CAAFlog » Argument Previews

CAAF will hear oral argument in the certified Army case of United States v. Moore, No. 20-0119/AR (CAAFlog case page), on Tuesday, March 17, 2020, after the argument in Baas. The case is an interlocutory appeal by the prosecution of a military judge’s ruling that dismissed all of one specification and part of a second specification for violation of the statute of limitations based on a post-referral major change. The Judge Advocate General of the Army certified one issue to CAAF:

Did the army court err when, upon reconsideration, it determined that the 5-year statute of limitations barred the rehearing of the two sexual assault specifications?

Staff Sergeant (E-6) Moore was convicted, by a general court-martial composed of officer members, of two specifications of violating a no-contact order, one specification of assault consummated by a battery of his stepdaughter, and six specifications of sexually assaulting his stepdaughter. The panel sentenced Moore to confinement for 20 years, total forfeitures, reduction to E-1, and a dishonorable discharge. On review, in an opinion available here, the Army CCA reversed five of the six convictions of sexual assault because of a Hills error, but it affirmed one conviction because it found the evidence for that allegation to be overwhelming. The CCA then authorized a rehearing, and CAAF summarily affirmed. The CCA also observed that at any such rehearing, Moore’s affirmed conviction of sexual assault could properly be used as evidence of his propensity to commit the other five alleged offenses.

The case was then returned to the convening authority, who ordered a rehearing. Prior to that, however, Army prosecutors amended the specifications to change the nature of the alleged offense. The specifications (or at least the two specifications in issue at CAAF) alleged sexual assault by causing bodily harm, and the change was to the nature of that bodily harm. Before the change the bodily harm in each allegation consisted of the application of force; after the change the bodily harm was a nonconsensual sexual act.

Those changes ultimately led the military judge to find a violation of the statute of limitations, and the prosecution appeals that finding.

The Government Division’s argument focuses on Article 34(c), which permits changing a specification to make it “conform to the substance of the evidence” contained in an Article 32 report. Article 34(c) was the focus of CAAF’s decision last term in United States v. Stout, 79 M.J. 168 (C.A.A.F. Aug. 22, 2019) (CAAFlog case page), in which a majority of the court applied the statute to affirm modified specifications notwithstanding language in R.C.M. 603(d) that would have prohibited such changes. Stout was also a case involving a rehearing where the prosecution made significant changes to the specifications, and CAAF’s decision provides a clear exception that – at least in a case such as this – appears to swallow the rule against such changes:

Like this case, Stout involved amendments made prior to a referral to a rehearing to conform specifications with the evidence adduced at an Article 32, UCMJ, investigation held prior to the original trial. Id. at 168-170. Here, just as in Stout, Article 34(c), UCMJ, specifically authorized the amendments and did not require a new preferral. Therefore, because the government neither preferred anew nor had an obligation to do so, Article 43(b)(1), UCMJ, dictates that the statute of limitations remained tolled by the receipt of the preferred specifications by the SCMCA on December 11, 2013.

Gov’t Div. Br. at 21.

Moore’s brief argues that Article 34 is not relevant to the issue in this case.

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

CAAF will hear oral argument in the Marine Corps case of United States v. Baas, No. 19-0377/MC (CAAFlog case page), on Tuesday, March 17, 2020, at 9:30 a.m. The court granted review of two issues involving the admission of a laboratory test result:

I. Did admission of an allegedly positive Diatherix Laboratories test for gonorrhea without testimony at trial of any witness from Diatherix violate the Sixth Amendment confrontation clause?

II. Did the lower court abuse its discretion in admitting an alleged positive Diatherix test result for gonorrhea in a child’s rectal swab-where Diatherix failed to follow its own procedures and the result was of near zero probative value?

Corporal (E-4) Baas was convicted of numerous offenses including rape of a child (his son, who was one year old at the time). The evidence supporting the rape conviction included a positive gonorrhea test of the child. Baas told military law enforcement that he had gonorrhea (a sexually-transmitted disease) and he encouraged them to test the child for it in the belief that the test would exonerate him. Swabs were taken from the child by a pediatrician and sent to Diatherix Laboratories, where a nucleic acid amplification test (NAAT) revealed the positive result. However, the pediatrician who took the swabs explained that the NAAT was a screening test that was susceptible to false positives, and that more reliable tests should be performed to confirm the diagnosis.

