

The Government discovered Appellee’s fraud and aggregated the improperly-received monthly allowances to charge him with two specifications of larceny and one specification of wrongful appropriation of military property, all of a value of more than $500. Appellee then pleaded guilty, at a general court-martial composed of a military judge alone, to two specifications of false official statement, two specifications of larceny of military property of a value more than $500, and one specification of wrongful appropriation of military property of a value more than $500, in violation of Articles 107 and 121, UCMJ. He was sentenced to confinement for three months, total forfeitures, reduction to E-1, and a bad-conduct discharge. The convening authority disapproved the forfeitures but otherwise approved the sentence.

On review, the Army CCA rejected the Government’s aggregate theory of the case, finding that Appellee “never satisfactorily admitted to a single larceny in an amount over $500.00 and only providently admitted to a series of separate larcenies each in an amount less than $500.00 and each, at a month apart, at substantially different times.” This part of the CCA’s decision created a split with the Navy-Marine Corps CCA that specifically adopted the aggregated, “continuing larceny” theory in United States v. Lepresti, 52 M.J. 644, 653 (N.M. Ct. Crim. App. 1999). The court also found that Appellee’s plea did not satisfactorily resolve the question of whether he was entitled to the housing allowance at the lower individual (without-dependents) rate. The CCA modified the findings but affirmed the sentence as approved by the convening authority.

The Army JAG then certified two issues to CAAF:

I. Whether the Army Court of Criminal Appeals erred when it held that Appellee’s pleas to Specifications 1, 2, and 3 of Charge II were improvident because theft of basic allowance for housing and family separation allowance occurring over multiple months “amounts to a separate larceny each month the money is received.”

II. Whether the Army Court of Criminal Appeals erred when it held that Appellee’s pleas to Specifications 1 and 3 of Charge II were improvident because the military judge “never satisfactorily resolved the inconsistency between [Appellee's] pleas to the entire amount [of basic allowance for housing] in light of his apparent entitlement to a lesser amount.”

Judge Ryan answers both questions in the affirmative, expressly adopting the reasoning of the 5th Circuit Court of Appeals in United States v. Billingslea, 603 F.2d 515, 520 (5th Cir. 1979), and concluding that any questions of Appellee’s lack of entitlement to the lower individual rate were resolved during the plea inquiry.

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CAAF will hear oral argument in the Army case of United States v. Davis, No. 14-0029/AR (CAAFlog case page), on Tuesday, March 4, 2014. The case involves a conviction for simple assault with an unloaded firearm after Appellant pointed the weapon at a houseguest who didn’t leave his property when asked. The Army CCA concluded that the military judge erred in failing to sua sponte instruct the court-martial members on the affirmative defense of defense of property, but that the error was harmless beyond a reasonable doubt. CAAF granted review with the following issue:

Whether the Army Court of Criminal Appeals erred in finding that the military judge’s failure to instruct on the affirmative defense of defense of property was harmless beyond a reasonable doubt.

There are both disputed and undisputed facts of the case. The undisputed facts are that after a night involving drinking, dancing, and playing pool, Appellant pointed an unloaded .40 caliber semiautomatic pistol at a houseguest named Specialist S.S. The Specialist was fighting with his grilfriend, and Appellant became agitated and demanded that S.S. and his girlfriend leave Appellant’s property. Appellant then retrieved the pistol from inside his house and pointed it at S.S. while standing on his own front porch. The disputed facts involve how that demand was communicated and exactly what happened before the weapon was used, with Appellant testifying that S.S. was the initial aggressor by lunging at him, and S.S. testifying that Appellant was the initial aggressor by throwing a punch.

Read more »

Remember the Article 62 appeal in the Army case of United States v. Trank, No. 20130742 (A.Ct.Crim.App. Nov. 19, 2013) (link to unpub. op.)? It’s the case I wrote about last November, in a post titled: In the debate over whether an alleged victim should testify at an Article 32 hearing, the Army CCA has impeccable timing.

In an unpublished decision in United States v. Trank, No. 20130742 (A.Ct.Crim.App. Nov. 19, 2013) (available here and here), the CCA grants a Government interlocutory appeal in a sexual assault case involving an alleged child victim who refuses to testify at trial. The military judge prevented the Government from admitting the recorded pretrial statements of the alleged child victim. But the CCA reverses, finding that the pretrial statements are admissible because the Defense had the opportunity and similar motive to cross-examine the child when she made the statements during her testimony at the Article 32 hearing.

This was followed by a note in mid-January that the Accused petitioned CAAF for review of the Army CCA’s decision.

Last Friday, CAAF ordered a stay of the trial proceedings:

No. 14-6003/AR.  U.S. v. Robert J. TRANK.  CCA 20130742.  On consideration of Appellant’s motion for a stay of proceedings, it is ordered that said motion is hereby granted pending further order of the Court.

