In the Air Force case of United States v. Ortiz, __ M.J. __ (C.A.A.F. Apr. 17, 2017) (CAAFlog case page), CAAF found no error in the participation of a Presidentially-appointed and Senate-confirmed judge of the Court of Military Commission Review (CMCR), who is also an Air Force Colonel, on the CCA panel that reviewed the appellant’s case. An extension of time to file a cert. petition in Ortiz was granted until June 9, 2017 (noted here).

Ortiz was a replacement for United States v. Dalmazzi, 76 M.J. 1 (C.A.A.F. Dec. 15, 2016) (CAAFlog case page), also an Air Force case, which raised similar issues, was resolved on mootness grounds and is now the subject of a petition for certiorari (discussed here).

Over the past few days CAAF summarily affirmed 116 cases in light of its decision in Ortiz.

Of those 116 cases, two are from the Air Force and 114 are from the Army.

That’s not all of the trailers, however, as a small number of additional cases raising this issue are still out there (including a few that were argued this term but not yet decided.

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

United States v. Tucker, No. 17-0160/AR (CAAFlog case page): Oral argument audio.

United States v. Darnall, No. 16-0729/NA (CAAFlog case page): Oral argument audio.

CAAF decided the Army case of United States v. Erikson, __ M.J. __, No. 16-0705/AR (CAAFlog case page) (link to slip op.), on Tuesday, May 9, 2017. CAAF finds that it was not error for the military judge to exclude evidence that the alleged victim made a prior allegation of sexual assault against a different person because the prior allegation was not proven to be false. Accordingly, the court affirms the summary decision of the Army CCA.

Judge Ohlson writes for a unanimous court.

CAAF granted review of three issues, all of which were personally asserted by 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.

Issues II and III are resolved with a footnote to CAAF’s opinion in United States v. Ortiz, __ M.J. __ (C.A.A.F. Apr. 17, 2017) (CAAFlog case page).

Read more »

CAAF decided the Army case of United States v. Davis, __ M.J. __, No. 16-0306/AR (CAAFlog case page) (link to slip op.), on Tuesday, May, 9, 2017. Affirming a published decision of the Army CCA, CAAF finds that if an accused fails to preserve an instructional error with a timely objection or request, then the error is tested for plain error.

Judge Ryan writes for a unanimous court.

In 2013 Private (E-2) Davis was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of one specification of forcible rape in violation of Article 120. He was sentenced to confinement for six months, reduction to E-1, and a bad-conduct discharge. The conviction was based on an encounter between Davis and a female soldier in the other soldier’s barracks room, the military judge did not instruct the members on the defense of mistake of fact as to consent, and the defense did not object to the omission of such an instruction.

On appeal Davis challenged the omission of a mistake instruction. Rejecting the challenge (in an opinion discussed here) the CCA concluded that:

for mandatory instructions under R.C.M. 920(e)(1)-(3), a military judge retains the sua sponte duty to instruct on defenses raised by some evidence. . . . Nevertheless, in the case of any unpreserved error, the failure to request or object to an instruction on a defense forfeits the matter, absent plain error.

75 M.J. 537, 543-544. This finding of forfeiture was contrary to CAAF’s precedent, and so CAAF granted review to determine:

Whether the Army Court of Criminal Appeals erred in refusing to apply de novo review for failure to instruct on an affirmative defense raised by the evidence, and instead found forfeiture and applied a plain error analysis, contrary to this court’s precedents in United States v. Taylor, 26 M.J. 127 (C.M.A. 1988); United States v. Davis, 53 M.J. 202 (C.A.A.F. 2000); and United States v. Stanley, 71 M.J. 60 (C.A.A.F. 2012).

Today’s opinion affirms that the CCA got it right, though Judge Ryan lightly scolds the court for intruding on CAAF’s “prerogative to overrule its own decisions.” Slip op. at 5 n.2

Read more »

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

United States v. Claxton, No. 17-0148/AF (CAAFlog case page): Oral argument audio.

