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On Tuesday CAAF granted review in three cases.

Two involve the new Mil. R. Evid. 801(d)(1)(B)(ii), which is an issue the court is already considering in United States v. Finch, No. 19-0298/AR (CAAFlog case page). CAAF heard oral argument in Finch on December 4, 2019. During the oral argument, the Army Government Appellate Division largely conceded that the Army CCA correctly interpreted the new rule as not expanding the range of admissible statements beyond those that actually rehabilitate the witness on the specific point of impeachment (which have always been admissible, just not for their truth). The new cases are from the Navy and from the Army:

No. 20-0006/NA. U.S. v. Matthew D. Norwood. CCA 201800038. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:

I. WHETHER THE MILITARY JUDGE ERRED IN ADMITTING, OVER DEFENSE OBJECTION, THE ENTIRE VIDEO-RECORDED INTERVIEW OF THE COMPLAINING WITNESS UNDER MRE 801(d)(1)(B)(ii) AS A PRIOR CONSISTENT STATEMENT.

II. WHETHER THE GOVERNMENT TRIAL COUNSEL’S ARGUMENTS AMOUNTED TO PROSECUTORIAL MISCONDUCT THAT WARRANTS RELIEF.

Briefs will be filed under Rule 25.

No. 20-0033/AR. U.S. v. Thomas Ayala. CCA 20170336. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN ADMITTING THE VICTIM’S PRIOR CONSISTENT STATEMENTS UNDER MIL. R. EVID. 801(d)(1)(B)(i) AND 801(d)(1)(B)(ii).

No briefs will be filed under Rule 25.

The Navy-Marine Corps CCA issued a published decision in Norwood (available here), that I noted in my post about CAAF’s grant in Finch. Norwood is like Finch in two significant aspects. First, the NMCCA reached the same basic decision about the scope of the new Mil. R. Evid. 801(d)(1)(B)(ii) in Norwood as the ACCA reached in Finch:

Only the second part of the amended rule is new and it does not change the admissibility of prior consistent statements used only to rehabilitate a witness’ credibility. It does, however, change what the statement can be used for once it is admitted into evidence. A prior consistent statement, not otherwise admissible under Mil. R. Evid. 801(d)(1)(B)(i), can now be used as substantive evidence as well as to rehabilitate the witness’ credibility.

United States v. Norwood, 79 M.J. 644, 655, slip op. at 4 (N-M Ct. Crim. App. 2019). Second, in both Norwood and Finch the CCAs concluded that the statements at issue were admissible under Mil. R. Evid. 801(d)(1)(B)(i) because they rebutted defense charges of recent fabrication. That makes the first granted issue in Norwood somewhat curious, as it is does not challenge the NMCCA’s conclusion that the prior statement “squarely falls under part (i) of the rule.” 79 M.J. at 656.

The NMCCA also found “isolated and brief” improper arguments that it concluded were harmless. 79 M.J. at 664-665.

The Army CCA’s opinion in Ayala is here. The CCA found portions of the prior consistent statement to be admissible under part (i) of the rule, and other portions admissible under part (ii).

CAAF’s the third grant is from the Air Force and involves probable cause:

No. 20-0019/AF. U.S. v. Jared D. Bavender. CCA 39390. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED WHEN HE DENIED THE DEFENSE MOTION TO SUPPRESS EVIDENCE LOCATED ON APPELLANT’S DIGITAL MEDIA.

Briefs will be filed under Rule 25.

The Air Force CCA’s opinion is available here. The appellant admitted to looking at child pornography, and his admissions were used as the basis for a search authorization for his electronic media (where investigators discovered contraband child pornography). The defense moved to suppress the fruits of the search on the basis that the admissions didn’t actually provide probable cause because:

no information was included in the affidavit [supporting the request for the search authorization] about Appellant’s account of the settings, actions or poses of the children. Similarly, Appellant told the agents how he sought pictures of nude children by searching “nudist websites.” The pictures he found, so he claimed, did not depict minors engaged in sexual acts. Appellant denied looking at images on the Internet of children “actually having sex,” and maintained that the closest thing to a sexual image he saw online was a photo from a nudist website of a group of people standing naked and looking at the camera. One of those individuals was a teenage girl, and it was possible she was looking at a boy’s genitalia. The Defense relayed to the military judge that none of these facts were included in SA VL’s affidavit or provided to the magistrate, thereby rendering the search authorization inadequate.

