CAAFlog » Argument Previews

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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CAAF will hear oral argument in the Army case of United States v. Guardado, No. 19-0139/AR (CAAFlog case page), on Wednesday, October 23, 2019, after the argument in Bess. The court will consider a ruling by the military judge that denied credit for punishment inherent in the loss of pay during the time before a retrial:

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. Three years ago, 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 and a retrial planned, the accused is restored in rank, but the accused is not paid at the restored rate.  The situation was the result of interpretations of governing military pay law by the Defense Finance and Accounting Service (DFAS). A military judge held that paying Howell at the reduced rate prior to the retrial violated Article 13. CAAF agreed that Article 75(a) – which requires restoration of rights and privileges when a court-martial conviction or sentence is reversed – mandates that the accused be paid at the restored rate if the accused is restored to duty pending a rehearing. Nevertheless, CAAF found no violation of Article 13 because it concluded that the Government’s erroneous 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 presents 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 that period of release 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). That’s the Howell violation referenced in the granted issue.

Guardado’s brief claims that the decision to pay him at the E-1 rate was “not in furtherance of a legitimate nonpunitive governmental objection because it is in defiance of this court’s clear and unambiguous ruling [in Howell].” App. Br. at 8. The Government Division’s response acknowledges that Howell interpreted Article 75 to require pay at the reinstated rate, but that the Government is entitled to rely on contrary rulings by the civil courts in military pay claims cases. Gov’t Div. Br. at 9.

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CAAF will hear oral argument in the Navy case of United States v. Bess, No. 19-0086/NA (CAAFlog case page), on Wednesday, October 23, 2019, at 9:30 a.m. The court granted review of three issues involving the racial composition of the court-martial panel:

I. Whether the convening authority’s selection of members violated the equal protection requirements of the Fifth Amendment.

II. Whether the convening authority’s selection of members constituted unlawful command influence.

III. Whether the lower court erred in affirming the military judge’s denial of Appellant’s motion to produce evidence of the racial makeup of potential members.

Hospital Corpsman (E-5) Bess was convicted twice by court-martial for indecent acts involving him instructing female patients to be naked for x-ray examinations. CAAF reversed the results of first court-martial in 2016 because the military judge provided additional evidence to the members during deliberations without allowing the defense an opportunity to challenge the reliability of that evidence. United States v. Bess, 75 M.J. 70 (C.A.A.F. Jan. 6, 2016) (CAAFlog case page). Bess was retried later that year, and re-convicted of some of the specifications.

Both of Bess’ convictions were by panels of members, which are the military substitute for a jury. The members of a court-martial are selected by the convening authority based on criteria established by Congress in Article 25. Race is not one of those criteria. Nevertheless, the racial composition of the panel is at the heart of the issues before CAAF, and Bess – who is black – offers CAAF the following description of the beginning of his trial:

At the beginning of the trial, a white military judge, asked a white bailiff, to call in the all-white military venire panel. As the white defense attorneys and the white prosecutors stood at attention as the panel members filed in, it was difficult to reassure HM2 Bess as he leaned over to ask, “Why aren’t there any black people?” This all-white panel would hear evidence from the four complaining witnesses in the case—each of them white.

App. Br. at 6 (quoting record).

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CAAF will hear oral argument in the Army case of United States v. Hennis, No. 17-0263/AR (CAAFlog case page), on Tuesday, October 22, 2019, at 9:30 a.m. Hennis is a capital case, CAAF’s review is mandatory, and each side will get 60 minutes (three times the normal 20 minutes) to argue five issues:

I. Whether a break in Appellant’s service foreclosed the exercise of court-martial jurisdiction.

II. Whether the charges arose in the Armed Forces, and fell within the subject matter jurisdiction of a capital court-martial.

III. Whether the court-martial had personal jurisdiction over Appellant.

IV. Whether the military judge denied appellant a meaningful opportunity to present a complete defense.

V. Whether the military judge abused his discretion in restricting defense counsel’s voir dire and in denying defense challenges for cause.

