CAAF will hear oral argument in the Air Force case of United States v. Richards, No. 16-0727/AF (CAAFlog case page), on Wednesday, March 15, 2017, at 1 p.m. The court will hear argument on one issue challenging the validity of a search authorization as overbroad (an Ortiz trailer issue won’t be argued):

I. Whether the panel of AFCCA that heard appellant’s case was improperly constituted.

II. Whether the 9 November 2011 search authorization was overbroad in failing to limit the dates of the communications being searched, and if so, whether the error was harmless.

Lieutenant Colonel (O-5) Richards was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of possession of child pornography and committing indecent acts with children under the age of 16 in violation of Article 134, and of four specifications of failing to obey a lawful order in violation of Article 92. The military judge sentenced Richards confinement for 17 years and a dismissal. In a lengthy opinion the CCA affirmed the findings and the sentence.

The charges arose after a former participant in a Big Brothers of America program alleged sexual assault by Richards some years earlier. The Air Force Office of Special Investigations (AFOSI) began an investigation that revealed evidence of an ongoing sexual relationship with another minor and involving electronic communications. That evidence supported a search authorization “to conduct a search to obtain ‘all electronic media and power cords for devices cable of transmitting or storing online communications.'” App. Br. at 7. Numerous devices were seized and searched by digital forensic analysis, eventually leading to the discovery of “thousands of images of child pornography.” Gov’t Div. Br. at 8.

At trial Richards moved to suppress the child pornography and derivative evidence “on several grounds, including that the search authorization was overbroad.” Gov’t Div. Br. at 9. The military judge denied the motion, concluding that the authorization was not overbroad and also that the good faith exception would apply even if it were overbroad. Richards renewed this claim at the Air Force CCA, where it was also rejected. He now takes the claim to CAAF to determine:

whether the Fourth Amendment requires a search authorization to include a temporal limitation when that information was available and known to law enforcement at the time the authorization was requested.

App. Br. at 17.

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Due to an impending snowpocalypse, CAAF’s oral arguments scheduled for tomorrow have been postponed to Thursday.

Post edited to reflect rescheduled oral arguments

This week at SCOTUS: The cert. petition in Howell was distributed for conference on March 24, 2017. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking four cases:

This week at CAAF: CAAF will hear oral argument in four cases this week (the Wednesday arguments will occur in the afternoon):

Wednesday, March 15, 2017, at 1 p.m.:

United States v. Richards, No. 16-0727/AF (CAAFlog case page)

Issues:
I. Whether the panel of AFCCA that heard appellant’s case was improperly constituted.

II. Whether the 9 November 2011 search authorization was overbroad in failing to limit the dates of the communications being searched, and if so, whether the error was harmless.

Case Links:
AFCCA opinion
Appellant’s brief
Appellee’s (Air Force App. Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

Followed by:

United States v. Gurczynski, No. 17-0139/AR (CAAFlog case page)

Issue: Whether the military judge erred in suppressing evidence of child pornography a digital forensic examiner discovered during a search for appellee’s communications with a child victim.

Case Links:
ACCA opinion
Appellant’s brief  (Army App. Gov’t Div.)
Appellee’s brief
Appellant’s (Army App. Gov’t Div.) reply brief
Amicus brief: N.M. App. Gov’t Div.
Blog post: Argument preview

Thursday, March 16, 2017, at 9:30 a.m.:

United States v. Reese, No. 17-0028/CG (CAAFlog case page)

Issues:
I. Whether the military judge erred in allowing the government to make a major change to a specification after the complaining witness’s testimony did not support the offense as originally charged.

II. Whether the specification of the additional charge fails to state an offense where the terminal element failed to allege words of criminality and where the alleged conduct fell within a listed offense of Article 134, UCMJ.

Case Links:
CGCCA opinion
Appellant’s brief
Appellee’s (Coast Guard Appellate Gov’t Div.) brief
Blog post: Argument preview

Followed by:

United States v. Hendrix, No. 16-0731/AR (CAAFlog case page)

Issues:
I. Whether the military judge abused his discretion when he denied a defense motion to suppress related to the identification of the appellant during a voice lineup.

II. Whether the military judge abused his discretion in denying appellant’s motion to compel an expert consultant, EP, in the field of audio forensic science and voice identification.

Case Links:
ACCA opinion (75 M.J. 704)
Appellant’s brief
Appellee’s (Army App. 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 March 21, 2017.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on March 28, 2017.

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

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on March 24, 2017.