United States v. Bavender, No. 39390, slip op. at 5 (A.F. Ct. Crim. App. Aug. 23, 2019). The military judge denied the motion on the basis that the appellant’s admissions provided a sufficient factual basis for probable cause, and the CCA affirmed.

This week at SCOTUS: Two amicus briefs – both in support of the Government – were filed in Briggs. First, 13 members of Congress (4 Republicans and 9 Democrats) filed this brief arguing that CAAF’s decision in Mangahas improperly rewrote the UCMJ to eliminate Congress’ intent that no statute of limitations apply to rape from 1986 onward. Second, Ms. Harmony Allen (the victim in Collins) and the special interest group Protect our Defenders filed this brief that makes a broad-based attack on CAAF’s decision in Mangahas.

In other news, the Government requested additional time to file the requested response in Richards, and it requested additional time to respond to the cert. petition in Voorhees.

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

This week at CAAF: The next schedule oral arguments at CAAF are on February 11, 2020.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Thursday, January 23, 2020, at 3 p.m., at the Widener University Commonwealth Law School, 3800 Vartan Way, Harrisburg, Pennsylvania  17110:

United States v. Holmes, No. 20180572

Issue: Applying self-defense, as recognized under Rule for Courts-Martial 916(e) and common law, is appellant’s conviction for maiming legally and factually sufficient?

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on February 5, 2020, at the George Washington University Law School.

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

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on February 6, 2020.

CAAF decided the Army case of United States v. Guardado, __ M.J. __, No. 19-0139/AR (CAAFlog case page) (link to slip op.), on Wednesday, January 15, 2020. Holding that its own precedent regarding an accused’s right to restoration in rank and pay pending a rehearing is not binding on the military pay agency, a majority of the court finds no intent to punish the appellant when that pay agency refused to restore his pay.

Judge Sparks writes for the court, joined by all but Judge Ohlson who dissents.

CAAF granted review of a single issue:

Whether the military judge abused his discretion by failing to grant Appellant Article 13, UCMJ, credit in consequence of the Howell v. United States, 75 M.J. 386 (C.A.A.F. 2016), violation present here.

Article 13 prohibits punishment before trial, and deprivation of military pay is a form of punishment. In Howell v. United States, 75 M.J. 386 (C.A.A.F. 2016) (CAAFlog case page), CAAF addressed a situation where a military accused is convicted at a court-martial and reduced in rank, the conviction is reversed, a retrial is planned and the accused is restored in rank pending that retrial, but the accused is not paid at the restored rate. That non-restoration of pay occurs because of Defense Finance and Accounting Service (DFAS) policy based on decisions by non-military courts: the Court of Appeals for the Federal Circuit and the Court of Federal Claims.

In Howell, a military judge held that paying an accused at the reduced rate prior to a retrial violated Article 13. The prosecution appealed. CAAF agreed that Article 75(a) – which requires restoration of rights and privileges when a court-martial conviction or sentence is reversed – mandates that “if an accused is released from confinement awaiting rehearing, his pay status . . . should be the same as if he had never been tried in the first instance.” Howell, 75 M.J. at 392. Nevertheless, CAAF found no violation of Article 13 because DFAS’ interpretation of Article 75(a) “was in furtherance of a legitimate, nonpunitive governmental objective to provide an accused pending rehearing with the proper pay entitlement as prescribed by Congress.” 75 M.J. at 394.

Guardado involves similar facts. Master Sergeant (E-8) Guardado was convicted of numerous offenses in 2014, and sentenced to confinement for eight years, total forfeitures, and reduction to the grade of E-1. CAAF reversed some of the convictions in 2017 and it set aside the sentence. United States v. Guardado, 77 M.J. 90 (C.A.A.F. 2017) (CAAFlog case page). On remand, in 2018, Guardado was acquitted of the the most serious offense (aggravated sexual contact with a child) and resentenced on the remaining convictions that CAAF affirmed: three specifications of indecent liberties with a child, one specification of battery of a child, one specification of indecent language, and one specification of indecent acts. The new sentence included confinement for 55 months, total forfeitures, and reduction to E-1. Before Guardado was resentenced, however, he was released from confinement, during which time he was paid at the E-1 rate (imposed by the first court-martial) rather than the E-8 rate (his entitlement prior to the first court-martial). He sought credit from the military judge under Article 13, seeking application of CAAF’s decision in Howell. But the military judge denied the motion.