United States v. Carter, Nos. 17-0079/AF & 17-0086/AF (CAAFlog case page): Oral argument audio.

At 9:30 a.m. today, CAAF will hear oral argument in United States v. Claxton, No. 17-0148/AF (CAAFlog case page).

The case involves the prosecution’s failure to disclose that two of its witnesses were also undercover informants for the Air Force Office of Special Investigations (AFOSI). The Air Force CCA found error but concluded that it was harmless beyond a reasonable doubt. One of the informants is identified (and was first discovered after his status was published by a newspaper in 2013), but the identity of the second is well-hidden. So well, in fact, that Claxton’s briefs are sealed. Fortunately, however, the courtroom won’t be:

No. 17-0148/AF. U.S. v. Stephan H. Claxton. CCA 38188. On consideration of Appellant’s motion to close the courtroom for oral argument and the response of the government not opposing said motion, it is ordered that said motion is hereby denied. All parties will refer to the second confidential informant as “CI2” if necessary to the presentation of counsel’s oral argument on the assigned issue. The Clerk is directed to seal Appellant’s reply brief.

These informants were cadets at the Air Force Academy and – as discussed in the 2013 newspaper account – AFOSI would:

threaten them with prosecution, then coerce them into helping OSI in exchange for promises of leniency they don’t always keep. OSI then uses informants to infiltrate insular cadet groups, sometimes encouraging them to break rules to do so. When finished with informants, OSI takes steps to hide their existence, directing cadets to delete emails and messages, misleading Air Force commanders and Congress, and withholding documents they are required to release under the Freedom of Information Act.

The story seems to have been dragged, kicking and screaming, into the light. Bravo to CAAF for keeping it there.

CAAF issued this order on Friday:

No. 17-0307/AR. Robert B. Bergdahl v. Jeffrey R. Nance and United States. CCA 20170114. No. 17-0307/AR. Robert B. Bergdahl, Appellant v. Jeffrey R. Nance, Colonel, J.A. Military Judge, and United States, Appellees. CCA 20170114. On consideration of the writ-appeal petition and the motion of Former Federal Judges to file an amicus brief, it is ordered that said motion is hereby denied, and that said writ-appeal petition is hereby denied.

This was Bergdahl’s seventh writ petition, and it sought dismissal of his case because of things said during the presidential campaign (last discussed here).

Bergdahl’s prior trips to Judiciary Square were noted here (#6), here (#5), here (#4), here (#3), here (#2), and here (#1).

Military Rule of Evidence 514 is the Victim Advocate-Victim privilege. It protects:

a confidential communication made between the alleged victim and a victim advocate or between the alleged victim and Department of Defense Safe Helpline staff, in a case arising under the UCMJ, if such communication was made for the purpose of facilitating advice or assistance to the alleged victim.

Mil. R. Evid. 514(a). I discussed the rule in this 2012 post, where I wondered if it really exists (considering its irregular promulgation).

But what happens when the accused asserts the privilege? Last week CAAF granted review in a Coast Guard case that raises that question:

Read more »

This week at SCOTUS: The cert petition in Sterling has been distributed for conference on May 18. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking five cases:

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

Tuesday, May 9, 2017, at 9:30 a.m.

United States v. Claxton, No. 17-0148/AF (CAAFlog case page)

Issues:
I. Whether the findings and sentence must be set aside in light of United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016).

II. Whether the government’s failure to disclose that Air Force Academy Cadet E.T. was a confidential informant for the Air Force Office of Special Investigations (AFOSI) pursuant to Brady v. Maryland, 373 U.S. 83 (1963), was harmless beyond a reasonable doubt.

