CAAF will hear oral argument in the Army case of United States v. Gleason, No. 18-0305/AR (CAAFlog case page), on Tuesday, February 19, 2019, after the argument in McDonald. The court granted review of a single issue:

Whether the Army Court erred by affirming a novel specification covered by an enumerated Art. 134, UCMJ offense.

Last year, in United States v. Reese, 76 M.J. 297 (C.A.A.F. Jun. 14, 2017) (CAAFlog case page), CAAF explained that a novel Article 134 specification must allege an act or omission that is not already an enumerated Article 134 offense, and it reversed a conviction of a novel violation of Article 134 that was intended to charge obstruction of justice but omitted elements of that enumerated offense.

Gleason presents an substantially-identical challenge. Staff Sergeant (E-6) Gleason was convicted of multiple offenses including a novel Article 134 specification alleging that he interfered with the ability of his victim to place a call requesting emergency assistance. Gleason asserts that the novel specification was improper because it eliminated elements of the enumerated Article 134 offense of obstruction of justice.

The novel specification alleged that Gleason did:

on or about 2 March 2014, knowingly and wrongfully interfere with Private First Class J.W.’s ability to place an emergency phone call by taking her telephone from her when she went to call the police. . .

Gov’t Div. Br. at 2-3. Gleason’s brief asserts that:

Private J.W. testified that SSG Gleason took her cellphone when she told him that she would call the police following an assault. (JA at 36). The gravamen of the general article offense here is that SSG Gleason attempted to prevent Private J.W. from reporting to law enforcement the assault which he had committed against her. This new offense covers the same ground as obstruction of justice, which squarely punishes “force or threat of force delaying or preventing communication of information relating to a violation of any criminal statute of the United States…” Id. at ¶ 96.c. This new offense eliminates the President’s requirement that the “act was done with the intent to influence, impede, or otherwise obstruct the due administration of justice,” M.C.M., pt. IV, ¶ 96(b), and substitutes instead a less burdensome proof requirement, devoid of proof of intent.

App. Br. at 4-5.

The Government Division’s response is that Gleason’s conduct was not obstruction of justice:

Appellant’s conduct was not obstruction of justice: the conduct of preventing JW from calling the police for assistance in leaving the house is different than the conduct of preventing JW from calling the police to report his criminal behavior.

Gov’t Div. Br. at 5. A footnote adds:

Many states recognize the differing nature of this conduct and have separate laws for obstructing justice and interfering with emergency calls. See e.g., Ten. Code Ann. § 65-21-117 (2014) (“An individual commits an offense if the individual knowingly prevents another individual from placing a telephone call to 911 or from requesting assistance in an emergency from a law enforcement agency, medical facility, or other agency or entity the primary purpose of which is to provide for the safety of individuals.”).

Gov’t Div. Br. at 5 n.6.

Gleason’s reply brief argues that even if JW was not trying to report a crime, obstruction is still the applicable offense:

The government argues that Appellant’s actions were not ‘“by force or threat of force delaying or preventing communication of information relating to a violation of any criminal statute . . . .’” because J.W.’s subjective desire to obtain police assistance was somehow different from her desire to report a crime. Gov. Br. at 7 citing MCM, pt. IV, ¶ 96.c. This is a distinction without a difference. If, as the government alleges, appellant’s actions prevented J.W. from obtaining police assistance, they also prevented her from reporting a crime. It is impossible to see how J.W. could have informed law enforcement of her need for assistance without also alerting law enforcement to the existence of a crime.

Reply Br. at 2.

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

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