CAAF affirms the military judge’s denial, holding that its own “interpretation of Article 75(a), UCMJ, in Howell was not binding on DFAS in this instance. Accordingly, DFAS’s pay determination was not intended to punish [Guardado.]” Slip op. at 6. Judge Ohlson dissents because he finds that the non-restoration of pay is a proper basis to provide sentence relief and constitutes a violation of Article 13.

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

United States v. Washington, No. 19-0252/AR (CAAFlog case page): Oral argument audio (wma)(mp3)

United States v. Avery, No. 19-0259/AR (CAAFlog case page): Oral argument audio (wma)(mp3)

The audio is also available on our oral argument audio podcast.

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

United States v. Wall, No. 19-0143/AR (CAAFlog case page): Oral argument audio (wma)(mp3)

United States v. Gonzalez, No. 19-0297/AR (CAAFlog case page): Oral argument audio (wma)(mp3)

The audio is also available on our oral argument audio podcast.

With a recent opinion in United States v. Roberts, No. 20150023 (A. Ct. Crim. App. Dec. 11, 2019) (link to slip op.), a three-judge panel of the Army CCA rejects a claim of ineffective assistance of counsel with the conclusion that “defense counsel faced the Mount Everest of uphill battles to negate the government’s [evidence].” Slip op. at 7-8.

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The Air Force Times reports here about an Air Force Judge Advocate who was convicted of attempted larceny and making a false official statement at a general court-martial, and sentenced to be dismissed. The report states that Lt. Col. Deric Prescott – who formerly served as the staff judge advocate for Minot Air Force Base – “was convicted of one count and one specification of making a false official statement, a violation of Article 107 of the Uniform Code of Military Justice, and one count and one specification of attempted larceny of an amount greater than $500 from the moving company Total Moving Management, a violation of Article 80 of the UCMJ.”

The Los Angeles Times published this report about the recently completed review of the Navy and Marine Corps legal communities, with the observation that while “the review mentions Gallagher once in its 273 pages, the timing of it leaves little doubt that Gallagher’s case, and Trump’s anger at the Navy over it, was a factor in the report.” The report also notes that the review “found systemic problems relating to other military law cases in addition to Gallagher’s.” But:

The Navy’s review did not address what a senior Navy official described as a crippling morale hit suffered by the Navy JAG Corps — and the Navy at large — after the president’s actions.

“Both the president’s and Richardson’s interventions impacted morale and people’s belief in themselves,” said the senior officer, who was not authorized to comment. “There is no certainty that leadership would have their backs. There was significant concern in the Navy, from (lieutenants to admirals), about Trump’s involvement and whether it would affect careers and how it would impact the military justice system.”

Adm. Robert Burke, vice chief of naval operations, declined to answer questions about the JAG morale issue when asked by the Union-Tribune during a Q&A session with reporters Friday.

He said that the Navy JAGs are “talented individuals.”

Finally, Stars and Stripes published this story about tomorrow’s oral argument at CAAF in United States v. Washington, No. 19-0252/AR (CAAFlog case page).

Two years ago, in United States v. Harpole, 77 M.J. 231 (C.A.A.F. Feb. 14, 2018) (CAAFlog case page), CAAF held that the accused’s statements to a military victim advocate were not protected by the Mil. R. Evid. 514 victim advocate-victim privilege because a third party was present (to provide moral support to the accused) at the time the statements were made. But the circumstances of the case suggested that the victim advocate suspected the accused of an offense, and so CAAF remanded for a post-trial fact-finding hearing to determine if the accused received ineffective assistance of counsel when his defense counsel failed to move to suppress his statements due to a violation of Article 31.

The fact-finding hearing is complete and last month the Coast Guard CCA issued an opinion in the case finding no ineffective assistance of counsel because “a motion to suppress under Article 31(b) would not have succeeded.” United States v. Harpole, __ M.J. __, No. 1420 (C.G. Ct. Crim. App. Dec. 18, 2019) (link to slip op.). But the primary reason for that finding is surprising; the CCA holds that a victim advocate’s questioning does not trigger Article 31.

Writing for a three-judge panel, Judge Brubaker explains:

A victim advocate’s role is not to participate in a law enforcement or disciplinary inquiry. Rather, a victim advocate—much like a social worker or medical professional—provides support and services to individual servicemembers who report that they are crime victims. Extending Article 31(b) warning requirements to these services would result in precisely the type of “comprehensive and unintended reach” that our superior Court has consistently abjured. We thus hold that questioning by a victim advocate done solely within that role falls outside the intended reach of Article 31(b), UCMJ.

