It will surprise no one who has listened to the Hathorne oral argument that CAAF today dismissed the appeal on ripeness grounds in this order.  United States v. Hathorne, __ M.J. __, No. 12-6002/AF (C.A.A.F. Apr. 26, 2012).

As a result of that summary disposition, it now appears that CAAF will issue 33 opinions of the court this term.

[Edit:  The original post said CAAF would issue 34 opinions of the court this term. An alert reader noted that in light of the Cooper summary affirmance, the actual number will likely be 33.]

The Special Court for Sierra Leone announced earlier today that Charles Taylor, the former President of Liberia, was convicted on all counts of an 11-count indictment which alleged that he was responsible for crimes committed by rebel forces during Sierra Leone’s decade-long civil war. The Special Court’s Trial Chamber found unanimously that Mr. Taylor aided and abetted RUF and AFRC rebels in the commission of war crimes and crimes against humanity in Sierra Leone.  This conviction is significant and historic for many reasons, not the least of which is that Charles Taylor is the first head of state to be indicted, tried and convicted by an international tribunal.

The Trial Chamber also released a judgment summary and stated that the full judgment will be released at a later date.  An item of particular interest in the judgment summary is how the trial chamber dealt with Taylor’s liability even though the evidence did not show that he personally committed the crimes charged in the indictment.  The trial chamber first considered Taylor’s liability under the well recognized doctrine of command responsibility.  Under Article 6(3) of the applicable statute a superior is criminally responsible if the superior knew or had reason to know that his or her subordinate was about to commit crimes prohibited by the Statute or had done so, and the superior failed to take the necessary and reasonable measures to prevent or punish the perpetrators.

The trial chamber found that Taylor knew or had reason to know that the forces operating in Sierra Leone were committing the crimes charged in the indictment.  However, the trial chamber noted that the prosecution must also demonstrate that the superior had effective “command and control” over his subordinates – i.e. the material ability to prevent or punish the commission of the offence.  Here the trial chamber fund that the prosecution failed to prove Taylor’s command and control over these forces.  At most, the prosecution could only prove that Taylor had substantial influence over the leadership of the RUF and AFRC forces and that Taylor provided guidance, support and advice to the RUF and AFRC leadership, but that did not raise to the level of command and control.  Accordingly, the trial chamber rejected Taylor’s liability under the doctrine of command responsibility.

Instead the trail chamber assessed Taylor’s liability as an aider and abettor.  The prosecution’s theory was that Taylor provided practical assistance, encouragement, or moral support, and these acts had a substantial effect on the perpetration of the crimes charged in the Indictment, and that Taylor had a clear intent to act in support of those crimes.  What is most interesting about this alternative theory is that, while the prosecution did not have to prove that Taylor had command and control over the forces, they had to prove that Taylor knew that his acts would assist the commission of the crime by the perpetrator, or that he was aware of the substantial likelihood that his acts would assist the commission of a crime by the perpetrator. In cases of specific intent crimes, such as acts of terrorism, Taylor must also be aware of the specific intent of the perpetrator.  This is a higher mens rea standard than the prosecution would have to prove under the command responsibility theory, under which the prosecution is only required to show that Taylor knew or had reason to know about the crimes being committed by the RUF and AFRC. 

Interestingly, the trial chamber found that the prosecution established Taylor’s criminal liability under this aider and abettor theory.  The judgment summary does not provide specific facts that the trial chamber relied on to determine that the prosecution satisfied this heightened mens rea requirement. This will be something to pay attention to when the full judgment is released.

In the category of “so much the same, but still so very different” is the recent news that the Solicitor General’s office filed a letter with the Supreme Court to “correct its prior statement to [the] court” in the case of Nken v. Holder, which was decided in 2009. In its brief in that case, the government wrote: “By policy and practice, the government accords aliens who were removed pending judicial review but then prevailed before the courts effective relief by, inter alia, facilitating the aliens’ return to the United States by parole under 8 U.S.C. 1182(d)(5) if necessary, and according them the status they had at the time of removal.” SCOTUSblog takes it from there:

Lawyers who specialize in immigration apparently were not aware of any such “policy and practice.”  Eight months after the Supreme Court’s decision in Nken, a coalition of immigrants’ rights groups filed Freedom of Information Act (FOIA) requests with the Justice Department and other government agencies, seeking the facts on which the government’s claim may have been based.  As those efforts proceeded, the Solicitor General’s office ultimately told those groups that a search of its records had turned up four pages in an e-mail exchange, in December 2008 and January 2009, discussing what would be said in the government’s brief to the Supreme Court.