So argues professor and former Army judge advocate Wm. C. Peters in an Elon Law Review article titled: Article 37 of the UCMJ and Command Responsibility for War Crimes – Unlawful Command Influence as (Rogue) Elephant in the Room (available here).

The author calls for an independent civilian special prosecutor at the service secretary level to oversee the prosecution of war crimes cases involving allegations of misconduct by commands. He sees such as prosecutor as necessary because, “There is probable cause to conclude our military justice system employs UCI, as both scabbard and saber, to prevent war crime prosecutions against senior commanders from ever reaching finality in law” (Page 28 of the linked pdf). But considering that the fundamental problem with command influence of a court-martial is that it deprives the accused of constitutional rights, the premise of the article seems to force a square peg into a round hole.

The article also notes the pressure on judge advocates to be sycophants:

Adding to this unique attorney-client relationship is the military’s overarching hierarchical structure. In the past, the U.S. Army practice was for service regimental headquarters to regularly admonish judge advocates (JAs) to be “soldiers first” – as if there should be any professional considerations allowed to get in the way of providing sound legal advice under some vague, undefined circumstance. The subtle though clear reminder, especially for junior legal staff officers wishing to grow into senior advisors, is that the commander as client and ranking officer need not abide by your counsel, even if it specifically addresses the lawful way ahead. When it comes to the stark business of war-fighting and the tactics, techniques, and procedures generated by battlestaffs – which may contribute to war crimes under certain circumstances – commanders tend to be strong-willed when receiving corporate counsel’s advice. Do as you are told, the JA learns, or you risk your rater’s wrath in career controlling efficiency reports. Of course, the uniformed service superior can always simply call for a new lawyer to offer up the counsel he or she prefers to hear.

Page 3 of the pdf. It’s also worth considering that appellate reversal usually comes long after the performance evaluation (and the personal award) is finalized.

This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court.

This week at CAAF: CAAF will hear oral argument in two cases this week, both on Monday, February 24, 2014:

United States v. Frey, No. 14-0005/AR (CAAFlog case page)

Issue: Whether the Air Force court erred in finding trial counsel’s presentencing argument was harmless error where trial counsel insinuated that appellant will commit future acts of child molestation.

Case Links:
• AFCCA opinion
• Blog post: CAAF to consider an Air Force prosecution sentencing argument
• Appellant’s brief
• Appellee’s (Government) brief
• Appellant’s reply brief
• Blog post: Argument preview

United States v. Flesher, No. 13-0602/AR (CAAFlog case page)

Issue: Whether the military judge abused his discretion when he admitted the testimony of a putative expert witness in violation of the military rules of evidence and case law on bolstering, expert qualifications, relevance, and the appropriate content and scope of expert testimony.

Case Links:
• ACCA opinion (summary affirmation)
• Blog post: A new grant at CAAF
• Appellant’s brief
• Appellee’s (Government) brief
• Blog post: Argument preview

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 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.

I have frequently recommended fourthamendment.com blog as daily reading.  The author even includes reference to military appellate cases of interest.  So AFCCA has released an (unpublished) opinion in United States v. Leps, and its a dirty business.

AFOSI agents asked the appellant for consent to search his on-base home. The appellant did not consent to a search. AFOSI agents went to his home and examined the outside of the home and the surrounding open space and public access areas. A residential trash bin labeled with the commercial trash disposal company’s logo was located adjacent to the appellant’s carport. AFOSI agents, after conferring with legal counsel, conducted a warrantless search of the trash bin and found paraphernalia associated with illegal drug use. AFOSI agents then secured a search warrant for the home and searched the home, discovering further evidence of drug use.

Slip op. at 2 (emphasis added).  As Zach said, of Wicks,  ”Getting a warrant isn’t hard, and getting a military search authorization is even easier.”  Anyway, not surprisingly, the accused sought to suppress evidence at trial, the military judge said it was OK, and AFCCA twice times says it’s OK.  Will CAAF take it?  Well, that possibility exists if Mr. Hall is correct and CAAF reads Jardines.  First what does Mr. Hall say.

Defendant had no reasonable expectation of privacy in a trash container next to his carport of his base housing. “When the AFOSI agents arrived at the appellant’s home, the trash bin was upright on the grass area immediately adjacent to the front right corner of the carport.” Applying Dunn, this was not curtilage. United States v. Leps, 2014 CCA LEXIS 91 (A.F. Ct. Crim.App. February 19, 2014). [This is completely wrong, and the court doesn’t even cite Jardines, SCOTUS's real residential curtilage case. This clearly was curtilage because the trash wasn’t yet at the street. What a disappointment this court turns out to be as a guardian of the Constitution.]