Case Links:
AFCCA’s first opinion
• Blog post: CAAF orders DuBay hearing
AFCCA opinion on remand
Blog post: CAAF grants review
Appellant’s brief (sealed)
Appellee’s (A.F. App. Gov’t Div.) brief
Appellant’s reply brief (not posted / sealed)
Blog post: Argument preview

Followed by:

United States v. Carter, Nos. 17-0079/AF & 17-0086/AF (CAAFlog case page)

Issues:
Certified Issue: Whether the Air Force Court of Criminal Appeals (AFCCA) erred by finding that the convening authority exceeded the scope of AFCCA’s remand when he referred Appellant’s case to an “other” trial under R.C.M. 1107(e)(2) following AFCCA’s original remand decision.

Granted Issues:
I. The Air Force Court of Criminal Appeals dismissed the charge and specifications in this case in 2013 and again in 2016. But it exceeded the eighteen-month presumption of unreasonable delay before doing so each time. Has Appellee been denied due process where he completed his sentence to three years of confinement 158 days before this court affirmed the lower court’s first dismissal of this case on August 2, 2013?

II. Whether Appellee’s prosecution for child endangerment was barred by the statute of limitations where more than five years had elapsed and Appellee was not brought to trial within 180 days of this court’s affirmance of the lower court’s dismissal of that specification

III. Whether United States Court of Military Commission Review Judge, Martin T. Mitchell, was statutorily authorized to sit as one of the Air Force Court of Criminal Appeals judges on the panel that decided Appellant’s case.

IV. Whether Judge Martin T. Mitchell’s service on both the Air Force Court of Criminal Appeals and the United States Court of Military Commission Review violated the appointments clause given his status as a principal officer on the United States Court of Military Commission Review.

V. Whether Judge Martin T. Mitchell was in fact a principal officer following his appointment by the President of the United States Court of Military Commission Review in light of the provisions of 10 U.S.C. § 949b(b)(4)(C) and (D), authorizing reassignment or withdrawal of Appellate Military judges so appointed by the Secretary of Defense of his designee.

Case Links:
AFCCA decision (2013)
Blog post: JAG certifies
Blog post: CAAF affirms
AFCCA decision after retrial (2016)
Blog post: JAG certifies
Appellant’s (A.F. App. Gov’t Div.) Brief – Certified Issues 
Appellee’s (Carter) Brief – Certified Issues
Appellant’s (Carter) Brief – Granted Issues
Appellant’s (A.F. App. Gov’t Div.) Brief – Granted Issues 
Appellant’s (Carter) Reply Brief – Granted Issues
Blog post: Argument preview

Wednesday, May 10, 2017, at 9:30 a.m.

United States v. Tucker, No. 17-0160/AR (CAAFlog case page)

Issue: Whether the Army Court erred in holding that the term “disorders and neglects” states a negligence standard for mental culpability under Article 134, UCMJ, which precludes application of United States v. Elonis.

Case Links:
ACCA decision (75 M.J. 872)
Appellant’s brief 
Appellee’s (Army App. Gov. Div.) brief
Appellant’s reply brief 
Blog post: Argument preview

Followed by:

United States v. Darnall, No. 16-0729/NA (CAAFlog case page)

Issue: Whether the military judge erred in failing to suppress evidence directly flowing from the illegal apprehension of Appellant, whether the NMCCA ruling upholding this decision conflated reasonable suspicion with probable cause, and whether this decision should be reversed.

Case Links:
NMCCA opinion
Appellant’s brief
Appellee’s (Navy-Marine Corps App. Gov’t Div. brief
Blog post: Argument preview

This week at the ACCA: The next scheduled oral argument at the Army CCA is on May 15, 2017.

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.

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on Thursday, May 11, 2017, at 10 a.m.:

United States v. Betancourt, No. 201500400

Case Summary:
A panel of officer and enlisted members sitting as a general court-martial convicted the appellant, contrary to his pleas, of one specification of aggravated sexual contact and two specifications of assault consummated by a battery; in violation of Articles 120 and 128, UCMJ, 10 U.S.C. § 920 and 928 (2012). The military judge also convicted the appellant, pursuant to his pleas, of one specification of conspiracy to commit assault, two specifications of violating a lawful general order, two specifications of signing a false record, one specification of cocaine use, one specification of possession of cocaine with intent to distribute, one specification of possession of methamphetamine with intent to distribute, one specification of larceny, one specification of forgery, and one specification of assault consummated by a battery; in violation of Articles 81, 92, 107, 112a, 121, 123, and 128, UCMJ, 10 U.S.C. §§ 881, 892, 907, 912a, 921, 923, and 928 (2012). The members sentenced the appellant to five years’ confinement, reduction to pay grade E-1, total forfeiture of pay and allowances, and a dishonorable discharge. The convening authority approved the sentence as adjudged and, except for the dishonorable discharge, ordered the sentence executed.

Issues:
I. A search authorization must contain probable cause and must describe with particularity the place to be searched, and the persons or things to be seized. The search authorization did not authorize the search and seizure of the appellant’s cellphone data, nor did it list with particularity the places to be searched on the appellant’s cellphone or list any search protocols. In her ruling, the military judge failed to address the search of the appellant’s cellphone data. Did the military judge abuse her discretion when she failed to suppress the search results of the appellant’s cellphone data?

II. Whether the government’s overly-expansive search of the appellant’s trial defense counsel’s office amounted to unlawful command influence?

III. Whether the government committed prosecutorial misconduct when it executed an overly-expansive search of defense counsel spaces at Marine Corps Base Camp Pendleton.

CAAF will hear oral argument in the Navy case of United States v. Darnall, No. 16-0729/NA (CAAFlog case page), on Wednesday, May 10, 2017, after the argument in Tucker. A single issue challenges the admission of evidence discovered after an apprehension of dubious legitimacy:

Whether the military judge erred in failing to suppress evidence directly flowing from the illegal apprehension of Appellant, whether the NMCCA ruling upholding this decision conflated reasonable suspicion with probable cause, and whether this decision should be reversed.

Hospitalman (E-3) Darnall was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of making a false official statement; twelve specifications of importing, possessing with the intent to distribute, distributing, and manufacturing controlled substances; four specifications of possessing, distributing, and importing controlled substance analogues; and seven specifications of using a communication facility in furtherance of a conspiracy in violation of Articles 81, 107, 112a, and 134. He was sentenced to confinement for six years, reduction to E-1, total forfeitures, and a dishonorable discharge. The convening authority suspended one year of the confinement but otherwise approved the findings and sentence.

The case began:

Sometime in November 2011, [when] a package containing white powder entered the United States via airmail from China through San Francisco International Airport. The powder was subsequently identified as dimethylone, which could be classified as a controlled substance analogue, but only if meant for human consumption. The box was addressed to a “Brandon Darnall”at “5985 Mariposa Ave, 29 Palms, CA 92277, USA. . .”

App. Br. at 4. Dimethylone is “street named ‘bath salts,'” Gov’t Div. Br. at 3 (quoting record), and has no known use other than for human consumption by idiots.

From the address on the package federal law enforcement suspected that the intended recipient was in the military. But Darnall “never lived at 5985 Mariposa Ave., which is an off-base residence. Instead, he lived on base.” App. Br. at 5. Nevertheless, military law enforcement agents arranged to have a substitute package delivered to Darnall’s unit’s mailroom and for Darnall to be instructed to pick it up. That happened and Darnall was apprehended.

After Darnall was apprehended he was read and waived his rights. Then he confessed to basically everything. A subsequent search of his cell phone (authorized by his commander) revealed additional evidence. Darnall was released, but he returned the next day to give another confession that reviewed everything from the first confession and provided additional details.

But Darnall asserts that the agents lacked probable cause to apprehend him and so all of this evidence should have been suppressed. The NMCCA rejected this argument, finding that the agents did have probable cause. Now CAAF will decide.

Read more »

CAAF will hear oral argument in the Army case of United States v. Tucker, No. 17-0160/AR (CAAFlog case page), on Wednesday, May 10, 2017, at 9:30 a.m. The court will examine the mens rea required to violate Article 134, reviewing a published decision of the Army CCA that found that the statutory term disorders and neglects establishes a negligence standard, with the following issue:

Whether the Army Court erred in holding that the term “disorders and neglects” states a negligence standard for mental culpability under Article 134, UCMJ, which precludes application of United States v. Elonis.