The court-martial conviction and sentencing of Master Sergeant (E-8) Hennis, U.S. Army (Retired) was our #2 military justice story of 2010. That year a general court-martial convicted him of three specifications of premeditated murder and sentenced him to death. The case involved the gruesome rape and murder of Kathryn Eastburn, the wife of an Air Force captain who was out of town on temporary duty, and also the murder of the Eastburn’s two daughters, all of which occurred 25 years earlier, in 1985.

Hennis was tried three times for those crimes: twice by North Carolina and then finally by a court-martial. The first trial resulted in a conviction and death sentence, but it was reversed by the North Carolina Supreme Court in 1988. A retrial resulted in an acquittal in 1989 and Hennis was reinstated in the Army and eventually transferred to the retired list where – like every other regular retiree – Hennis remained subject to the UCMJ. But advances in DNA allowed investigators to determine that sperm found in the body of the murdered woman came from Hennis, and he was recalled to active duty in 2006, tried by court-martial for the murders, convicted, and again sentenced to death. The Army CCA affirmed the findings and sentence in 2016 (discussed here), 75 M.J. 796.

Hennis’ brief to CAAF raises 40 issues, and the five to be argued next were all raised before and rejected by the Army CCA. Broadly, the issues fall into two categories: challenges to the existence of court-martial jurisdiction over Hennis at the time of his court-martial, and challenges to rulings by the military judge.

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CAAF will hear the first oral argument of the October 2019 Term in United States v. Rice, No. 19-0178/AR (CAAFlog case page), on Wednesday, October 16, 2019, at noon, at the J. Reuben Clark Law School at Brigham Young University in Provo, Utah. The court will review the Army CCA’s published decision that found a double jeopardy violation but did not give any remedy, with a single granted issue:

Whether the double jeopardy clause of the Fifth Amendment requires dismissal of Appellant’s convictions.

Colonel (O-6) Rice wrongfully possessed and distributed child pornography. The evidence of his crimes was strong; his wife discovered the materials and reported them to the police. He was eventually prosecuted in both federal court and at a court-martial for reasons that remain unexplained but that the Army CCA described as a “debacle which we are now compelled to review.” United States v. Rice, 78 M.J. 649, 651 (A. Ct. Crim. App. Dec. 18, 2018).

Rice’s misconduct was discovered in 2013. In 2014, he was indicted by a grand jury on two counts of violating 18 U.S.C. § 2252A, one alleging possession of child pornography and the other alleging receipt or distribution of child pornography. In 2015 – while the federal charges were proceeding to trial – charges based on the same misconduct were referred for trial by general court-martial, including three specifications of service discrediting conduct in violation of Article 134 (clause 2) for possessing and distributing child pornography.

After a jury trial, Rice was convicted of both civil offenses on May 6, 2016, but sentencing was deferred. Rice then moved to dismiss the court-martial charges on the basis of double jeopardy, arguing that they were a successive prosecution of one of the two civil offenses. The military judge denied the motion, and Rice entered conditional pleas of guilty (preserving his double jeopardy objection) on October 24, 2016, and was sentenced to confinement for five years and a dismissal. Rice then returned to District Court for sentencing on the federal civil offenses, where he also made a double jeopardy claim. The District Court agreed that the double jeopardy clause was violated and it dismissed the possession conviction on that basis. It did not dismiss the receipt/distribution conviction, and for that offense Rice was sentenced to imprisonment for 142 months (11 years, 10 months).

Rice renewed his double jeopardy objection to the court-martial prosecution on appeal, and the Army CCA agreed that a double jeopardy violation occurred. Specifically, the CCA concluded that Rice’s possession conviction in the District Court was legally duplicative of his court-martial convictions because his possession conviction under 18 U.S.C. § 2252A “necessarily proved every element of being a crime not capital under clause three of Article 134, UCMJ.” 78 M.J. at 654. Yet that conclusion turned on the CCA’s interpretation of the three separate clauses of Article 134 as constituting a single (and singularly broad) offense:

the government may not obtain two convictions at the same court-martial on two specifications that are identical save for what clause of Article 134 is alleged. An accused may be convicted only once for possessing child pornography under clauses one, two, or three for the same conduct. . . .

