CAAF decided the Army case of United States v. Davis, __ M.J. __, No. 19-0104/AR (CAAFlog case page) (link to slip op.), on February 12, 2020. After granting reconsideration in order to consider whether the Supreme Court’s decision in United States v. Rehaif, 139 S. Ct. 2191, 2196 (2019), affects the meaning of the word knowingly in the offense of indecent recording in violation of Article 120c(a)(2), CAAF does not actually answer that question. Rather, the court finds that the issue was waived when the defense did not object to the military judge’s instructions at trial.

Chief Judge Stucky writes for a unanimous court. Judge Maggs also writes a separate concurring opinion.

The granted issue asked:

Whether the mens rea of “knowingly” applies to the consent element of Article 120c(a)(2), Uniform Code of Military Justice, 10 U.S.C. § 920c(2) (2016).

A general court-martial composed of officer members convicted Private (E-2) Davis of indecent recording in violation of Article 120c(a)(2) for videorecording part of a sexual encounter involving himself and two other soldiers. Indecent recording occurs when a person “knowingly photographs, videotapes, films, or records by any means the private area of another person, without that other person’s consent and under circumstances in which that other person has a reasonable expectation of privacy.” 10 U.S.C. § 920c(a)(2). The question CAAF granted review to decide is whether the word knowingly applies to the consent element. In other words, whether the prosecution had to prove that Davis actually knew that the person recorded did not consent to the recording.

The military judge did not instruct the members that the prosecution had to prove actual knowledge, and Davis’ defense counsel did not object to the instructions when the military judge asked if there was any objection (a routine question found in paragraphs 2-5-8 and 2-5-14 of the Military Judge’s Benchbook). CAAF has consistently treated such a failure to object as – at most – merely forfeiting any objection to the instructions (making it harder to win on appeal) rather than waiving the issue (meaning that there is no error to correct on appeal). See, e.g., United States v. Haverty, 76 M.J. 199, 208 (C.A.A.F. 2017) (CAAFlog case page) (citing United States v. Payne, 73 M.J. 19, 22-23 (C.A.A.F. 2014) (CAAFlog case page) (citing United States v. Tunstall, 72 M.J. 191, 193 (C.A.A.F. 2013) (CAAFlog case page) (citing United States v. Wilkins, 71 M.J. 410, 412 (C.A.A.F. 2012) (CAAFlog case page) (citing United States v. Arriaga, 70 M.J. 51, 54 (C.A.A.F. 2011))))).

Such treatment was in accordance with the Rules for Courts-Martial, which stated:

Failure to object to an instruction or to omission of an instruction before the members close to deliberate constitutes waiver of the objection in the absence of plain error.

R.C.M. 920(f), Manual for Courts-Martial (2016 ed.) (emphasis added). Plain error is the standard for forfeited error, and CAAF acknowledges that the reference to plain error in the rule made it a forfeiture rule and not a waiver rule (despite the rule’s use of the word waiver). See United States v. Davis, 76 M.J. 224, 227 n.1 (C.A.A.F. 2017) (CAAFlog case page) (R.C.M. 920(f) uses the word ‘waiver,’ but it is clearly referring to ‘forfeiture.'”). But if there were any doubt that the rule applies forfeiture and not waiver, the President made it clear in the 2019 edition of the Manual:

(f) Forfeiture and objections. Failure to object to an instruction or to omission of an instruction before the members close to deliberate forfeits the objection. The parties shall be given the opportunity to be heard on any objection to or request for instructions outside the presence of the members. When a party objects to an instruction, the military judge may require the party objecting to specify in what respect the instructions given were improper.

R.C.M. 920(f), Manual for Courts-Martial (2019 ed.) (emphasis added). CAAF’s precedent actually goes quite a bit further, explaining that instructions on the elements of the offense (like the mens rea issue presented in this case) are required instructions, and that they are not waived by a failure to object. Davis, 76 M.J. at 225. That is so because:

R.C.M. 920(e) lists “Required instructions” on findings, meaning instructions that “shall” be given. This list of required instructions includes the elements of the offense . . . Relatedly, Article 51(c), UCMJ, requires that members be instructed, inter alia, “as to the elements of the offense.” 10 U.S.C. § 851(c) (2012).

Davis, 76 M.J. at 228.

Nevertheless, Chief Judge Stucky’s opinion for the unanimous CAAF abandons all of that precedent (without a single mention of stare decisis or the court’s own test for whether precedent should be abandoned) and undermines the President’s new rule (without even acknowledging it) by declaring that:

By “expressly and unequivocally acquiescing” to the military judge’s instructions, Appellant waived all objections to the instructions, including in regards to the elements of the offense. As Appellant has affirmatively waived any objection to the military judge’s findings instructions, there is nothing left for us to correct on appeal.