Note to audience and trial judge, the accused, SrA Leps was tried in January 2013, and Jardines was decided in March.  We lightly referenced Jardines on 8 January 2012 here.  I think it fair to believe Mr. Hall is talking about Florida v. Jardines, 133 S. Ct. 1409, 185 L. Ed. 2d 495, 2013 U.S. LEXIS 2542 (2013).  Jardines is a drug dog on the porch sniffing at the front door case – bad boy, bad doggie. Consistent with Dunn, and Sotomayor argues Kyllo, the court finds error.

“This [Fourth Amendment] right would be of little practical value if the State’s agents could stand in a home’s porch or side garden and trawl for evidence with impunity; the right to retreat would be significantly diminished if the police could enter a man’s property to observe his repose from just outside the front window.  133 S.Ct. at 1414 (emphasis added).

The court then says that the porch is a “classic exemplar” of what is protected.  I think Mr. Hall’s point, and that of Jardines, is that Leps’s trashcan was still within the curtilage based on the facts.  This seems buttressed in light of a couple of AWOLs.

1.  The Leps court calls upon United States v. Dunn, 480 U.S. 294 (1987) for factors to determine “curtilage.”  Slip op. at 10.  The Supreme Court does not cite to Dunn in Jardines.

2.  Another case relied on in Leps, California v. Greenwood, 486 U.S. 35 (1988), would seem to be distinguishable.  The court found the trashbag in Greenwood “was left for collection outside the curtilage of a home.”  486 U.S. at 39-44 (emphasis added).  Jardines does not cite Greenwood either.

I will leave you to determine the full extent of the trash talk.  I will also leave you with these other points.

I think Mr. Hall meant to say curb.  But street probably works just as well.

The court in Jardines said, “We therefore regard the area “immediately surrounding and associated with the home” –what our cases call the curtilage–as “part of the home itself for Fourth Amendment purposes.”  133 S.Ct. at 1414.

And, “While the boundaries of the curtilage are generally “clearly marked,” the “conception defining the curtilage” is at any rate familiar enough that it is “easily understood from our daily experience.”  133 S.Ct. at 1415.

I am loath to do a Zach, but I will make a cautious prediction that CAAF will do one of two things – a summary remand for consideration in light of Jardines, or grant and decide.  CAAF has not issued a relevant opinion since Jardines was decided.  I note CAAF approves of Greenwood.  See United States v. Springer, 58 M.J. 164, 169, n.2 (C.A.A.F. 2003); United States v. Richter, 58 M.J. 213 (C.A.A.F. 1999)., each referencing the “outside the curtilage” language.

The Commandant’s interview with NPR on Monday (discussed in this post) is generating controversy because of apparent contradictions in his statements during the interview and between the interview and statements by other senior Marine leaders, according to this Marine Corps Times story. The story includes the following interesting paragraph:

Later, in August 2012, Amos emailed Mills to convey displeasure with the general’s intended approach to notifying the media about three cases that had been disposed of via nonjudicial punishment. “Rich,” Amos wrote, “if this is our official press release, then I don’t like it at all. We routinely publish NJPs in base newspapers to include specific charges, the names, and the punishments allotted. This smacks of us not doing anything punitively — ie, “an administrative procedure” — and looks like we are trying to hide evidence. I want somebody to come back to me this afternoon to talk about this.”

(emphasis added). Readers may be familiar with the significant disclosure limitations for nonjudicial punishment records contained within paragraph 0115 of the Manual of the Judge Advocate General of the Navy (JAGINST 5800.7F) (link).

According to an Associated Press story, a new prosecutor has been assigned to replace LTCOL Helixon whose departure from the BGEN Sinclair case generated a lot of discussion in this post from last week. According to the AP story (last paragraph) the new prosecutor has “indicated that the woman’s immunity agreement remains intact and that the case will proceed to trial.”

In the here-we-go-again category, The Washington Times reports that: “Sen. Kirsten Gillibrand will get her second shot to strip military commanders of their ability to decide whether to convene a trial in sex-assault cases as the Senate prepares to return to the issue next month.”

While not a military justice case, Stripes has this story of a former Army sniper who received a Bronze Star for actions in Afghanistan, but who after returning home realized that “there was a hole in his life, but he found a way to fill it: robbing banks.”

And finally, also from The Marine Corps Times is this article entitled: Sex assault and the pressure to prosecute: why some Marines fear justice is no longer blind. Captain Nicholas Stewart – whose conviction for aggravated sexual assault was set aside by CAAF in United States v. Stewart, 71 MJ 38 (C.A.A.F. 2012) (CAAFlog case page), due to a combination of a poorly-drafted charge and bad instructions from the military judge – is featured prominently in the piece.