In a published opinion in United States v. Catano, No. 2015-04, __ M.J. __ (A.F. Ct. Crim. App. Oct. 14, 2015) (link to slip op.), a three-judge panel of the Air Force CCA denies a Government appeal of a military judge’s ruling that suppressed the accused’s statements to his first sergeant, additional statements made at a hospital, and the results of a probable cause urinalysis, because of the provisions of Air Force Instruction 44-121 that provide protections for an Airman who “voluntarily disclose[s] evidence of personal drug use or possession to the unit commander, first sergeant, substance use/misuse evaluator, or a military medical professional.” The accused in Catano made statement that included the admission: “I’m addicted to heroin.” Slip op. at 7.

The CCA finds that the military judge did not abuse her discretion in suppressing the evidence based upon the protections of AFI 44-121. Notably, the CCA’s decision includes consideration of the fact that after the military judge issued her initial ruling and the prosecution gave notice of its intent to appeal, the military judge:

issued a 6-page supplemental ruling that incorporated the entirety of her original ruling and added several findings of fact and conclusions of law. Her ultimate conclusion was unchanged.

Slip op. at 2. The Government asked the CCA to strike the supplemental ruling, asserting that “the automatic stay provision related to government appeals divested the military judge of jurisdiction over the court-martial once the notice of appeal was filed.” Slip op. at 2. But the CCA denied the motion and in its opinion it finds that a “military trial judge may sua sponte reconsider a ruling or order after notice of an Article 62, UCMJ, appeal and before the record of proceedings is authenticated.” Slip op. at 5.

Notably, in reaching this conclusion, the CCA describes the Government’s position in very harsh terms:

The Government expresses concern that the military judge amended her initial ruling in an effort “to strengthen her ruling with additional facts and analysis so that she would not be overturned.” Whether the changes found in the supplemental ruling favor the Government or Appellee is not the measure by which we determine the authority of the military judge to reconsider a prior ruling. We doubt the Government would object if the military judge had reconsidered her ruling and ruled in favor of the Government.

Slip op. at 6 (emphasis added).

27 Responses to “The AFCCA denies a Government appeal involving a self-admission of drug addiction”

  1. Phil Cave says:

    Do we know whether and how this Airman was given help for his addiction subsequent to his disclosure?

  2. LLOD says:

    If by help you mean he was given help finding the door, I am sure.

  3. Ganthet says:

    Those are very harsh terms?  It seems pretty anodyne, even for court opinionese.

  4. Concerned Defender says:

    Reminds me of yet another example of over-reach by the government in a case I defended and won.  Long story short, now reaching back to circa 2011.  My stellar client was a 6’4″ solid muscle combat engineer.  Multiple real combat deployments to OIF and OEF.  Injured on all of his deployments;  I recall he had a bonafide TBI from an IED blast once; I forget some of his injuries, but on his last deployment he was on patrol carrying well over 100 pounds of gear and equipment and they came under fire and he dove over a short wall, only to fall 10 feet down an unexpected embankment, breaking dozens of bones on the impact side of his body (leg, hip, arm, etc.).  In his 7 year career, he was deployed more than half of his career.  He didn’t know his two daughters and his marriage failed and his wife left him.  After spending a year in traction after his injuries, one Friday night he was depressed and drinking and hanging out with a friend, who had some pot.  My and tried to commit suicide by overdose of prescription drugs.  It failed.  He woke up Sunday.  His friend later told him he tied some weed (it was my clients first and only ever use of pot).  My client on Monday morning went to see his chain of command to self report and refer, unaware of the Limited Use exception.  Client was given a UA which was positive for THC.  Big surprise.
    The much smarter government Trial Counsel – a “Harvard Graduate” and one of the most corrupt and stupid TCs I’ve ever met (he had never deployed either) – convinced his leadership to OTH my client.  OTH!  Nine months of repeatedly arguing with the “Harvard grad” that he CANNOT use the limited use evidence as the basis for separation or characterization, we finally went to the board, and I mopped the floor with him and we won. 
    Over-reaching moron.  It’s JAGs like that which I’ve dealt with my entire life that have given me such a sour taste …

  5. stewie says:

    I heard that attorney also doesn’t wash his hands after he poops CD.