Clause three of Article 134 incorporates the entire federal criminal code. The three clauses of Article 134 are disjunctive, and therefore it does not matter for Blockburger purposes which terminal elements are alleged because all three may be alleged and only one need be proven in any given specification. See Williams, 78 M.J. at 546-47. Thus, under the unique circumstances of appellant’s two prosecutions, the elements of his District Court conviction for possession of child pornography were duplicated in each of his court-martial convictions for possession of child pornography. The government placed appellant in jeopardy twice.

78 M.J. at 654. Nevertheless, despite finding a double jeopardy violation the CCA granted Rice no relief on the basis that doing so would be an undeserved windfall:

appellant sought and received dismissal of the District Court possession count that caused a double jeopardy violation. Appellant’s motion to the District Court was predicated on the court’s inability to render a lawful sentence. Appellant, however, went beyond asking merely that no sentence be imposed, and sought dismissal of the possession count entirely. Once appellant secured dismissal of the possession count on grounds unrelated to his factual guilt or innocence, the United States was free to pursue other charges based on the same course of conduct.

Thus, while we agree appellant was subjected to jeopardy twice, we conclude he has already received his remedy and is not entitled to what the Supreme Court has described as an “unjustified windfall[].”

78 M.J. at 656 (citations omitted).

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CAAF will hear oral argument in the Air Force case of United States v. Voorhees, No. 18-0372/AF (CAAFlog case page), on Wednesday, February 20, 2019, after the argument in Tovarchavez. Three granted issues question the mens rea necessary to commit conduct unbecoming an officer and gentleman and the propriety of numerous aspects of the prosecution’s closing argument:

I. Whether the AFCCA erred in finding no plain error despite trial counsel’s argument on findings that personally attacked appellant and trial defense counsel, commented on Appellant’s silence, expressed his personal opinions, bolstered his own credibility, vouched for government witnesses, speculated, and made reference to facts not in evidence.

II. Whether the AFCCA erred in finding that the specifications alleging violations of Article 133, UCMJ, stated an offense despite the fact that they lack words of criminality or a mens rea.

III. Whether plain error occurred when the military judge failed to instruct the members that mens rea was an element of an offense under Article 133.

Major (O-4) Voorhees was convicted by a general court-martial composed of members of one specification of sexual assault and five specifications of conduct unbecoming an officer and gentleman, in violation of Articles 120 and 133. The conduct unbecoming specifications alleged that Voorhees had inappropriate communications with three women (four specifications) and that he massaged the back of one of them (an enlisted Airman). The sexual assault conviction involved intercourse with one of the women, but was reversed by the Air Force CCA as factually insufficient in 2016. The CCA ordered a sentence rehearing, and Voorhees was sentenced to a reprimand and to be dismissed. The CCA affirmed the revised sentence last year.

On appeal, Voorhees challenged the sufficiency of the Article 133 specifications to state an offense and also the prosecution’s closing argument as improper. The CCA rejected the challenges in its 2016 opinion, and CAAF is now reviewing that decision.

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CAAF will hear oral argument in the Army case of United States v. Tovarchavez, No. 18-0371/AR (CAAFlog case page), on Wednesday, February 20, 2019, at 9:30 a.m. A single granted issue challenges the standard applied by the Army CCA when it affirmed a sexual assault conviction after concluding that the improper use of charged offenses for propensity purposes – a constitutional error identified by CAAF in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page) – was harmless but not harmless beyond a reasonable doubt:

Whether the Army Court erred, first, in finding that this Court overruled sub silencio the Supreme Court holding in Chapman v. California, 386 U.S. 18, 24 (1967), and this Court’s own holdings in United States v. Wolford, 62 M.J. 418, 420 (C.A.A.F. 2006), and in United States v. Hills, 75 M.J. 350, 357 (C.A.A.F. 2016), and, consequently, in testing for prejudice in this case using the standard for nonconstitutional error.

Specialist (E-4) Tovarchavez was charged with sexually assaulting another soldier on two occasions. The military judge instructed the members that they could use the charged offenses as evidence of Tovarchavez’s propensity to commit the charged offenses (the Hills error), and the defense did not object. Tovarchavez was then convicted of one of the two charged offenses and sentenced to confinement for two years, reduction to E-1, total forfeitures, and a dishonorable discharge.