Slip op. at 5 (citations omitted). It’s a breathtaking conclusion not just because of the court’s lackadaisical approach, but also because it invites claims of ineffective assistance of counsel in future cases in an effort to “escape rules of waiver and forfeiture and raise issues not presented at trial.” Harrington v. Richter, 562 U.S. 86, 105 (2011).

Waiver is the intentional relinquishment of a known right. Waiver is distinct from forfeiture, which is the failure to preserve an error with a timely objection. Whether an error is preserved (by objection), forfeited (by failure to object), or waived (by intentional and knowing relinquishment) affects the entitlement to relief from the error. An appellant is entitled to relief from a preserved, non-harmless error. An appellant is also entitled to relief from a forfeited error upon showing that the error was plain, obvious, and prejudicial (the plain error test). However, an appellant is not entitled to relief from a waived error because a waiver means that there is no error.

CAAF’s precedent recognizes two kinds of waiver: “Waiver can occur either by operation of law or by the intentional relinquishment or abandonment of a known right.” United States v. Jones, 78 M.J. 37, 44 (C.A.A.F. 2018) (CAAFlog case page). Waiver by operation of law is waiver that occurs because of a rule that states that the failure to object constitutes waiver. For example, last year in United States v. Smith, 78 M.J. 325 (C.A.A.F. Feb. 22, 2019) (CAAFlog case page), CAAF found that a defense motion to suppress the fruits of a search serves to waive all bases for suppression not raised due to the language of Mil. R. Evid. 311(d); the mere failure to raise a basis will waive that basis. In contrast, waiver by the intentional relinquishment or abandonment of a known right – also known as affirmative waiver – involves an affirmative act by the accused (whose rights are at stake). For example, last year in United States v. Cooper, 78 M.J. 283 (C.A.A.F. Feb. 12, 2019) (CAAFlog case page), CAAF found that the accused affirmatively waived his right to individual military counsel when the military judge explained that right to him and he said that he did not want to be represented by anyone other than his detailed defense counsel.

Affirmative waiver is, in fact, an integral part of the criminal justice system, as any plea of guilty involves numerous such waivers (of the right to plead not guilty, the right to a trial, the right to present evidence, etc.). CAAF and Supreme Court precedents recognize, however, that affirmative waiver requires affirmative action by an accused, though the degree of action depends on the degree of waiver:

Whether a particular right is waivable; whether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant’s choice must be particularly informed or voluntary, all depend on the right at stake.

United States v. Ahern, 76 M.J. 194, 197 (C.A.A.F. 2017) (CAAFlog case page) (quoting United States v. Girouard, 70 M.J. 5, 10 (C.A.A.F. 2011) (quoting United States v. Olano, 507 U.S. 725, 733 (1993))).

CAAF’s precedent also recognizes the importance of stare decisis (adherence to precedent), particularly with respect to waiver. For example, in United States v. Andrews, 77 M.J. 393 (C.A.A.F. 2018) (CAAFlog case page), the court unanimously rejected a series of decisions by the Army CCA that held that the failure to object to improper argument at trial waived any error. With a thorough, 5-part analysis by Judge Sparks, the court was “compelled to uphold Fletcher and to continue to review unobjected to prosecutorial misconduct and improper argument for plain error.” 77 M.J. at 399.

But CAAF employs no such thoroughness in its opinion in Davis. Rather, Chief Judge Stucky holds that Davis “affirmatively declined to object to the military judge’s instructions,” “expressly and unequivocally acquiesc[ed] to the military judge’s instructions,” and thereby “waived all objections to the instructions,” slip op. at 5, even though Davis himself said nothing and his defense counsel merely stated that he had no objection after consulting with the assistant defense counsel (but not with Davis). As Chief Judge Stucky’s opinion reveals:

Before issuing the above instructions to the panel, the military judge explained to counsel for both parties the instructions that he chose to give, including the consent element instruction. Afterwards, the military judge asked whether the defense had any objections or requests for additional instructions. After consulting with the assistant defense counsel, the defense counsel answered, “No changes, sir.” After the military judge granted a finding of not guilty on one of the specifications and marked the instructions as an appellate exhibit, he again asked the defense if there were any objections to the findings instructions. The defense counsel replied: “No, Your Honor.”

Slip op. at 4. CAAF finds affirmative waiver in that exchange without identifying the right at stake, without finding the right waivable, without considering whether Davis must personally participate in the waiver (which he clearly did not do), and without considering whether any procedures are required for such a waiver (particularly in the military environment where everyone involved in the trial far outranked the junior-enlisted accused). Contra Olano, 507 U.S. at 733 (requiring consideration of all those things).