The Military Law Review recently published an article by Army Major Angel M. Overgaard, one of the prosecutors from the Manning case.  In her article, Redefining the Narrative: Why Changes to Military Rule of Evidence 513 Require Courts to Treat the Psychotherapist-Patient Privilege as Nearly Absolute, 224 Mil. L. Rev 979, 984-985 (2017), Major Overgaard explores the intersection between a patient’s privilege under MRE 513 to keep communications with mental health providers private, and an accused person’s right to receive a fair trial.

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CAAF will hear oral argument in the Army case of United States v. Hendrix, No. 16-0731/AR (CAAFlog case page), on Tuesday, March 14, 2017, after the argument in Reese. The court will hear oral argument on two issues challenging admission of a voice lineup (three other issues raised Ortiz issues):

I. Whether the military judge abused his discretion when he denied a defense motion to suppress related to the identification of the appellant during a voice lineup.

II. Whether the military judge abused his discretion in denying appellant’s motion to compel an expert consultant, EP, in the field of audio forensic science and voice identification.

Specialist (E-4) Hendrix was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of sexual abuse of a child in violation of Article 120b. He was sentenced to confinement for 30 months, reduction to E-1, total forfeitures, and a dishonorable discharge.

The charge involved an allegation by a ten year old girl that “a tall man came into her room, pulled down her pants and underwear, and touched her . . . [she] also remembered the man saying, ‘Is your sister asleep’ and ‘Promise me you won’t tell anybody.'” App. Br. at 5 (citing record). Hendrix was a friend of the family and was charged. An Article 32 pretrial investigation, however, found no reasonable grounds to believe that Hendrix committed the offense in part because “CID never did a voice lineup to confirm whether [the child] could identify [Hendrix’s] voice.” App. Br. at 5 (quoting record). The prosecution then decided to conduct a voice lineup. But the process they used was less than ideal.

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Article 73 allows an accused convicted by a court-martial to petition for a new trial on the grounds of newly discovered evidence or fraud on the court. In a decision issued last week in Cook v. United States, Misc. Dkt. No. 2016-18 (link to slip op.), a three-judge panel of the Air Force CCA grants one such petition on the basis of newly discovered evidence.

Judge Speranza, writing for the unanimous panel, finds that the prosecution made an issue of whether the alleged victim would have consented to the alleged sexual act, rather than whether she did in fact consent. As a result:

newly found evidence regarding [the alleged victim’s] extramarital sexual relationship with [a paramour] would probably produce a substantially more favorable result for Petitioner in findings and, at the very least, sentencing. Moreover, evidence that [the alleged victim] engaged in an extramarital affair with [the paramour] discloses noncumulative impeachment evidence that is relevant not only to a material issue in the case, but the dispositive issue in Petitioner’s case — [the alleged victim’s] credibility.

Slip op. at 12 (emphases in original).

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CAAF will hear oral argument in the Coast Guard case of United States v. Reese, No. 17-0028/CG (CAAFlog case page), on Tuesday, March 14, 2017, at 9:30 a.m. Two granted issues challenge the wording of the charges; the first based on a change made during the trial and the second based on the omission of words of criminality from a specification under Article 134:

I. Whether the military judge erred in allowing the government to make a major change to a specification after the complaining witness’s testimony did not support the offense as originally charged.

II. Whether the specification of the additional charge fails to state an offense where the terminal element failed to allege words of criminality and where the alleged conduct fell within a listed offense of Article 134, UCMJ.

Aviation Maintenance Technician First Class (E-6) Reese elected to be tried by a military judge alone. Reese pleaded guilty to numerous offenses but he pleaded not guilty to other offenses including allegations of sexual abuse of a four year old boy, EV. Reese was also charged with engaging in service discrediting conduct in violation of Article 134 for telling the boy to keep quiet about the alleged sexual abuse.

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Significant military justice events this week: The Code Committee will hold its annual meeting on Tuesday, March 7, at CAAF (details here). Additionally, CAAF’s annual continuing legal education and training program will occur on Wednesday-Thursday, March 8-9, at American University Washington College of Law, Claudio Grossman Hall (details here).

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

This week at CAAF: The next scheduled oral argument at CAAF is on March 14, 2017.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on March 21, 2017.

This week at the AFCCA: The Air Force CCA’s website is inaccessible.

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

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on March 24, 2017.

Just a few weeks ago, this blog noted that CAAF had been so “unsettled” by the courtroom behavior of a military prosecutor in United States v. Sewell, No. 16-0360 (CAAFlog case page)that the Court named the prosecutor in the decision. However, ultimately, the Court found the conduct was harmless beyond a reasonable doubt and affirmed the conviction and sentence.