Those confirmatory tests were not performed. Rather, the child was treated with antibiotics, rendering further testing impossible. Nevertheless, the prosecution moved to introduce the NAAT result, and the parties litigated its admissibility. The military judge ultimately ruled that the result was admissible because the test was reliable and it was for the members to determine what weight to give the result.

The Navy Marine Corps CCA affirmed, concluding that the Diatherix lab report was nontestimonial (and so could be admitted without calling a witness from the laboratory) because the report was merely a business record of a test conducted primarily for treatment (not law enforcement), the report contained only unambiguous factual matters, and the report was not primarily created for the purpose of introducing it as evidence at trial.

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CAAF will hear oral argument in the Air Force case of United States v. Rich, No. 19-0425/AF (CAAFlog case page), on Monday, March 16, 2020, after the argument in Prasad. Two granted issues question whether the defense of mistake of fact as to consent applies to a charge of sexual assault by inducing a belief by any artifice, pretense, or concealment that the accused is another person, in violation of Article 120(b)(1)(D) (2012) (relocated to Article 120(b)(1)(C) (2019))):

I. Did the Court of Criminal Appeals err when it found that mistake of fact as to consent is not a special defense “in issue” for the offense of sexual assault by inducing a belief by concealment that Appellant was someone else?

II. If mistake of fact was not a special defense “in issue,” did the military judge abuse his discretion by denying the defense request for an instruction on mistake of fact?

The elements of sexual assault by inducing a belief by any artifice, pretense, or concealment that the accused is another person are: (1) that the accused committed a sexual act upon another person; and (2) that the accused did so by inducing a belief by any artifice, pretense, or concealment that the accused is another person. Senior Airman (E-4) Rich was charged with the offense after a sexual encounter with a female airman who was spending the night in Rich’s home with her boyfriend (also an airman). The woman testified that she awoke to a person removing her clothes and initiating sexual intercourse, and that she thought the person was her boyfriend. She called out her boyfriend’s name twice during the encounter but the person did not respond. It was not until the person kissed her that she realized it was Rich and not her boyfriend. She cried out, and Rich responded by stating that he was drunk and thought she was someone else (his fiancé).

A general court-martial composed of members convicted Rich of sexual assault by inducing a belief by concealment (acquitting him of by artifice or pretense). The members sentenced him to confinement for 60 days, reduction to E-2, a reprimand, and the mandatory minimum dishonorable discharge. The Air Force CCA issued two opinions in the case, both published. First, a three-judge panel issued this opinion (78 M.J. 591), reversing the conviction after concluding that the military judge erred in failing to instruct the members on the defense of mistake of fact. The Air Force Appellate Government Division then sought reconsideration, and the CCA sitting en banc granted reconsideration, vacated the panel’s decision, and split evenly (4-4) over whether the failure to give the instruction was error, in a second published decision available here (79 M.J. 572). As a result, the CCA en banc affirmed the conviction.

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CAAF will hear oral argument in the Air Force case of United States v. Prasad, No. 19-0412/AF (CAAFlog case page), on Monday, March 16, 2020, at 9:30 a.m. The court granted review of a single issue involving a Hills error:

Whether the Air Force Court erred in its first review of Appellant’s case by affirming the findings of guilt for Specifications 1 and 3 of Charge 1 when it found prejudicial error as a result of a Hills violation.

Airman First Class (E-3) Prasad was convicted of three sexual offenses involving two alleged victims, and the Air Force CCA issued two opinions in the case. In the first opinion (available here), a three-judge panel of the CCA reversed one of the convictions because the military judge improperly instructed the members that they could use charged offenses for propensity purposes (the Hills error). However, two of the three judges found the error harmless with respect to the other two convictions (both involving the same alleged victim). The panel then remanded the case with a rehearing authorized. The convening authority elected to conduct only a sentence rehearing, after which the case returned to the CCA for further review. Upon further review, a slightly different three-judge panel (consisting of two of the original three judges) declined to reconsider the first decision and affirmed the new sentence, in an opinion available here.