  6. Advocaat says:

    I was ready to be righteously angry at the government until I read the opinion.  Judge Teller hit the nail on the head in his dissent.  While an Airman Basic who is told, “You need to report to the orderly room but I can’t tell you why” might not know he or she has been selected to provide a urine sample, everyone else does–including this drug-using NCO who had been similarly notified 9 times in the past.  I do enjoy a good legal fiction, though, and I lament the fact that MJs lacked such imagination when I was a defender.

  7. (Former) ArmyTC says:

    I thought of this case this morning when I got my 0430 phone call “Good morning sir, this is [UPL NCO]. You have been selected for a random urinalysis and [Commander] has directed that you come to the company to provide a sample.” and thought, “wonder why the Air Force doesn’t use the same process we do?”I sincerely hope Catano got the help he needs. And who the hell takes drug use cases to court martial? Give him NJP. No need to stick a guy with a federal conviction for something that in any other job would just get you fired.

  8. (Former) ArmyTC says:

    Wow…that was some jacked up formatting. Curse you, Internet Explorer!

  9. DCGoneGalt says:

    Advocaat:  The AF loves drug use cases, even single-spec naked UAs but most of the new school try to limit those cases to NCOs/officers.

  10. Iuris Consulti says:

    I’m all for protecting self-reporting to give members a chance to get help, but the court created a big loophole here.  There was evidence in this case the member actually knew he had to provide a sample besides the common sense to which Advocaat refers.  The member in this case told his supervision he had to “go provide a drop,” prior to his “self-identification.”  The limited protections of self-identification are intended to prevent waiting until you know you’re caught to decide you need help, presumably to avoid punishment.  That being said, the poorly written AFIs did not help the government’s position.  I expect the AFIs will be amended, making this case something of an anomaly.

  11. The Silver Fox says:

    Livery of seisin

  12. k fischer says:

    Yeah, I’m not so convinced that the Accused had no reason to know that a urinalysis was ordered.  Not familiar with the AFI, but if it is ambiguous, then I guess the rule of lenity should resolve in the Accused’s favor if the rule of lenity applies to ambiguous defenses.  Nonetheless, the accused has earned a nomination for the 2015 “slicky boy” award. 
     
    Former TC, it’s probably to his benefit that they court-martial’d him.  Otherwise, he would have gotten an OTH from the rubberstamp Admin sep board advised by the admin law newbie doing his best to position himself for the next TC slot.

  13. AF JAG says:

    I’d take the board OTH over the federal conviction any day of the week. 

  14. k fischer says:

    Silver Fox,
     
    Concur.  Perhaps there should be a “Livery of Slicksin” award for those who skate on technicalities, although, I applaud his defense attorney for his zealous advocacy.

  15. Concerned Defender says:

    I’ve learned the Air Force does love its drug use court martial hammer.  Having advised countless hundreds of Army Soldiers on their Article 15s with a General Discharge for drug use, it came to me as a shock when I started defending AF drug use in criminal proceedings.
    Seems there should be some continuity between branches with regard to disposition of allegations. 

  16. k fischer says:

    AF JAG,
     
    Of course you would.  You are a lawyer who could go get a job pretty easily.  But, what if you are an enlisted guy who joined for the GI Bill or you had 12 years in?  Would you really care about a misdemeanor drug charge being on your record if you could still go to school or retire as an E-6? 
     
    I’m not condoning this Accused’s drug use because he certainly got caught, well, actually perhaps not because he didn’t get convicted because a military judge ruled the urinalysis inadmissible under the AF limited use policy. But, to opine that an OTH is better than a conviction for this guy might be assuming too much.  Seems like he faired better that the AF attempted to prosecute him.  Can they still administratively separate him with an OTH after a judge at a Court-martial deemed it limited use?
     