On February 21, the Sewell case was featured in an article published in The Daily Signal, which is the Heritage Foundation’s “digital-first, multimedia news platform.” The article, entitled “Latest Case of JAG Malpractice Shows Pressing Need For Reform,” was authored by the Manager of the Heritage Foundation’s National Security Law Program, Charles “Cully” Stimson, who is also, according to his Heritage Foundation biography, a senior naval reserve JAG. An article dispersed exclusively online by an entity derived from a political “think-tank” and aligned with a Political Action Committee will not normally constitute the sort of scholarship this column covers. However, this piece is an exception because it so precisely critiques a fundamental aspect of the military justice system, and because The Heritage Foundation reportedly “wields clout” within the new administration. For those reasons, it is worthy of note even if it is a bit polemic.

The article takes pains to publicly name the offending prosecutor from Sewell, and, in its opening volley, stridently declares:

The Court of Appeals for the Armed Forces (the top military court) has slammed another Army trial prosecutor for egregious misconduct in an Army court-martial.

Id.   Read more »

CAAF decided the Air Force case of United States v. Price, __ M.J. __, No. 16-0611/AF (CAAFlog case page) (link to slip op.), on Friday, March 3, 2017. In a short opinion the court concludes that the military judge did not elicit too much information about the appellant’s misconduct during the plea inquiry. CAAF affirms the findings and sentence and the decision of the Air Force CCA

Judge Ohlson writes for a unanimous court.

CAAF granted review to determine:

Whether the military judge abused his discretion by forcing appellant to admit to misconduct greater than was necessary for a provident plea.

Airman First Class (E-3) Price pleaded guilty at a special court-martial composed of a military judge alone to wrongfully using, possessing, and distributing various controlled substances. He was sentenced to confinement for four months, reduction to E-1, and a bad-conduct discharge.

In order to ensure that a plea of guilty at a court-martial is made voluntarily – and in light of the fact that military service involves all manner of coercion – a military judge must “conduct a detailed inquiry into the offenses charged, the accused’s understanding of the elements of each offense, the accused’s conduct, and the accused’s willingness to plead guilty.” Slip op. at 4 (quoting United States v. Perron, 58 M.J. 78, 82 (C.A.A.F. 2003)) (additional citation omitted) (emphasis in original).

When Price pleaded guilty, however, he offered only a “limited, generic recitation” of the factual basis for his plea (the things that made him guilty). Slip op. at 2. The military judge pressed for additional details over defense objection, eventually eliciting aggravating facts that were not perhaps totally necessary to a sufficient guilty plea.

But CAAF finds no error.

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

United States v. Erikson, No. 16-0705/AR (CAAFlog case page): Oral argument audio.

United States v. Ahern, No. 17-0032/AR (CAAFlog case page): Oral argument audio.

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

United States v. Hukill, No. 17-0003/AR (CAAFlog case page): Oral argument audio.

United States v. Feliciano, No. 17-0035/AR (CAAFlog case page): Oral argument audio.

CAAF will hear oral argument in the Army case of United States v. Ahern, No. 17-0032/AR (CAAFlog case page), on Wednesday, March 1, 2017, after the oral argument in Erikson. The case presents a challenge to the Army CCA’s interpretation of Mil. R. Evid. 304(a)(2), which governs a person’s failure to deny an accusation of wrongdoing made while the person was under investigation. In an unpublished decision (previously discussed here) the CCA concluded that the rule is only triggered by an investigation when the accused is actually aware of the investigation. CAAF granted review to determine:

Whether the lower court erred when it held that the prohibition against using an admission by silence provided by Mil. R. Evid. 304(a)(2) is triggered only “when the accused is aware of” an investigation contrary to the plain language of the rule.

Lieutenant Colonel (O-5) Ahern was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of aggravated sexual assault of a child, aggravated sexual assault, assault consummated by a battery, indecent acts with a child, and child endangerment in violation of Articles 120, 128, and 134. The members sentenced Ahern to confinement for 17 years and six months and to a dismissal.

The charges alleged that Ahern sexually abused his step-daughter. After the girl made the allegations, law enforcement directed her to send a pretext text message to Ahern in an effort to elicit an incriminating statement. Ahern did not respond to the message. The defense admitted evidence of this exchange at trial. The girl’s mother also conducted a recorded pretext phone call with Ahern, again in an effort to elicit an incriminating statement. The mother confronted Ahern with the allegation during the call and he did not directly deny it. The prosecution admitted the call into evidence without objection from the defense. Then, in closing argument, the prosecution asserted that Ahern’s failure to deny the allegations in response to the text message and the phone call were evidence of his guilt. The defense did not object to the argument.