The SG’s office, however, refused to disclose those e-mails.   So, last May, the immigrants’ rights groups filed a lawsuit in District Court in New York City, seeking an order to compel disclosure under the FOIA.  The complaint cited the government’s brief in Nken, arguing that “the government has made repeated public statements that it has a policy and practice of bringing back individuals who prevail in their immigration cases from abroad and continues to oppose motions to stay removal based on this promise to bring back individuals.”

Disputing that, the complaint said that “individuals who prevail in their immigration cases from abroad have faced substantial difficulty returning to the United States.  Despite efforts to seek out the government agencies and components responsible for facilitating return, individuals, their lawyers, and community organizations remain in the dark regarding the actual government process for return.”  In fact, the complaint said, citing several instances, “our government agencies have constructed multiple barriers to return which has resulted in individuals and their advocates spending months and years trying to return to family and community in this country….Generally, there is a lack of clarity or consistency as to which government agencies are responsible for arranging return and an attitude of indifference as to how, if at all, individuals can return.”

In other words, such a formal “policy and practice” didn’t exist. Rather, as the Solicitor General’s office explains in the second page of its letter, “the issue was not addressed by statute, and the government had not established a procedure as such: the volume of such cases was not large, and they were handled on a case-by-case basis.”

DOD policies have also been discussed in the federal judiciary recently, particularly Department of Defense Directive 5525.7 (2007), which implements the “Memorandum of Understanding between the Departments of Justice and Defense relating to the investigation and prosecution of certain crimes.” That policy says, in part, that “crimes committed outside a military installation by persons subject to the Uniform Code of Military Justice which, normally, are tried by court-martial will be investigated and prosecuted by the Department of Defense.” However, like with the asserted immigration policy in Nken, the actual practice may vary, and offenses may in fact be handled on a case-by-case basis.

That’s the interesting question addressed by this post on the TJAGLCS Crim Law Department’s 31(b)log.

DOJ today filed this reply to the appellant’s opposition to DOJ’s motion for summary affirmance in Partington v. Houck, No. 12-5038, currently pending in the United States Court of Appeals for the District of Columbia Circuit.

Today’s oral argument in United States v. Hathorne (audio available here), gives rise to some word sleuthing.

Appellant’s counsel, my colleague Maj Spencer Kerr, stated, “Appellant has already been discharged and, as far as the post-trial review goes, he has received a subjurisdictional sentence.” (12:42) Senior Judge Effron asked, “Where does this word ‘subjurisdictional’ come from?  Does it come from our case law?  Do you agree that there’s such a word?”  Maj Kerr responded, “It’s been used frequently, Your Honor.”  Following some laughter, the following exchange occurred:

Judge Effron:  Did you find it in any of our case law?

Maj Kerr:  No, Your Honor.

Judge Effron:  Did you find it in any dictionary?

Maj Kerr:  No, Your Honor.

We now know where the word comes from: Yale Law School professor Eugene R. Fidell.  The earliest use I found was in Gene’s Guide to the Rules of Practice and Procedure of the United States Court of Military Appeals as published by the Military Law Review in 1991.  131 Mil. L. Rev. 169, 185, 187, 191, 192, 259.  It’s likely that Professor Fidell used the word “subjurisdictional” in earlier versions of his CMA Rules Guide as well.  The earliest version of that Guide of which I’m aware is the 1978 version published by PLEI.  Further sleuthing is in order.

Gene spelled the word “subjurisdictional.”  Since it’s his word, I’ll treat that as the official spelling.  In its brief on the specified issue in Hathorne, the Government inserted a “[sic]” after quoting the word “subjurisdictional” from the Appellant’s brief, preferring “sub-jurisdictional” instead.  Government Brief at 3 n.1. 