Slip op. at 7-8.

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This week at SCOTUS: The Solicitor General filed the government’s brief in Briggs on January 6, 2020. It’s available here. The Solicitor General also received a second extension of time to file the requested response in McDonald.

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 four cases this week:

Tuesday, January 14, 2020, at 9:30 a.m.:

United States v. Wall, No. 19-0143/AR (CAAFlog case page)

Granted issue: Whether after setting aside the sentence and ordering a remand, a service Court of Criminal Appeals is authorized to reassess the sentence and limit the lawful sentence the convening authority may approve.

Specified issue: Whether the granted issue is ripe for review at this time.

Case Links:
ACCA opinion
Blog post: CAAF grants review
Blog post: CAAF questions ripeness
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Appellant’s supplemental brief
Appellee’s (Gov’t Div.) supplemental brief
Blog post: Argument preview

Followed by:

United States v. Gonzalez, No. 19-0297/AR (CAAFlog case page)

Granted issue: Whether the Army Court abused its discretion by reassessing the sentence after dismissing the most egregious specification, and offering the convening authority the option to approve an excessive sentence for the remaining specification in lieu of a rehearing.

Specified issue: Whether Appellant waived or forfeited his objection to the Army Court’s instructions to the convening authority.

Case Links:
ACCA opinion
ACCA opinion after remand
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Blog post: Argument preview

Wednesday, January 15, 2020, at 9:30 a.m.:

United States v. Washington, No. 19-0252/AR (CAAFlog case page)

Issue: Whether the military judge abused her discretion by permitting the unit’s SHARP representative to testify that “when a person says ‘no’ it means stop, walk away.”

Case Links:
ACCA opinion (summary disposition)
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

Followed by:

United States v. Avery, No. 19-0259/AR (CAAFlog case page)

Issue: Whether the specification of Charge II, alleging the communication of indecent language to a child in violation of Article 134, UCMJ, was preempted by Article 120b.

Case Links:
ACCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (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 January 23, 2020, at Widener University Commonwealth Law School.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on February 5, 2020, at the George Washington University Law School.

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

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

CAAF will hear oral argument in the Army case of United States v. Avery, No. 19-0259/AR (CAAFlog case page), on Wednesday, January 15, 2020, after the argument in Washington. The court granted review of a single issue involving the preemption doctrine:

Whether the specification of Charge II, alleging the communication of indecent language to a child in violation of Article 134, UCMJ, was preempted by Article 120b.

Specialist (E-4) Avery was convicted of communicating indecent language to a child under the age of 16, as an enumerated offense under Article 134. The President enumerates such offenses by exercising his Article 56 power to set maximum punishments. The enumerated offense of indecent language criminalizes oral and written communications – without regard to the age of the recipient or any criminal intent – that are indecent and either prejudicial to good order and discipline or of a nature to bring discredit upon the armed forces. The maximum punishment authorized by the President for any violation includes confinement for six months and a bad-conduct discharge, but if the recipient of the communication is a child under the age of 16 then the President authorizes a greater punishment including confinement for two years and a dishonorable discharge.

Prior to the revision of Article 120 that took effect in 2007, the UCMJ did not explicitly criminalize indecent language (including communicating indecent language to children). Rather, the communication of indecent language was punishable under Article 134, where the President had enumerated the offenses of indecent language (with anyone) and indecent acts or liberties (including language) with a child. See ¶¶ 87 and 89, Part IV, Manual for Courts-Martial (2005 ed.). The President had, in fact, criminalized a wide variety of sexual misconduct that was outside the scope of the then-narrow Article 120, and the Joint Service Committee opposed Congress’ rewrite of Article 120 on the basis that the enumeration of offenses under Article 134 made the rewrite unnecessary.

Nevertheless, in 2006 Congress rewrote Article 120, codifying numerous offenses formerly chargeable only under Article 134 including the offenses of indecent liberty with a child in Article 120(j) (2007) and of indecent act (including language) in Article 120(k) (2007). But Congress did not enact a specific prohibition on indecent language similar to the offense of indecent language (with anyone) enumerated by the President under Article 134. As a result, while some enumerated Article 134 offenses were deleted, the offense of indecent language remained.