    And, it’s good to see you and Silver Fox back.  The defense hackery on this site was becoming a little to much even for me……

  17. Advocaat says:

    I agree from a policy standpoint that most drug use cases should not go to trial, but this isn’t the way to get there.  Under the MJ’s/majority’s reasoning, this accused could not even get NJP…for heroin use.

  18. DCGoneGalt says:

    Advocaat:  It is a policy choice to encourage self-reporting to eliminate UCMJ, but not administrative, action against a member.  The admission also cannot be used to downgrade the discharge.  I have seen honorable discharges when the sole basis is drug use made under the self-reporting exception.  AFI 44-121 paragraph 3.7.1.2.3.

  19. DCGoneGalt says:

    Advocaat:  It is designed to encourage self-reporting to eliminate UCMJ, but not administrative, action against a member.  The admission also cannot be used to downgrade the discharge.  I have seen honorable discharges when the sole basis is drug use made under the self-reporting exception.  AFI 44-121 paragraph 3.7.1.2.3.

  20. Advocaat says:

     DCGG, I don’t have a problem with Airmen who come forward on their own getting the protection afforded by the AFI.  Waiting until the orderly room calls is too late.

  21. Judge Advocate Dredd says:

    If you read the opinion, it looks like the court was signaling that they don’t agree with the MJ’s findings of fact, but accepted them because they aren’t clearly erroneous.  If you’re stuck with the facts, as improbable as they appear to be, then this is a more reasonable outcome. 

  22. Government's Self-inflicted Injury says:

    So, the government plays coy – telling this kid that he needs to come to the orderly room for some undisclosed reason.  The kid rightly knows he’s being called to the orderly room to give a urinalysis sample, and takes that fleeting opportunity to self-refer for treatment.  Then, the government wants to pretend that it hadn’t played coy at all, and that there had been an order to provide a urinalysis which was clear and clearly received all along.  Nobody gets to have their cake and eat it to.  As the government, we can either issue an order or not.  We can’t be intentionally vague and then say “well, you know what we meant.”  The government inflicted this injury on itself by playing games with the urinalysis notification process.  A straight forward “report to the orderly room to provide a urinalysis sample” would have resulted in an entirely different outcome in this case.  I’ve never understood all the secrecy surrounding the urinalysis notification process.  If the government’s going to continue pretend like it’s some big secret as to why folks are being called to the orderly room, then this case is what will result again and again.  We did this to ourselves – we shouldn’t be surprised.

  23. DCGoneGalt says:

    Who has an orderly room any more?  From my experience, people get a written order (sometimes accompanied by phone call/email) that orders them to report within 2 hours to the urinalysis facility.  You know you were selected and your supervisor tells you to go ASAP and get it over with. 

  24. stewie says:

    I have my own orderly room down in the basement. I like to set up tanks and play with them.

  25. RY says:

    I now envision Stewie as lord business playing with his sophisticated interlocking devices in his basement…an image I will probably forever associate with his posts now. 

  26. stewie says:

    Everything is awesome.

  27. Government's Self-inflicted Injury says:

    DCGG said:

    Who has an orderly room any more?  From my experience, people get a written order (sometimes accompanied by phone call/email) that orders them to report within 2 hours to the urinalysis facility.  You know you were selected and your supervisor tells you to go ASAP and get it over with. 

    Apparently Appellant’s unit had an orderly room.  From the first fact paragraph of the AFCCA opinion relevant to the merits of the case:

    Appellee was randomly selected for a urinalysis on 2 December 2014. On nine prior occasions, he had provided random urinalysis samples. On this date, Technical Sergeant (TSgt) WH, who worked in Appellee’s orderly room, contacted Appellee’s supervisor to confirm his availability and told the supervisor to inform Appellee that he needed to report to the orderly room. TSgt WH then noted the date and time she notified the supervisor on a pre-signed form letter. The supervisor told Appellee to report to the orderly room; however neither the supervisor nor TSgt WH were allowed to tell him exactly why he needed to report. Appellee did not report to the orderly room that day and did not receive this form. “Appellee did not receive an order from or on behalf of his squadron commander to provide a sample for a random urinalysis, nor did he receive a written order from any commander to provide a urine sample for testing in December 2014.”