Private (E-1) Tucker pleaded guilty to numerous offenses at a general court-martial composed of a military judge alone. The offenses included two specifications of unlawfully providing alcohol to underage soldiers in violation of Article 134. Tucker admitted that he knew that one of the soldiers was underage, however he didn’t know and did not admit to having had any reason to know that the other soldier was underage. The military judge nevertheless accepted Tucker’s plea after instructing him on the concept of negligence:

which [the military judge] defined as “the lack of that degree of care that a reasonably prudent person would have exercised under the same or similar circumstances.” The military judge asked Private Tucker if he was “negligent” in that he “didn’t ask [Private TMG] her age or try to verify her age before serving her?” Private Tucker replied “Yes, sir.”

App. Br. at 3-4 (citations to record omitted).

In its recent decision in Elonis v. United States, 575 U..S. __, 135 S. Ct. 2001 (2015), the Supreme Court held that “federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state.” 135 S. Ct. at 2012. Where a statute does not state a required mental state (a mens rea), and such an omission is not deliberate legislative choice, courts will infer such a requirement and such inference will generally require that an accused have acted at least recklessly.

On appeal Tucker challenged his plea that was based on negligence, asserting that Article 134 has no mens rea element and so his conduct must have been at least reckless. The Army CCA, however, disagreed, holding that Article 134 provides a clear negligence standard:

However, Article 134, UCMJ, is not silent, for it specifically criminalizes “disorders and neglects” that are prejudicial to good order and discipline, or which tend to discredit the service. UCMJ art. 134. For those offenses where the crime clearly states a negligence standard, Elonis is inapplicable.

United States v. Tucker, 75 M.J. 872, 875 (A. Ct. Crim. App. Oct. 28, 2016) (link to slip op.).

CAAF then granted review.

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CAAF will hear oral argument in the certified Air Force case of United States v. Carter, Nos. 17-0079/AF & 17-0086/AF (CAAFlog case page), on Tuesday, May 9, 2017, after the argument in Claxton. The case involves one certified issue and five granted issues (but three of the granted issues are Ortiz trailer issues). The issues arise from convictions of child endangerment and committing indecent acts with a child, both in violation of Article 134, that were reversed on appeal by the Air Force CCA because the specifications didn’t allege a terminal element, then re-preferred, re-referred, and re-tried, but then reversed again by the CCA (and dismissed with prejudice) in a split decision (discussed here) that found that the CCA’s first reversal did not authorize the second trial:

Certified Issue: Whether the Air Force Court of Criminal Appeals (AFCCA) erred by finding that the convening authority exceeded the scope of AFCCA’s remand when he referred Appellant’s case to an “other” trial under R.C.M. 1107(e)(2) following AFCCA’s original remand decision.

Granted Issues:
I. The Air Force Court of Criminal Appeals dismissed the charge and specifications in this case in 2013 and again in 2016. But it exceeded the eighteen-month presumption of unreasonable delay before doing so each time. Has Appellee been denied due process where he completed his sentence to three years of confinement 158 days before this court affirmed the lower court’s first dismissal of this case on August 2, 2013?

II. Whether Appellee’s prosecution for child endangerment was barred by the statute of limitations where more than five years had elapsed and Appellee was not brought to trial within 180 days of this court’s affirmance of the lower court’s dismissal of that specification

III. Whether United States Court of Military Commission Review Judge, Martin T. Mitchell, was statutorily authorized to sit as one of the Air Force Court of Criminal Appeals judges on the panel that decided Appellant’s case.

IV. Whether Judge Martin T. Mitchell’s service on both the Air Force Court of Criminal Appeals and the United States Court of Military Commission Review violated the appointments clause given his status as a principal officer on the United States Court of Military Commission Review.