Congress rewrote Article 120 a second time in 2011, creating the new offense of sexual abuse of a child in Article 120b(c) (and eliminating indecent liberty with a child under Article 120(j)), and eliminating the offense of indecent act under Article 120(k) (while creating more narrow offenses in Article 120c). Yet, again, the new offenses were not as broad as the Article 134 offense of indecent language, and so the Article 134 offense remained in the Manual. And it’s still there, at ¶ 105 of Part IV of the 2019 edition, with the same elements as it has had since before 2006:

(1) That the accused orally or in writing communicated to another person certain language;

(2) That such language was indecent; and

(3) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

A note explains that where the person to whom the language was communicated was a child under the age of 16, that additional element should be added (to justify a greater maximum authorized punishment).

Avery was charged with that offense for indecent Facebook communications with the twelve year old stepdaughter of another soldier. His defense did not object to the charge at trial, but on appeal he claims that when Congress enacted the offense of sexual abuse of a child (in Article 120b(c) (2012)), it intended that offense to apply to all indecent communications to children, thereby preempting application of the Article 134 offense of indecent language in situations involving children. His argument is bolstered by the fact that sexual abuse of a child requires a specific intent that is absent from the Article 134 offense of indecent language.

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Back in August, the Secretary of the Navy (then Richard Spencer, who was fired in November for lack of candor) ordered a comprehensive review of the Navy and Marine Corps legal communities.

That review is complete and a 274-page report is available here.

The report makes 99 recommendations, which are reproduced after the jump.

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CAAF will hear oral argument in the Army case of United States v. Washington, No. 19-0252/AR (CAAFlog case page), on Wednesday, January 15, 2020, at 9:30 a.m. The court granted review of a single issue involving testimony about the Army’s Sexual Harassment Assault Response and Prevention (SHARP) program.

Whether the military judge abused her discretion by permitting the unit’s SHARP representative to testify that “when a person says ‘no’ it means stop, walk away.”

Private (E-1) Washington was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of two specifications of abusive sexual contact in violation of Article 120 (2012). Both specifications arose from a single encounter and they were merged for sentencing. The panel sentenced Washington to confinement for 30 days and a bad-conduct discharge. The Army CCA summarily affirmed.

The case involves an encounter between Washington and a female junior enlisted soldier identified as PFC AF. One night, in PFC AF’s barracks room, in her bed, Washington and PFC AF had a sexual encounter that involved touching and kissing and that ended when a third soldier knocked on the door of the room. It was undisputed that part of the encounter was consensual, but the prosecution alleged that near the end of the encounter Washington disregarded requests by PFC AF that he stop touching her.

At trial, Washington’s defense counsel raised the issue of mistake of fact as to consent during its cross-examination of PFC AF. Mistake of fact as to consent is a well-recognized special defense (which is somewhat the same as an affirmative defense) to adult sexual offenses under the UCMJ because it does not not deny the objective acts constituting the offense, but instead denies criminal responsibility for those acts. Accordingly, in Washington, in addition to proving the elements of the offense (which appear to involve a bodily harm / nonconsensual sexual touching; none of the briefs identify the precise basis for the conviction), the prosecution also had to prove that Washington did not have an honest and reasonable belief that PFC AF consented to the touching.

To help it meet that burden, the prosecution presented the testimony of the SHARP representative – Sergeant First Class Rivera – who provided training about consent to Washington and his unit just one week before the alleged assault:

Sergeant First Class Rivera testified that appellant participated in a company-level training class on the issue of consent during the week preceding the assault. (JA 145–49). The direct, cross, and redirect examination of SFC Rivera occupies less than ten pages of the record. (JA 145–54). The training included a slide on the topic of withdrawn consent and guidance on what to do when a person says “no” during a sexual encounter. (JA 149). SFC Rivera testified about the slide, indicating that the takeaway was that when one party says “no,” it means the other should “stop, walk away.” (JA 149). Sergeant First Class Rivera was not asked for his opinion on the meaning of the words “no” or “stop,” whether the slide accurately reflected the state of the law, or to otherwise credit that slide or the SHARP program.