Personally, I’m a fan of the word, regardless of when it was originally coined.  It’s unwieldy to refer to “cases in which the accused receives neither a punitive discharge nor a year or more of confinement.”  “Subjurisdictional” conveys the same meaning far more succinctly.

Audio of today’s much-anticipated (and packed) oral argument in United States v. Behenna is now available here.

This week at SCOTUS: Last week, a petition for a writ of certiorari was filed in the case of United States v. Miranda, No. 11-1237. Three days later the government waived its right to respond. The case history includes denial by the NMCCA of the appellant’s sole assignment of error that his pleas were improvident due to his bipolar and post-traumatic stress disorders. CAAF summarily affirmed the NMCCA on January 17, 2012, noting the “legal nullity” in the convening authority’s action.

Additionally, the Supreme Court will hear oral argument in a case of potential, albeit subtle, interest to military practitioners, Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, Nos. 11-246 & 11-247, which presents a question of prudential standing under the Administrative Procedures Act to challenge federal non-compliance with the law.

Finally, we anticipate a potential landmark decision this week in the confrontation clause case of Williams v. Illinois, No. 10-8505 (see our coverage here, here, and here).

This week at CAAF: CAAF will hear oral argument in three cases this week, all on Monday, April 23:

United States v. Behenna, No. 12-0030/AR

Issues:
I. Whether the military judge’s erroneous instruction limiting the right to self-defense deprived Appellant of his constitutional right to a fair trial.
II. Whether the government’s failure to disclose favorable information to the defense deprived Appellant of his constitutional right to a fair trial.

Case Links:
• Blog post: Behenna gets 25 years at GCM
• Blog post: TWIMJ – 5 Dec 10 (ACCA hearing)
• Blog post: ACCA argument recap
• ACCA opinion (CAAFlog link)
• Blog post: ACCA opinion analysis
• Appellant’s brief
• Appellee’s (government) brief
• Appellant’s reply brief
• NACDL’s amicus brief
• NIMJ’s amicus brief
• Blog Post: Argument preview

United States v. Ignacio, No. 12-0202/NA

Issue: In an Article 120(h), UCMJ, case, the military judge failed to instruct the members to consider all of the evidence, including the evidence of consent, when determining whether the government proved guilt beyond a reasonable doubt. In light of United States v. Prather, and United States v. Cheeseman, does the application of the affirmative defense provided by Article 120 without the aforementioned instruction violate appellant’s right to due process?

Case Links:
• NMCCA opinion
• Appellant’s brief
• Appellee’s (government) brief
• Appellant’s reply brief
• Blog Post: Argument preview

United States v. Hathorne, No. 12-6002/AF

Issues:
I. Whether government counsel’s strategic withholding of the convening authority’s grant of immunity makes appellant’s statement to government counsel non-immunized.
II. Whether, in light of United States v. Lopez de Victoria, 66 M.J. 67 (CAAF, 2008), this court has jurisdiction over an Article 62, UCMJ, appeal when the court-martial has adjudged a sentence that did not include a punitive discharge or confinement for one year?

Case Links:
• AFCCA’s opinion
• Blog post: AFCCA grants another Article 62
• Blog post: CAAF grant
• Appellant’s supplement to petition for grant of review
• Government’s answer
• Appellant’s brief
• Appellee’s (government) brief
• Blog Post: Argument preview

This week at the ACCA: The Army CCA will hear oral argument in three cases this week.

Wednesday, April 25: United States v. Jasper, No. 20100112

Issue: Whether the military judge abused his discretion in denying defense’s motion to compel production of Pastor Ellyson finding the alleged victim’s communications to Pastor Ellyson were privileged under M.R.E. 503, resulting in denial of appellant’s Sixth Amendment right to cross examine witnesses and present a defense.

Thursday, April 26: United States v. Pleasant, No. 20100781

Issue: [Whether t]he evidence is legally and factually insufficient to support the appellant’s conviction for attempted larceny of military property and larceny of military property on divers occasions in Baghdad, Iraq.