The Army CCA issued two opinions in this case. The first (available here) was issued on September 7, 2017, and found the Hills error to be harmless. But the CCA also ordered a DuBay hearing to consider a claim of ineffective assistance of counsel. After the DuBay hearing, the CCA issued a second opinion (available here) that reconsidered the Hills error, leading to CAAF’s grant.

Because Tovarchavez’s defense counsel didn’t object (and, in fact, affirmatively stated that the defense had no objection) to the improper propensity instruction, the error was forfeited and the plain error test applies. The plain error test penalizes the failure to object by shifting the burden on appeal to the appellant, forcing him to show that there (1) was an error, (2) that is plain or obvious, and (3) that caused material prejudice to a substantial right. But the requirement of material prejudice to a substantial right is not unique to the plain error test in military law; Article 59(a) states that:

A finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.

Put differently, if a legal error is harmless then a court-martial conviction may not be reversed. How harmless, however, depends on the error. For an ordinary error, mere harmlessness is enough; the error is not prejudicial (and the conviction may not be reversed) “if the factfinder was not influenced by it, or if the error had only a slight effect on the resolution of the issues of the case.” United States v. Muirhead, 51 M.J. 94, 97 (C.A.A.F. 1999). But if the error affects a constitutional right, then a heightened standard applies; the error is prejudicial unless it is harmless beyond a reasonable doubt. And “an error is not harmless beyond a reasonable doubt when there is a reasonable possibility that the error complained of might have contributed to the conviction.” Hills, 75 M.J. at 357-58 (marks and citations omitted).

A Hills error is constitutional error. Nevertheless, in the CCA’s second opinion in Tovarchavez, a two-judge majority of a three-judge panel of the Army CCA applied the lower standard of mere harmlessness (and not the higher standard of harmlessness beyond a reasonable doubt) to that error, in part because the error was forfeited by the failure to object at trial. The majority found the error harmless and affirmed the conviction, but it also explained that the error was not harmless beyond a reasonable doubt. Accordingly, the outcome of the case hinges on which standard of harmlessness applies.

Tovarchavez’s brief presents two simple propositions: “the Supreme Court[‘s] decision in Chapman v. California . . . established harmless beyond a reasonable doubt as the test for prejudice when constitutional error was not preserved at trial,” and “the Supreme Court also forbade lower courts from departing from the test announced in Chapman in favor of a competing definition of harmless error.” App. Br. at 7. Accordingly, argues Tovarchavez, the applicable standard for harmlessness is harmlessness beyond a reasonable doubt and only the Supreme Court can change that.

The Government Divison’s brief asserts that the law is not so clear.

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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.

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CAAF will hear oral argument in the Army case of United States v. McDonald, No. 18-0308/AR (CAAFlog case page), on Tuesday, February 19, 2019, at 9:30 a.m. The court granted review of the following issue about the minimum mens rea (mental state) necessary to commit the offense of sexual assault by causing bodily harm where the bodily harm is a nonconsensual sexual act:

Whether the military judge erred in instructing the panel that a negligent mens rea was sufficient to make otherwise lawful conduct criminal.

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. McDonald (and a second case presenting substantially the same issue) involves Article 120(b)(1)(B) (2012), which prohibited sexual assault by causing bodily harm, and the definition of bodily harm included a nonconsensual sexual act or sexual contact. Put differently, since nonconsensual sexual activity is generally considered to be the definition of sexual assault, the statute functionally prohibited sexual assault by causing sexual assault. Congress repealed that offense in Section 5430 of the Military Justice Act of 2016 (that became effective on January 1, 2019), but it replaced it with a new-but-similar Article 120(b)(2)(A) that prohibits “commit[ting] a sexual act upon another person without the consent of the other person.”

In neither offense, however, did Congress identify a specific mens rea. Put differently, Congress didn’t say whether – to be guilty of the offense – an accused must actually know that the other person didn’t consent (actual knowledge), or recklessly disregard evidence of lack or consent (recklessness), or just fail to discover that the other person didn’t consent (negligence). Congress also could have said (but didn’t say) that the accused’s knowledge doesn’t matter at all (strict liability). Accordingly, the mens rea applicable to the offense is an open question.