That finding includes a footnote with a citation to a 10th Circuit case from 2008 that purports to show that “other federal courts have ruled similarly.” Slip op. at 5 n.2 (citing United States v. Smith, 531 F.3d 1261, 1268 (10th Cir. 2008) (available here)). But the decision in Smith presents a fundamentally different scenario involving the admission of evidence where the defense not only did not object, but also used the evidence as part of the defense. Smith also distinguished the defense’s use of the evidence from “an accidental or negligent failure to raise an objection,” 531 F.3d at 1268, while Davis certainly seems to involve such accident or negligence. Furthermore, the circumstances of Smith – where the defense wanted to both use the evidence at trial and then claim error in its admission on appeal – are reminiscent of the circumstances of United States v. Armstrong, 77 M.J. 465, 468 (C.A.A.F. 2018) (CAAFlog case page), in which defense counsel answered a military judge’s question about an instruction by stating: “Taking no position on it, judge.” But in Armstrong, CAAF reviewed for plain error.

Yet despite having found affirmative waiver by Davis (who was silent and likely totally ignorant about this issue), Chief Judge Stucky engages in a truly puzzling analysis of something else:

Citing United States v. Haverty, 76 M.J. 199, 208 (C.A.A.F. 2017), Appellant nevertheless asks us to review the granted issue for plain error. We previously have said that “[p]anel instructions are analyzed for plain error based on the law at the time of appeal.” Id. We generally only review the matter for plain error when a new rule of law exists, as “[a]n appellant gets the benefit of changes to the law between the time of trial and the time of his appeal.” United States v. Tovarchavez, 78 M.J. 458, 462 (C.A.A.F. 2019); see also United States v. Oliver, 76 M.J. 271, 274 (C.A.A.F. 2017) (“[W]hen there is a new rule of law, when the law was previously unsettled, and when the [trial court] reached a decision contrary to a subsequent rule…it is enough that an error be plain at the time of appellate consideration.” (alterations in original) (internal quotation marks omitted) (quoting Henderson v. United States, 133 S. Ct. 1121, 1130) (2013))).

In this case, however, Appellant was tried after the applicable precedents [FOOTNOTE] were decided, yet affirmatively declined to object to the military judge’s instructions. Appellant’s reliance on Rehaif, 139 S. Ct. 2191, to excuse his waiver is unavailing. There, the Supreme Court held that the trial judge’s findings instructions had inappropriately limited the reach of the statute’s mens rea of “knowingly,” over the appellant’s objection. Id. at 2200. But Rehaif did not create new law. See, e.g., Flores-Figueroa, 556 U.S. at 652–53. As Appellant concedes, it merely reiterated that, “[a]s a matter of ordinary English grammar, we normally read the statutory term “knowingly” as applying to all the subsequently listed elements of the crime.” Rehaif, 139 S. Ct. at 2196 (internal quotation marks omitted) (citation omitted).

Therefore, we cannot review the granted statutory interpretation question because Appellant waived the claim by waiving any objection to the military judge’s instructions regarding the consent element.

Slip op. at 5-6. The footnote adds:

Appellant relies upon several Supreme Court decisions in objecting to the military judge’s instructions regarding the consent element. See Flores-Figueroa v. United States, 556 U.S. 646, 650 (2009); United States v. X-Citement Video, Inc., 513 U.S. 64, 72 (1994); Staples v. United States, 511 U.S. 600, 605 (1994).

Slip op. at 6 n.3. As discussed at the beginning of this post, Haverty is hardly the only basis to claim a plain error standard of review for the failure to object to a military judge’s instructions; there’s also Payne, Tunstall, Wilkins, Arriaga, the old R.C.M. 920(f) (that functionally stated a forfeiture rule), and the new R.C.M. 920(f) (that explicitly states a forfeiture rule). And there’s the other Davis, in which CAAF held that instructions on the elements are required to be given by both statute and rule (and so can be forefeited but not waived by the failure to object). But what’s really puzzling is that Haverty involved application of the Supreme Court’s decision in Elonis v. United States, 135 S. Ct. 2001 (2015), and that case – just like Rehaif – did not actually create new law. Rather, it merely applied longstanding precedent about the general rule for mens rea:

The fact that the statute does not specify any required mental state, however, does not mean that none exists. We have repeatedly held that “mere omission from a criminal enactment of any mention of criminal intent” should not be read “as dispensing with it.” Morissette v. United States, 342 U.S. 246, 250, 72 S. Ct. 240, 96 L. Ed. 288 (1952). . . . Although there are exceptions, the “general rule” is that a guilty mind is “a necessary element in the indictment and proof of every crime.” United States v. Balint, 258 U.S. 250, 251, 42 S. Ct. 301, 66 L. Ed. 604, T.D. 3375 (1922). We therefore generally “interpret[ ] criminal statutes to include broadly applicable scienter requirements, even where the statute by its terms does not contain them.” United States v. X-Citement Video, Inc., 513 U.S. 64, 70, 115 S. Ct. 464, 130 L. Ed. 2d 372 (1994).