The granted issue questions whether the Hills error requires reversal of the remaining convictions. Put differently, if the evidence of guilt supporting those convictions is strong enough then the convictions will be affirmed despite the Hills error.

Prasad’s argument focuses on the standard of review in a situation (like this) involving constitutional error, characterizing “the Government’s case []as anything but overwhelming” and insisting that “but for the improper propensity evidence and erroneous instruction, the panel members, in considering only the evidence related to A1C KF, may have harbored reasonable doubt of Appellant’s guilt and found him not guilty.” App. Br. at 12.

The Government Division responds with the argument that the evidence supporting the affirmed convictions “was overwhelming” because:

In addition to the victim’s credible testimony, Appellant corroborated her version of events through a text message exchange that he had with her. The victim directly confronted Appellant about having “fingered her” even after he heard her say no and Appellant admitted to both hearing her say no and to digitally penetrating her after that expression of non-consent.

Gov’t Div. Br. at 6. The Government Division also argues that propensity evidence used to disprove the existence of mistake of fact as to consent is not improper:

Moreover, for Specifications 1 and 3 of Charge I, the only plausible defense was a mistake of fact defense. Given the text messages between Appellant and KF, the elements of penetration and consent were not in issue. The only real issue in controversy was whether Appellant had an honest and reasonable mistake of fact that KF consented to the sexual act and sexual contact. The panel members could not have considered propensity evidence in an improper way in this particular case. The only way in which they could have realistically considered the evidence of other sexual misconduct was to determine that Appellant had an “absence of mistake” which, in fact, would have been an appropriate, non-propensity use of the evidence. See United States v. Hyppolite, 79 M.J. 161 (C.A.A.F. 2019).

. . . At most, the members would have used evidence of other sexual offenses to discount Appellant’s mistake of fact defense, which is a lawful, nonpropensity use of the evidence. This further diminishes any possibility that erroneous propensity instruction prejudiced Appellant. However, as argued above, the evidence in this case already weighed so strongly against a mistake of fact, that the member did not even need to use to the other charged acts to tip the balance to find Appellant guilty.

Gov’t Div. Br. at 20-21. In Hyppolite (CAAFlog case page), a majority of CAAF found no error in a military judge’s Mil. R. Evid. 404(b) ruling allowing the prosecution to use charged offenses as evidence that the accused acted pursuant to a common plan or scheme.

Prasad replies to the Government’s argument by focusing on the trial counsel’s repeated use of the word propensity in closing argument. The trial counsel’s closing argument included the statement:

it’s propensity evidence. And that’s the lens through which you have to view this entire court. He has a propensity not to stop when someone says, no. Five women told him, no, and he kept going. [] The law realizes that people who engage in sexual offenses may have a propensity to commit that crime again and again and again what is what happened here.

Reply Br. at 5 (quoting record) (modification omission in original). And the statement:

you can consider the fact that he doesn’t listen. That he ignores, no.

Reply Br. at 5 (quoting record). Considering that, Prasad argues:

The trial counsel’s reliance on the word “propensity” belies the Government’s suggestion that this argument was no different than “an appropriate, non-propensity use of the evidence” under Mil. R. Evid. 404(b), pursuant to United States v. Hyppolite, 79 M.J. 161 (C.A.A.F. 2019) (Gov. Br. at 20-21). First, “propensity” is the complete opposite of “non-propensity.” Second, the panel members were not instructed to consider the evidence for an “appropriate, nonpropensity purpose.” Third, this argument reveals the Government’s true motive for using Mil. R. Evid. 404(b) with respect to charged misconduct in sexual assault cases—to admit evidence of and argue “propensity” through the back door of Mil. R. Evid. 404(b) because the front door of Mil. R. Evid. 413 has been firmly and permanently closed. The Government’s argument on this point is a red flag that should cause this Court to reconsider its opinion in Hyppolite.