Gov’t Div. Br. at 7. Washington’s defense counsel objected to that testimony but the military judge overruled the objection, ruling that testimony about the training Washington received was relevant to the issue of Washington’s education (which is one of the factors to consider when determining if a mistake of fact existed) and that it was not unfairly prejudicial. Thereafter, the SHARP representative’s testimony was not a prominent part of the prosecution’s case, but the trial counsel did reference it in rebuttal closing argument as a basis to find no mistake of fact:

The defense . . . proffered a third possibility: that PFC AF did say stop but that PVT Washington mistakenly believed this was limited to precluding him from actually performing oral sex. (JA 178). In rebuttal, the prosecution admitted that PVT Washington may have honestly believed PFC AF consented to continued sexual contact but argued this belief was objectively unreasonable. (JA 182). In doing so, it suggested the members’ “number one” consideration should be that PVT Washington was “trained by his unit before the assault about the importance of consent, about the importance of listening to other people if they say ‘no’ or ‘stop’ or express discomfort in a sexual situation [and] he kept going.” (JA 182).

App. Br. at 12.

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CAAF will hear oral argument in two Army cases on Tuesday, January 14, 2020, beginning at 9:30 a.m. Both cases challenge the Army CCA’s reassessment of the sentence when the CCA also remanded to the convening authority with a rehearing authorized for convictions that were reversed.

First CAAF will hear argument in United States v. Wall, No. 19-0143/AR (CAAFlog case page), which presents two issues:

Granted issue: Whether after setting aside the sentence and ordering a remand, a service Court of Criminal Appeals is authorized to reassess the sentence and limit the lawful sentence the convening authority may approve.

Specified issue: Whether the granted issue is ripe for review at this time.

Then CAAF will hear oral argument in United States v. Gonzalez, No. 19-0297/AR (CAAFlog case page), which also presents two issues:

Granted issue: Whether the Army Court abused its discretion by reassessing the sentence after dismissing the most egregious specification, and offering the convening authority the option to approve an excessive sentence for the remaining specification in lieu of a rehearing.

Specified issue: Whether Appellant waived or forfeited his objection to the Army Court’s instructions to the convening authority.

The primary difference between the cases is their procedural posture. In Wall, the convening authority has not yet acted on the CCA’s decision, while in Gonzalez the convening authority has acted (and the CCA affirmed that action).

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Nearly eight years ago, in United States v. Hayes, 71 M.J. 112 (C.A.A.F. May 1, 2012) (CAAFlog case page), a unanimous CAAF reversed an Airman’s conviction for dereliction of duty in violation of Article 92 because the Airman:

willfully failed to refrain from drinking alcohol while under the age of 21, as it was his duty to do.

71 M.J. at 113. The alleged source of that duty? “The Nevada state law concerning consumption of alcohol by persons under the age of twenty-one.” Id. CAAF reversed the conviction because – while the prosecution argued to the military judge that obeying state laws was a custom of the service – no evidence was presented to the members during trial to show that Hayes “was bound by a military duty, stemming from a custom of the service and subject to sanction under Article 92(3), UCMJ, to obey Nevada’s alcohol law.” 71 M.J. at 114.

The prosecution in Hayes employed a dereliction theory because (it seemed) the Air Force didn’t have a general order prohibiting the underage consumption of alcohol. The Army, however, does have such an order: Army Regulation 600-85, paragraph 3-2c. That order states:

Underage drinking is prohibited. Army policy governing the minimum age for dispensing, purchasing consuming,and possessing alcoholic beverages is found in AR 215–1, chapter 10. Any underage Soldier using alcoholic beverageswill be referred to the ASAP for screening within 5 working days except when permitted by AR 215–1, paragraph10–1f.

But with a recent opinion in United States v. Helton, No. 20190094 (A. Ct. Crim. App. Dec. 18, 2019) (link to slip op.), a three-judge panel of the Army CCA holds that the order is not punitive.

Judge Rodriguez writes:

“[I]f a regulation does not contain language establishing that it is a punitive regulation, a violation of the regulation is not a criminal offense under Article 92(1) [UCMJ].” United States v. Shavrnoch, 49 M.J. 334, 336 (C.A.A.F. 1998). Paragraph 3-2c of AR 600-85 does not contain language stating it is punitive. Accordingly, appellant pleaded guilty to a charge “[i]nvolving a legal standard that does not constitute an offense under Article 92, UCMJ, undermining appellant’s conviction ‘as a matter of law.”‘ Id. at 339 (quoting United States v. Faircloth, 45 M.J. 172, 174 (C.A.A.F. 1996)) (citing Prater, 32 M.J. at 436).

Slip op. at 3 (modification in original). A footnote adds:

Other provisions in AR 600-85 specifically state that violations of that provision are punishable under the UCMJ. See, e.g., paras. 4-2q, 4-1 lh, 10-2a, and 10-4a.

Slip op. at 3 n.2.