Friday, April 27: United States v. Temple, No. 20090883

Issues:
I. [Whether t]he military judge committed plain error in failing to instruct the panel on consent.
II. [Whether t]he trial defense counsel provided, to the substantial prejudice of appellant, ineffective assistance of counsel to appellant during trial by waiving an instruction on consent, which was in fact the theory of defense in the case, and failing to adequately investigate the underlying Article 15 received by a defense witness.

This week at the AFCCA: The Air Force CCA will hear oral argument in two cases this week, both on Wednesday, April 25. The first is United States v. Nixon, No. 37622. The second is United States v. Dimatteo. No further information is available on the CCA’s website.

This week at the CGCCA: The next scheduled oral argument at the Coast Guard CCA is on May 7, 2012.

This week at the NMCCA: There are no scheduled oral arguments at the Navy-Marine Corps CCA.

I have Springsteen’s The Wild, the Innocent & the E Street Shuffle cranked on the CD player to get into the mood for a little CAAF watching.  (For the benefit of those CAAFlog readers who aren’t military appellate counsel — both of you — CAAF’s courthouse is at 450 E Street, N.W.)

With less than a month left in oral argument season – and a little more than four months to go before the end of the term — some of this term’s themes are coming into focus.

First, CAAF’s output this term will mark a historic low.  It appears that CAAF will issue 35 opinions of the court during its current term.  Last year it issued 46.  The total for the five previous terms were 43, 46, 65, 55, and 76.  Some dip in the number of cases is a predictable consequence of CAAF operating as a four-judge court for petition-granting purposes.  It’s not surprising that the defense would have a harder time getting two of four judges to agree to a grant compared to two of five judges.  Thirty of CAAF’s 35 decisions this term will be in cases with granted issues; the other five cases arise in certified issue cases — two each from the Air Force and Department of the Navy and one from the Army.  (One additional Army case — Pierce – was cross-certified.)  Of course, the diminution in the number of CAAF cases reflects a broader diminution in the number of GCMs and SPCMs being tried in the military as a whole. 

Overall, this term has an Armyish feel.  Fourteen of the cases to be decided this term are from the Army; 12 are Navy-Marine Corps cases; only 9 are Air Force cases.  It appears that CAAF won’t issue any opinions of the court in Coast Guard cases this term.  By comparison, last term the Air Force had the most cases, with 19, followed by 13 Army cases, 12 naval cases, and 1 Coast Guard case.

Windows are for cheaters; chimneys for the poor
Oh closets are for hangers; winners use the door
So use it Rosie, that’s what it’s there for

Whoops; sorry — I’m back now.

The term feels Armyish not only in numercially but also from a “buzz” perspective.  Ali and Behenna — both Army cases — are probably the two most watched cases of the term. 

But while the term may feel Armyish, a Marine has a lock on this term’s Silver CAAF Tongue Award for the advocate who argues the most cases at CAAF.  By the end of the term, Maj Jeff Liebenguth will have argued 5 out of the 35 cases on CAAF’s oral argument docket.

So far this term, CAAF has issued 20 opinions.  Judge Stucky has authored 6; Judge Ryan has authored 5; both Chief Judge Baker and Judge Erdmann have authored 4.  One opinion (McClain) was a per curiam.  Either Senior Judge Cox or Senior Judge Effron has sat on every case in which CAAF has heard oral argument this term, but neither has authored an opinion issued thus far.

CAAF’s third and final oral argument on Monday is in the “unusually interesting” Article 62 case of United States v. Hathorne, No. 12-6002/AF.

The case presents two issues. The first involves a grant of immunity from the convening authority, which the trial counsel strategically withheld from the appellant during an interview in which the appellant waived his right to remain silent and made numerous incriminating statements. The trial military judge found this to be “technically … correct under the Constitution and Article 31,” [but] inconsistent with “the law and fundamental notions of fairness,” ruled that the immunity was effective when issued, and dismissed the charge with prejudice. The government appealed, and the Air Force CCA reversed the trial military judge and reinstated the charge, finding that the trial counsel’s actions were within his authority and consistent with the convening authority’s intent, and that because the appellant waived his right to remain silent, there was nothing for the grant of immunity to overcome. The appellant then petitioned CAAF for review of the following issue:

Whether government counsel’s strategic withholding of the convening authority’s grant of immunity makes appellant’s statement to government counsel non-immunized.