Reply Br. at 6.

Case Links:
AFCCA opinion
AFCCA opinion after sentence rehearing
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

CAAF will hear oral argument in the Army case of United States v. Carter, No. 19-0382/AR (CAAFlog case page), on Tuesday, February 11, 2020, after the argument in Clark. The court granted review of three discrete issues involving some unusual facts:

I. Whether trial defense counsel were ineffective for failing to introduce exculpatory evidence in their possession.

II. Whether the military judge abused his discretion by failing to order a mistrial for the charges and specifications.

III. Whether the military judge committed plain error by admitting evidence of historical cell-site location information. See Carpenter v. United States, 138 S. Ct. 2206 (2018).

Private First Class (E-3) Carter was convicted of numerous offenses by a general court-martial composed of members with enlisted representation, and sentenced to confinement for eight years and a dishonorable discharge. The convictions relate to Carter’s alleged lewd communications with underage females using the KIK messaging application and the pseudonym Julio Carter. But Carter’s brother (who was not in the military) testified telephonically during an Article 32 preliminary hearing that he – and not the appellant – was the one who sent the messages. After that, however, the brother:

ceased communicating with the parties. (JA658). As a result, the day before trial, the defense requested the military judge find [the brother] to be unavailable under Mil. R. Evid. 804(a), in order to introduce his Article 32 sworn prior testimony during trial. (JA055). The military judge granted the motion and ruled the evidence admissible. (JA055).

App. Br. at 7. Then, during opening statements at trial, Carter’s defense counsel told the members that Carter’s brother was the actual wrongdoer, and the defense promised to play the Article 32 testimony for the members:

This case is about someone else, who is not here today. Who, you will hear accepted responsibility for these actions. You will hear testimony that at the preliminary hearing the accused’s brother stated under oath, subject to a penalty of perjury, fully aware that he could be prosecuted in federal court for his crimes and said that his brother is completely innocent of these charges, that he assumed the identity of his brother to meet women. While enjoying the hospitality of his brother who let him stay with him throughout the summer of 2015. That is what this case is about.

App. Br. at 7-8 (quoting record). But, despite the military judge’s ruling that he could present the testimony, and despite promising the members that he would do so, Carter’s military defense counsel did not introduce the brother’s Article 32 testimony.

That’s just one of many remarkable situations presented in this case that the Army CCA described as “involv[ing] mistaken identity, fraternal betrayal, technological mystery, and a healthy dose of bad luck.” United States v. Carter, No. 20160770, slip op. at 1 (A. Ct. Crim. App. Mar. 28, 2019) (link to slip op.).

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CAAF will hear oral argument in the Army case of United States v. Clark, No. 19-0411/AR (CAAFlog case page), on Tuesday, February 11, 2020, at 9:30 a.m. The court granted review of three issues involving R.C.M. 914 (the military version of the Jencks Act, 18 U.S.C. § 3500) and pretrial statements made by military law enforcement agents:

I. Did the military judge err in applying R.C.M. 914?

II. If the military judge erred, under what standard should this Court assess prejudice?

III. Was there prejudice under the applicable standard of review?

Sergeant (E-5) Clark was convicted by a general court-martial composed of members with enlisted representation of making a false official statement, rape of a child, and sexual assault of a child, and sentenced to confinement for twelve years, total forfeitures, reduction to E-1, and a dishonorable discharge.

Suspecting Clark of sexually molesting his daughter, military investigators interrogated him over the course of two days. Clark waived his rights, made damaging admissions, and ultimately gave a confession. Both days of interrogation were video recorded, however the agents failed to preserve the recording of part of the second interrogation (during which Clark made his fullest confession). The defense moved to abate the proceedings under R.C.M. 703(f)(2), Manual for Courts-Martial (2016 ed.) (moved to 703(e)(2) in the 2019 ed.), on the basis that the lost video was essential evidence of the circumstances under which the confession was obtained (and potentially manipulated by the investigators). But the military judge denied the motion, concluding that testimony about the interrogation was an adequate substitute for the recording.