The CCA affirmed after concluding that it was not plain error for the prosecution to assert in closing argument that Ahern’s failures to deny the allegations during pretext communications facilitated by law enforcement were admissions by silence.

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CAAF will hear oral argument in the Army case of United States v. Erikson, No. 16-0705/AR (CAAFlog case page), on Wednesday, March 1, 2017, at 9:30 a.m. The court will review a military judge’s exclusion of evidence that the alleged sexual assault victim made a prior (and ostensibly false) allegation of sexual assault against a different soldier; evidence that was offered to show the alleged victim’s motive to fabricate the allegation against the appellant:

I. Whether the military judge erred in excluding evidence that the victim previously made a false accusation of sexual contact against another soldier.

II. CMCR Judges Larss G. Celtnieks and Paulette V. Burton are not statutorily authorized to sit on the Army Court of Criminal Appeals.

III. Even if CMCR Judges Larss G. Celtnieks and Paulette V. Burton are statutorily authorized to be assigned to the Army Court of Criminal Appeals, their service on both courts violates the appointments clause given their newly attained status as superior officers.

Specialist (E-4) Erikson was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of two specifications of sexual assault and one specification of adultery in violation of Articles 120 and 134. The members sentenced Erikson to confinement for three years, reduction to E-1, and a bad-conduct discharge. The convening authority disapproved one of the sexual assault specifications and approved the adjudge sentence. The Army CCA summarily affirmed.

In advance of trial Erikson’s defense counsel sought a ruling on the admissibility of the alleged victim’s prior allegation. The defense theory was that at the time of both the prior allegation and the allegation against Erikson the alleged victim was in a failing relationship and the allegation was made to “attempt[] to avoid or resolve conflicts by making false accusations.” App. Br. at 5 (quoting record). “The defense [also] claimed that SPC BG [the alleged victim] knew she would receive favorable treatment each time she reported the sexual incidents, which gave her a motive to fabricate each report.” Gov’t Div. Br. at 9. The other alleged perpetrator was acquitted of the allegation at a summary court-martial.

The military judge denied Erikson’s motion to admit evidence of the other allegation, concluding that “the ‘defense failed to establish any similarity of the assault involved with [the other alleged offender] in May 2013 to the facts of this case which allegedly occurred in 2014’ and that it would lead to a trial within a trial and the probative value would be substantially outweighed.” App. Br. at 6 (quoting record). The military judge based his ruling in part on Mil. R. Evid. 412, which is the military’s rape shield statue.

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CAAF will hear oral argument in the Army case of United States v. Feliciano, No. 17-0035/AR (CAAFlog case page), on Tuesday, February 28, 2017, after the oral argument in Hukill. The case presents two issues related to the appellant’s convictions of attempted sexual assault:

I. Whether the military judge erred when he failed to instruct the panel on the defense of voluntary abandonment, and if so, whether the error was harmless beyond a reasonable doubt.

II. Whether the military judge erred when he instructed the panel that appellant’s mistake of fact as to consent must be both honest and reasonable, and if so, whether the error was harmless beyond a reasonable doubt.

Private (E-2) Feliciano was convicted of two specifications of attempted aggravated sexual assault in violation of Articles 80 and 120(c) (2006). Both specifications arose out of a sexual encounter in Feliciano’s barracks room with a female soldier who had been drinking. A third soldier witnessed the encounter and told Feliciano to stop, warning him that “if he continued along that they would definitely get him for rape, and that will be 25 to life and that people would probably also rape him in jail.” App. Br. at 4 (quoting record). Upon hearing this Feliciano ceased sexual contact with the alleged victim (who later returned to her own barracks room where she spent the night with the other soldier).

The members were not instructed on the defense of voluntary abandonment, which “is raised when the accused abandons his effort to commit a crime under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.” App. Br. at 10 (citations omitted). The members were instructed on the defense of mistake of fact as to consent, however they were instructed that any mistake needed to be reasonable. That is the standard for a general intent crime, but an attempt requires specific intent.

The Army CCA affirmed without considering either of the issues before CAAF. I noted the CCA’s opinion in this post for its suggestion that it might be proper to prohibit an accused from referencing sex offender registration in an unsworn statement.

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