However, neither the trial military judge not CAAF agreed to stay the trial proceedings while considering the appellant’s petition, and the trial proceeded on November 1-2, 2011, resulting in a conviction of one specification of cocaine use, and a sub-jurisdictional sentence of confinement for 7 days, hard labor without confinement for 30 days, restriction for 30 days, and reduction to E-1. The case was reviewed by a Judge Advocate under Article 64(a) on  December 6, and the appellant was administratively discharged (with a general characterization) effective December 27. On January 4, 2012, CAAF granted review of the first issue, and specified the second issue:

Whether, in light of United States v. Lopez de Victoria, 66 M.J. 67 (CAAF, 2008), this court has jurisdiction over an Article 62, UCMJ, appeal when the court-martial has adjudged a sentence that did not include a punitive discharge or confinement for one year?

The case began when the appellant’s roommate tested positive for cocaine, and the appellant was interviewed as a potential witness. Another potential witness implicated the appellant in use of cocaine, and the trial counsel – concerned that the appellant would refuse to testify during his roommate’s court-martial – obtained a grant of testimonial immunity from the general court-martial convening authority (GCMCA) on February 3. The next day, the appellant presented himself for another interview and was advised of his Article 31, UCMJ, rights and told that he was suspected of using cocaine. The appellant then waived his rights and admitted to the wrongful use. The government considered this to be a non-immunized admission, and proceeded to investigate and charge the appellant for the wrongful use without observing any of the limitations applicable in a case involving immunized statements (i.e., without adhering to the principles of Kastigar v. United States, 406 U.S. 441 (1972)) .

Read more »

CAAF will hear a second oral argument on Monday, in the case of United States v. Ignacio, No. 12-0202/NA. The appellant, a male Petty Officer in the Navy, orally sodomized a junior male shipmate after a night of heavy drinking while on shore leave in Puerto Vallarta, Mexico. He was convicted by members of abusive sexual conduct with a person who was substantially incapacitated under Article 120(h) (since revised to 120(d)), and sentenced to confinement for 3 years, reduction to E-1, total forfeitures, and a bad-conduct discharge.

During the trial, the appellant presented an affirmative defense of consent. The defense then asked the military judge to provide a tailored instruction. The military judge rejected the language proposed by the defense, and instead presented an instruction that included the following:

Evidence of consent is relevant to whether the prosecution has proven the elements of the offense beyond a reasonable doubt. Additionally, consent is a defense to the charged offense. . . . A person cannot consent to sexual activity if that person is substantially incapable of physically declining participation in the sexual conduct at issue. The prosecution has the burden to prove beyond a reasonable doubt that consent did not exist. Therefore, to find the accused guilty of the offense of abusive sexual contact, as alleged in Specification 1 of the Charge, you must be convinced beyond a reasonable doubt that at the time of the sexual contact alleged, [SN JA] did not consent.

The appellant argues that this language does not satisfy the burden established in Martin v. Ohio, 480 U.S. 228, 234 (1987), that evidence used by an accused to prove an affirmative defense must also be considered by the factfinder when determining whether the government has met its burden on the elements themselves (the “dual-use” instruction).

Read more »

Here is a link to Professor Steve Vladeck’s thoughts on the US v. Ali oral argument.  Here and here are our prior discussions of the argument, including our guest blogger, which Prof. Vladeck very nicely links to.  A snippet from his comments:

But the objection to military jurisdiction over civilians is not simply grounded in fairness concerns. Rather, as Justice Hugo Black put it in 1957, “[t]rial by jury in a court of law and in accordance with traditional modes of procedure after an indictment by grand jury has served and remains one of our most vital barriers to governmental arbitrariness.” If that barrier is only displaced for civilians who accompany our forces in the field during a declared war, that’s one thing; after all, Congress hasn’t declared war since 1942. But if it could be brushed aside any time a civilian in any way supports a “contingency operation,” then one hopes that the Court of Appeals for the Armed Forces will realize what the Supreme Court has long suggested—that, regardless of how uncontroversial it might seem to court-martial someone like Ali, the first step down this particular slippery slope may well be the last.

I must say that I found the prediction that the case is going to SCOTUS a bold prediction.  We await a decision.  Any predictions on when it comes out?