Then, during trial, when the agents testified about the interrogations, the prosecution introduced evidence about the agents’ own statements during the period of the interrogations where the video was lost. That allowed the defense to make a R.C.M. 914 objection to the testimony of the agents, setting the stage for the issues now pending CAAF’s review.

R.C.M. 914 is the military’s version of the Jencks Act (18 U.S.C. § 3500), which requires production of the prior statements of a witness that are related to the subject matter of the witness’ testimony. CAAF last considered the rule in the interlocutory case of United States v. Muwwakkil, 74 M.J. 187 (C.A.A.F. 2015) (CAAFlog case page), and it unanimously affirmed a trial-stage ruling that struck the entire testimony of an alleged victim of sexual assault because the Government lost most of the recording of the alleged victim’s testimony during the Article 32 pretrial investigation. The military judge in Clark, however, held that R.C.M. 914 does not apply to the agents’ questions to Clark during the interrogation.

Clark raised the military judge’s ruling as error on appeal. A three-judge panel of the Army CCA suggested that the military judge was wrong and that R.C.M. 914 does apply to the agents’ questions. Nevertheless, the CCA concluded that any error was harmless because of the strength of the other evidence, including the portions of the interrogations where the video was preserved. In so ruling, the CCA distinguished CAAF’s opinion in Muwwakkil (where the court held that R.C.M. 914 does not require a prejudice analysis to warrant relief) on the basis that Muwwakkil involved an interlocutory review while Clark involves an ordinary (post-conviction) appeal for which Article 59 requires a showing of prejudice.

The three granted issues question the CCA’s decision broadly, asking whether there was error, how to review any error, and if the error was prejudicial. Clark’s brief concedes that CAAF’s review is narrow and that the court should test for prejudice, but argues that his conviction should nevertheless be reversed.

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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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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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CAAF will hear oral argument in the Army case of United States v. Finch, No. 19-0298/AR (CAAFlog case page), on Wednesday, December 4, 2019, after the argument in Easterly. The court granted review of a single issue:

Whether the military judge erred in admitting over defense objection the video-recorded interview of AH by CID because it was not a prior consistent statement under Mil.R.Evid. 801(d)(1)(B).

Specialist (E-4) Finch was convicted by a general court-martial, composed of a military judge alone, of violation of a general regulation, committing lewd acts upon a child, and three specifications of committing a sexual act upon a child, in violation of Articles 92 and 120b. He was sentenced to confinement for six years, reduction to E-1, and a dishonorable discharge.

Finch’s convictions largely hinged on the testimony of his stepdaughter – SH – who said that he sexually assaulted her on two occasions while they were camping. Her allegations were investigated by the Army Criminal Investigation Command (CID), and she gave CID a videotaped interview. That interview was admitted at trial, in its entirety, over defense objection, after the military judge ruled that it was a prior consistent statement under Mil. R. Evid. 801.

Military Rule of Evidence 801(d)(1)(B) – which is identical to Fed. R. Evid. 801(d)(1)(B) – provides situations where a prior consistent statement by a witness is not hearsay. If a witness testifies about something in court, the rule allows a consistent, prior (out-of-court) statement by that same witness to be admitted as proof of the truth of the things said on both occasions (as opposed to a more limited admissibility, such as merely to prove that a prior statement was made).

The rule has two parts: 801(d)(1)(B)(i) and (ii). The first part – 801(d)(1)(b)(i) – has long allowed a prior statement to be admitted as non-hearsay when the prior statement predates an allegedly recent fabrication or an allegedly improper motive or influence on the in-court testimony. CAAF has applied the first part on a number of occasions, including just last term in United States v. Frost, 79 M.J. 104 (C.A.AF. Jul. 30, 2019) (CAAFlog case page). That case also involved a prior statement by an alleged child victim of rape, and a majority of CAAF found that the statement was improperly admitted under Mil. R. Evid. 801(d)(1)(B)(i) because it was made after the alleged improper influence (by the child’s mother). Because the statement did not pre-date the influence, it was not admissible as a prior consistent statement.