V. Whether Judge Martin T. Mitchell was in fact a principal officer following his appointment by the President of the United States Court of Military Commission Review in light of the provisions of 10 U.S.C. § 949b(b)(4)(C) and (D), authorizing reassignment or withdrawal of Appellate Military judges so appointed by the Secretary of Defense of his designee.

Back in 2010, Master Sergeant (E-7) Carter was convicted of indecent liberties with a child in violation of Article 120(j) (2016), and of child endangerment and indecent acts with a child, both in violation of Article 134, and sentenced to confinement for 4 years, reduction to E-1, total forfeitures, and a dishonorable discharge. The convening authority disapproved the conviction of violation of Article 120(j) and reduced the sentence to confinement to three years, but approved the remainder of the findings and sentence.

The Article 134 specifications, however, failed to allege a terminal element and so therefore failed to state offenses. See United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011) (discussed here). Because there was no objection at trial, the Air Force CCA applied CAAF’s decision in United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012) (CAAFlog case page). Nevertheless, the CCA reversed the findings in 2013, the JAG certified, and CAAF summarily affirmed.

The case was remanded and new charges were preferred and referred to a new general court-martial. Carter made numerous objections (including objecting based on the statute of limitations), but the trial proceeded and Carter was again convicted. The second sentence included confinement for 40 months, total forfeitures, and reduction to E-1 (but not a punitive discharge).

The Air Force court, however, reversed again. In a 2016 decision discussed here, a three-judge panel of the Air Force CCA split 2-1 to conclude that the court’s 2013 decision did not authorize further proceedings and that the charges should be dismissed with prejudice. The dissenting judge found that the second trial was an independent proceeding based on a totally new charge – analysis that I found (and still find) to be persuasive.

CAAF will now review that decision and also determine whether the statute of limitations prohibited the second trial and whether delays in the CCA’s review deprived Carter of his right to speedy appellate review.

Read more »

CAAF will hear oral argument in the Air Force case of United States v. Claxton, No. 17-0148/AF (CAAFlog case page), on Tuesday, May 9, 2017, at 9:30 a.m. The case is a Hills trailer and also involves the prosecution’s failure to disclose that two of its witnesses were also undercover informants for the Air Force Office of Special Investigations (AFOSI). The Air Force CCA found error in both issues, but it concluded that both errors were harmless beyond a reasonable doubt. CAAF then granted review of two issues challenging both findings of harmlessness:

I. Whether the findings and sentence must be set aside in light of United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016).

II. Whether the government’s failure to disclose that Air Force Academy Cadet E.T. was a confidential informant for the Air Force Office of Special Investigations (AFOSI) pursuant to Brady v. Maryland, 373 U.S. 83 (1963), was harmless beyond a reasonable doubt.

Read more »

Here is the Fayetteville Observer’s coverage of today’s scheduled hearing on motions in the SGT Bowe Bergdahl case. In today’s motions “prosecutors in April asked for the declassification of seven documents they plan to use during the proceedings.” In case you don’t get out much, from the FayObs:

Bergdahl is charged with desertion and misbehavior before the enemy by endangering the safety of a command, unit or place. He could face life imprisonment if convicted of misbehavior before the enemy.

He walked off his remote post in Afghanistan in 2009 and was subsequently held by the Taliban for five years.

Bergdahl’s appeal remains pending at CAAF, Stars and Strupes coverage here.

Here is Navy Times coverage of LCDR Lin’s plea deal. In what was an espionage case — it now becomes something much less, per Navy Times:

The Navy has dropped espionage charges against Lt. Cmdr. Edward Lin, part of a plea bargain agreement with the government that will result in the accused spy pleading guilty to a slate of lesser charges. 

Lin, who initially faced more than 30 years in the brig for allegations of spying for Taiwan and other misconduct, will plead guilty to lesser charges of communicating defense information, as well as multiple counts of disobeying lawful orders for mishandling classified information, lying on his leave chits about his travel and not reporting foreign contacts.