From our friends at Marine Corps Times, here:

Navy Secretary Ray Mabus has ordered separation procedures to begin for two Marines who admitted to lying about the 2005 shooting deaths of two dozen Iraqi civilians in Hadithah, a Navy official said.

Mabus directed Commandant Gen. Jim Amos to start the administrative separation proceedings against Sgts. Sanick P. Dela Cruz and Humberto M. Mendoza, said Lt. Cmdr. Tamara Lawrence, a Navy Department spokeswoman at the Pentagon.

In an April 19 letter to Amos, Mabus said he recently completed a review of the so-called “Hadithah” incident, which involved a squad with Camp Pendleton’s 3rd Battalion, 1st Marines, and “reviewed troubling information about their conduct.”

Specifically, Mabus wrote, Dela Cruz, who was a corporal at the time, had made “false official statements” to Naval Criminal Investigative Service and command investigators regarding the deaths of five men who were in a car that approached the scene of a fatal roadside bomb blast on Nov. 19, 2005. Mendoza, a private first class at the time, lied to investigators and withheld information about his and other Marines’ actions on that day, the secretary also said.

“Such conduct is wholly inconsistent with the core values of the Department of the Navy,” Mabus wrote. “You are directed to immediately initiate administrative processing for [Dela Cruz and Mendoza] … for administrative separation is in the best interest of the service.”

More later on the convening authority for the adseps.  Both Marines are assigned to Camp Pendleton, but potentially in different units. 

H/t GF

While we await the Supreme Court’s possibly game-changing confrontation clause opinion in Williams v. Illinois, enterprising trial defense counsel are continuing to push the limits of CAAF’s confrontation jurisprudence. In the Navy case of United States v. Lubich, the NMCCA considered the trial judge’s denial of a defense objection to computer-generated printouts of a forensic examination of the appellant’s computer.

The appellant was charged with impersonating her supervisor, a commissioned officer, and submitting fraudulent documents while applying for a $10,000 loan in his name. At trial, the Government sought to introduce documents that detailed her internet history, showing websites she visited and passwords she used to access accounts. Mr. Schmidt, a cyber forensics examiner from the Naval Criminal Investigative Service (NCIS), testified that he conducted a forensic examination of the appellant’s user data from her Navy-Marine Corps Intranet (NMCI) account. He described a process in which the case agent submitted a request to the NMCI Information Assurance Department, which then remotely collected all data associated with the appellant’s navy.mil user account by an automated process that searched NMCI servers for information on the account and then retrieved her user account data from servers and from all workstations that she had logged onto. . . . Mr. Schmidt generated two reports, using computer forensic tools.
. . .
Trial defense counsel objected to the introduction of [the reports], arguing that Mr. Schmitt could not properly authenticate the two exhibits as he had not collected the underlying data from the appellant’s navy.mil account, and that the data contained testimonial hearsay.

United States v. Lubich, No. 201100378, slip op. at 2-3 (N-M Ct. Crim. App., April 19, 2012). The NMCCA rejected the appellant’s arguments in a short opinion that begins with the plain statement that “[m]achine-generated data and printouts are not statements and thus not hearsay – machines are not declarants – and such data is therefore not ‘testimonial.’” Lubich, slip op. at 4 (citing United States v. Sweeney, 70 M.J. 296, 301 (C.A.A.F. 2011)). Because the admitted reports are raw data, the CCA found that they do not implicate the confrontation clause. Similarly, the CCA found that they “contain no statement, were not made by a declarant, and are therefore not hearsay.” Lubich, slip op. at 4.

The opinion gives slightly more attention to the authentication argument, but rejects it on the basis that, “taking into account this record as a whole, the testimony of Mr. Schmidt was sufficient to authenticate [the reports].” Lubich, slip op. at 5.

The Blazier/Sweeney line of cases embrace the fundamental principle that “machines are not declarants,” and that admission of raw, machine-generated data is not objectionable on confrontation or hearsay grounds. That principle is commonly litigated in some form during drug cases, but cases like Lubich show that it has far broader application, and that its elimination would have far-reaching consequences to the presentation of evidence in criminal cases.