The federal rule was amended in 2014 (discussed here) to add the second part: 801(d)(1)(B)(ii). That new subsection makes any prior consistent statements of a witness admissible as non-hearsay so long as the prior statement is otherwise admissible for rehabilitation. The amendment was incorporated into the MCM in 2016 (noted here).

In Finch, the military judge did not state (and the parties at trial seemingly did not argue over) which part of Mil. R. Evid. 801(d)(1)(B) applied to AH’s videotaped interview with CID. Reviewing the military judge’s ruling on appeal, a three-judge panel of the Army CCA found that the interview was admissible under both parts of the rule. In a published decision that includes a lengthy review of the requirements for admission of evidence under both parts of the rule, the CCA first held that the interview was admissible under 801(d)(1)(B)(i):

As the defense theory of the case was that AH had fabricated the claim of sexual assault, this line of attack clearly implied that AH had fabricated new facts after the CID interview.

Accordingly, we conclude that the defense cross-examination of AH opened the door for the government to introduce prior consistent statements to rebut the charge of recent fabrication.

United States v. Finch, 78 M.J. 781, 790 (A. Ct. Crim. App. 2019) (link to slip op.). Then it held that the statement was also admissible under 801(d)(1)(B)(ii):

the defense, at several instances, impeached AH’s testimony as being inconsistent with what she had told Agent JB from CID. . .

The net effect of this cross examination was to attack AH’s credibility by claiming that her testimony was materially different than what she had told Agent JB during an official interview. This attack allowed the government to rehabilitate AH’s credibility under the analysis in Adams and Part (ii) of Mil. R. Evid. 801(d)(1)(B).

Id. at 790-791.

Both of those holdings are raised by the granted issue, but either one of them would allow CAAF to affirm the CCA’s decision and Finch’s convictions.

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CAAF will hear oral argument in the certified Air Force case of United States v. Easterly, No. 19-0398/AF (CAAFlog case page), on Wednesday, December 4, 2019, at 9:30 a.m. The Air Force CCA ordered a sentence rehearing after finding plain error in the failure to instruct the members on the effect of a punitive discharge on a possible disability retirement, and the Judge Advocate General challenged that conclusion with a single issue:

Whether the Air Force Court of Criminal Appeals erred in finding that the military judge committed plain and prejudicial error by failing to instruct the panel sua sponte regarding the impact of a punitive discharge on Appellee’s potential permanent disability retirement where Appellee did not request such an instruction.

Senior Airman (E-4) Easterly, was convicted of attempted premeditated murder and sentenced to confinement for seven years, total forfeitures, reduction to E-1, and a dishonorable discharge. Prior to trial, Easterly was diagnosed with schizophrenia that was found to have been aggravated by his military service and warranted a medical retirement with a 100% disability rating. Those facts were presented during the sentencing phase of the court-martial, but the defense did not request an associated instruction to the members regarding retirement and the military judge did not give such an instruction. The prosecution, however, requested that the members be instructed to disregard any collateral consequences of the conviction, and the members were so instructed. Considering those facts, two out of three judges of a panel of the CCA found that it was plain error for the military judge to fail to give an instruction sua sponte, and the CCA set aside the sentence and authorized a sentence rehearing.

The Air Force Appellate Government Division challenges every aspect of that decision: It argues that there was no error because the record does not support the conclusion that Easterly would have been medically retired but for the punitive discharge; that any error is not plain because plain error under the circumstances requires that the defense actually request an instruction; that the defense had strategic reasons to not want an instruction; that giving an instruction in this case would have unduly interfered with the parties’ presentation of the case; and that any error is harmless because a punitive discharge was virtually certain.

Easterly responds by highlighting how the Government Division’s arguments obliterate the distinction between preserved and forfeited errors, are based on pure speculation of the motives of Easterly’s defense counsel, and misapply the prejudice prong of the plain error test.