Elonis, 135 S. Ct. at 2009 (emphases added). Furthermore, Elonis and Davis both cite to United States v. X-Citement Video, Inc., but to the exact opposite effect!

Judge Maggs’ concurring opinion unpacks this issue a little further, but with no more clarity. He writes that:

The appellant in Haverty could not have intentionally waived his objection to an instruction regarding the required mens rea because the relevant controlling precedent of both this Court and the Supreme Court about the mens rea at issue were decided after the appellant’s court-martial had been completed. See Haverty, 76 M.J. at 208. Thus, Haverty involved more than counsel for both sides merely answering the military judge’s question whether they had any objections in the negative and is therefore distinguishable from this case.

Con. op. at 2. CAAF’s opinion in Haverty did observe that the decision in Elonis (and CAAF’s related opinion in Gifford, where the members were instructed on the highest mens rea of actual knowledge) came after the trial, but that only mattered to the determination that the error was plain and obvious. The standard of review (de novo, plain error, abuse of discretion, etc.), and whether something is an error, are not the same thing. In Haverty CAAF relied on Payne (and its antecedents) for the plain error standard of review, stating (quite explicitly) that:

Because Appellant did not object to the military judge’s failure to instruct the members on a mens rea requirement for the offense of hazing under Article 92, UCMJ, we review this issue for plain error.

Haverty, 76 M.J. at 208 (citing Payne, 73 M.J. at 22-23) (emphases added). Then CAAF explained that whether there is error is based on the law at the time of appeal (even if it was different at trial):

Panel instructions are analyzed for plain error based on the law at the time of appeal.

Haverty, 76 M.J. at 208 (emphasis in original) (citations omitted). Another (poignant) example of this is CAAF’s opinion in United States v. Briggs, 78 M.J. 289, 295 (C.A.A.F. 2019), cert. granted, 140 S. Ct. 519 (2019) (CAAFlog case page) (“Plain error is assessed at the time of appeal.”). Judge Maggs, however, ignores the distinction in Haverty between the standard of review and whether an error is plain.

Judge Maggs’ concurring opinion also highlights what this opinion means for military practitioners (and CAAF’s docket):

The Court’s decision has important consequences for counsel in all future trials before members. In this case, the military judge informed counsel of the instructions that he intended to give. Then, in accord with the script in the Military Judges’ Benchbook, the military judge asked both parties whether they had any objections to the instructions. Both counsel answered in the negative. The Court holds that their answers waived (and not merely forfeited) any objection to the instructions and that this waiver prevents any review of the instructions. Counsel in future cases therefore must be especially careful to raise any objections that they might have to proposed instructions when the military judge asks them—as military judges do in almost every case before members—whether they have any objections.

Con. Op. at 1 (emphasis added). Judge Maggs doesn’t say why counsel must be especially careful, but the answer is found in Chief Judge Stucky’s citation to the 10th Circuit’s decision in Smith: the failure to object invites a claim of ineffective assistance of counsel (because that’s a way – and perhaps the only way – to avoid waiver). The Smith court saw no obvious evidence of ineffective assistance of counsel, but it left full consideration of that issue for later (on collateral review, as is the ordinary practice in the civil courts):

The record on appeal contains nothing from which we would conclude that defense counsel’s decision to rely on the disputed evidence for his own purposes fell outside the wide range of reasonable professional assistance, see Strickland, 466 U.S. at 689, and we thus find the admission of this evidence unreviewable on appeal, see Aptt, 354 F.3d at 1284-85. In so holding, we do not decide the question of ineffective assistance of counsel. We simply conclude, based on the record on appeal, that counsel’s actions constituted a valid waiver of Defendant’s objection to the evidence. See id. As in Aptt, Defendant’s claim of ineffective assistance of counsel “is a matter best considered together with any other ineffective assistance claims [he] might care to raise on collateral attack,” id. at 1285, where the district court can develop a factual record, if necessary, and counsel may offer his reasons for the decision he made at trial, United States v. Nelson, 450 F.3d 1201, 1213 (10th Cir. 2006).

Smith, 531 F.3d at 1268. Military practice is different, however, in that claims of ineffectiveness are typically raised on direct review. CAAF is, in fact, considering one such claim right now, in United States v. Carter, No. 19-0382/AR (CAAFlog case page) (argued the day before yesterday).

Ultimately, CAAF’s decision in Davis marks the clear return of waiver mania (the #3 Military Justice Story of 2017). It is also likely the beginning of an avalanche of claims of ineffective assistance of counsel.

Case Links:
ACCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Blog post: Argument preview
• Oral argument audio (wma)(mp3)
CAAF opinion
Blog post: Opinion analysis

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