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CAAF will hear oral argument in the Army case of United States v. Turner, No. 19-0158/AR (CAAFlog case page), on Wednesday, November 6, 2019, after the argument in Davis. The court granted review of a single issue:

Whether the specification of Charge I alleging an attempted killing fails to state an offense because it does not explicitly, or by necessary implication, allege the attempted killing was unlawful.

Specialist (E-4) Turner was convicted of attempted murder (the specification at issue), conspiracy to commit premeditated murder, maiming, and obstruction of justice, and sentenced to confinement for life without the possibility of parole, reduction to E-1, total forfeitures, and a dishonorable discharge. The Army CCA reversed the obstruction conviction (as factually insufficient) and conditionally dismissed the maiming charge, but affirmed the other findings and affirmed the sentence.

The specification of attempted murder alleged:

In that, Specialist Malcolm R. Turner, U.S. Army, did, at or near Clarksville, Tennessee, on or about 1 January 2015, attempt to kill with premeditation Specialist [C.SG.] by means of shooting her with a loaded firearm, causing grievous bodily injury.

App. Br. at 3 (quoting record) (emphasis omitted) (modification in original). Turner’s defense counsel objected to the specification at trial, asserting that the specification failed to actually state the offense of attempted murder because it did not allege that the attempted killing was unlawful (a necessary element of murder). The military judge overruled the objection and Turner renewed it on appeal, where the Army CCA held that the specification “alleges words of criminality sufficient to inform appellant that he was charged with the offense of attempted premeditated murder,” while observing that “not since the Civil War has Clarksville, Tennessee been close to a combat zone where appellant might claim that an attempted premeditated killing of a fellow American soldier could have been lawful.” United States v. Turner, No. 20160131, slip op. at 15-16 (A. Ct. Crim. App. Nov. 30, 2018). CAAF then granted review.

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CAAF will hear oral argument in the Army case of United States v. Davis, No. 19-0104/AR (CAAFlog case page), on Wednesday, November 6, 2019, at 9 a.m. CAAF granted review of one issue after the Supreme Court decided United States v. Rehaif, 139 S. Ct. 2191, 2196 (2019), and held that the word knowingly in 18 U.S.C. §924(a)(2) – which states the punishment for unlawful possession of a firearm in violation of other statutes – applies to the material elements of the other statutes:

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).

Article 120c(a)(2) – which took effect in 2012 and is unchanged in its current form – prohibits indecent recording. 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.

A reasonable expectation of privacy is defined as a reasonable belief that one’s naked or underwear-clad genitalia, anus, buttocks, or female areola or nipple would not be recorded or visible to the public. See Article 120c(d).

Private (E-2) Davis was convicted of indecent recording for making a video of part of a sexual encounter involving himself and two other soldiers. The video showed Davis having sexual intercourse with one of the soldiers (who later alleged that the encounter was a sexual assault; Davis was acquitted of charges related to that claim). The findings were made by a panel of officer members, and the military judge instructed the members that the offense has four elements, including that Davis knowingly recorded the alleged victim and that the recording was without the consent of the alleged victim. The military judge did not instruct the members that Davis must have known that the alleged victim did not consent to the recording, but did instruct them that it was a defense if Davis has a reasonable mistake of fact belief that she consented.

Mens rea was the #8 Military Justice Story of 2017 because of a series of CAAF decisions involving the mental state required to violate the UCMJ. Davis may be another in that series.

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CAAF will hear oral argument in the Air Force case of United States v. Muller, No. 19-0230/AF (CAAFlog case page), on Tuesday, November 5, 2019, after the argument in Jessie. The court granted review of three issues involving the CCA’s review of a case that was returned to the convening authority because a prosecution exhibit was missing from the record of trial:

I. Whether rule 15.5 of the Air Force Court of Criminal Appeals Rules of Practice and Procedure is invalid because it conflicts with the Uniform Code of Military Justice, this Court’s precedent, the Joint Courts of Criminal Appeals Rules of Practice and Procedure, the recently updated Joint Rules of Appellate Procedure, and the prior and current appellate rules of the other service Courts of Criminal Appeals.

II. Whether the Air Force Court of Criminal Appeals deprived Appellant of his due process right to raise issues on appeal when it denied his timely request to file a supplemental brief on issues arising during remand proceedings.

III. Whether a Court of Criminal Appeals must require certificates of correction to be accomplished, vice accepting documents via a motion to attach, when it finds a record of trial to be incomplete due to a missing exhibit.

Airman First Class (E-3) Muller pleaded guilty to three specifications of violating Article 112a, and was sentenced to confinement for nine months, reduction to E-1, and a bad-conduct discharge. The convening authority approved the sentence as adjudged, and Muller’s detailed appellate defense counsel submitted the case to the Air Force CCA without any assignments of error. The CCA, however, found a problem: prosecution exhibit 7 (an enlisted performance report) was missing from the record of trial. The CCA ordered the Government Division to show cause why the CCA should not return the record to the convening authority for correction, and the Government Division responded by offering a document (purporting to be the missing exhibit) for attachment to the record. The CCA rejected the document and ordered the record returned to the convening authority for correction.

After some delays, the convening authority ordered the military judge to complete a certificate of correction for the missing exhibit. A certificate of correction is a document used to correct a record of trial after authentication of the record by the military judge. See Article 54 (pre-2019); R.C.M. 1104(d), Manual for Courts-Martial (2016 ed.). The authentication process was changed to a certification process in the Military Justice Act of 2016 and the 2019 edition of the Manual for Courts-Martial. See Article 54 (2019); R.C.M. 1112(d), Manual for Courts-Martial (2019 ed.). The new process, however, retains the ability of a military judge to correct a record of trial.

The certificate of correction in Muller was completed and the record was returned to the CCA and the case re-docketed. At that point Muller’s appellate defense counsel sought to file a brief raising two assignments of error; one claiming unlawful command influence in the certificate of correction process and the other asserting unreasonable post-trial delay. The Air Force CCA rejected the brief and summarily affirmed the findings and sentence, and then it denied Muller’s request for reconsideration.

CAAF will review whether the CCA was wrong to reject Muller’s brief and – in an issue apparently raised by the Government Division and that CAAF granted review of without requiring certification by the Judge Advocate General – whether the CCA could have simply attached the missing exhibit to the record without returning it to the convening authority for correction.

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CAAF will hear oral argument in the Army case of United States v. Jessie, No. 19-0192/AR (CAAFlog case page), on Tuesday, November 5, 2019, at 9:30 a.m. The court granted review of three issues involving a policy (since rescinded) of the Joint Regional Confinement Facility (JRCF) at Fort Leavenworth, Kansas, whereby prisoners convicted of child sex offenses were prohibited from having any contact with children, including their own biological children:

I. Whether the Army court erred by considering military confinement policies but refusing to consider specific evidence of Appellant’s confinement conditions.

II. Whether the Army court conducted a valid Article 66 review when it failed to consider Appellant’s constitutional claims.

III. Whether Appellant’s constitutional rights were violated by a confinement facility policy that barred him from all forms of communication with his minor children without an individualized assessment demonstrating that an absolute bar was necessary.

Chief Warrant Officer (CW2) Jessie was convicted contrary to his pleas of not guilty, by a general court-martial composed of members, of two specifications of sexual assault of a child in violation of Article 120b, and was sentenced to confinement for four years, a reprimand, and to be dismissed. The Army CCA affirmed the findings and sentence in an unpublished en banc opinion, available here.

In that opinion, the CCA discussed Jessie’s complaint about a confinement policy that prohibited him from having any contact with children, including his own biological children. The CCA held that it could consider the complaint, but it declined to do so observing, in part:

[A]ppellant’s claim inevitably involves determining the outer limits of what is an acceptable prison policy for familial contact by convicted child sex offenders. That we might consider the claim does not mean we should. This is a claim we are poorly positioned to consider, and that within the structure of the military justice system is better entrusted to a determination by persons other than this Article I court.

United States v. Jessie, No. 20160187, slip op. at 10 (A. Ct. Crim. App. Dec. 28, 2018). CAAF then granted review.

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