CAAF granted review in McDonald back in September (noted here), and since then two CCAs have issued decisions addressing the issue. First, in United States v. Patrick, __ M.J. __ (N.M. Ct. Crim. App. Dec. 11, 2018) (link to slip op.), the NMCCA held that the applicable mens rea is found in the definition of sexual act which required (under the facts of that case) an intent to abuse, humiliate, harass, or degrade. A month later, in United States v. Peebles, __ M.J. __, No. 20170044 (A. Ct. Crim. App. Jan 10, 2019) (link to slip op.), the Army CCA rejected the NMCCA’s reasoning and held that “recklessness is the mens rea applicable to the element of non-consent in Article 120(b)(l)(B), where the bodily harm is alleged to be the sexual act itself.”

The facts of McDonald, however, present the possibility that CAAF won’t immediately resolve the split between the Army and Navy-Marine Corps CCA.

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CAAF will hear oral argument in the Air Force case of United States v. Meakin, No. 18-0339/AF (CAAFlog case page), on Wednesday, January 23, 2019, after the argument in Hutchins. The court granted oral argument of one issue:

Whether Appellant’s conviction for engaging in anonymous, private, and consensual communications with an unknown partner(s) in the privacy of his home was legally sufficient.

Lieutenant Colonel (O-5) Meakin was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of seventeen specifications of conduct unbecoming an officer and a gentleman, and sentenced to confinement for 20 months, total forfeitures, and a dismissal. Meakin’s convictions were based on his online chats with unidentified individuals about sexual fantasies involving children. Separate from his court-martial prosecution, Meakin also pleaded guilty in federal court to knowingly accessing child pornography (but those offenses are seemingly unrelated).

Meakin argued at the court-martial that the charges must be dismissed because his communications were private and protected by the First Amendment, and Meakin renews that argument at CAAF. His brief acknowledges that he “communicated repugnant sexual fantasies involving children,” App. Br. at 15, nevertheless he asserts that the evidence fails to meet the heightened burden of proof required for a conviction of conduct unbecoming based on constitutionally-protected activity.

CAAF’s review involves a two-step process. First it must determine whether Meakin’s chats were protected speech. Then, if they were, CAAF must determine if the prosecution proved that a “clear and present danger that the speech will, in dishonoring or disgracing the officer personally, seriously compromise the person’s standing as an officer.” United States v. Hartwig, 39 M.J. 125, 128 (C.A.A.F. 1994) (marks and citation omitted).

Yet Meakin’s brief argues for a third step in the process: that CAAF “may undertake to determine whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.” App. Br. at 40 (quoting United States v. Rapert, 75 M.J. 164, 171 (C.A.A.F. 2016) (CAAFlog case page)) (marks and citations omitted).

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CAAF will hear oral argument in the Marine Corps case of United States v. Hutchins, No. 18-0234/MC (CAAFlog case page), on Wednesday, January 23, 2019, at 9:30 a.m. This is CAAF’s third review of the long-running prosecution of Sergeant (E-5) Hutchins for his participation in a 2006 kidnap-murder conspiracy in Iraq that is colloquially known as the Hamdania incident.

Hutchins was first convicted in 2007 of conspiracy, false official statement, unpremeditated murder, and larceny. He was sentenced to reduction to E-1, a reprimand, confinement for 15 years, and a dishonorable discharge. The convening authority disapproved the reprimand and all confinement in excess of 11 years.

The Navy-Marine Corps CCA reversed Hutchins’ convictions in 2010 (decision analyzed here), but CAAF reversed the CCA’s decision in 2011 (noted here). On remand in 2012, the CCA affirmed the findings and the sentence (noted here). But CAAF reversed that decision too, and then it set aside Hutchins’ convictions and authorized a rehearing in United States v. Hutchins, 72 M.J. 294 (C.A.A.F. 2013) (CAAFlog case page).

The rehearing occurred in 2015, and Hutchins was again convicted of conspiracy, murder, and larceny. The conspiracy conviction, however, implicated conduct of which Hutchins was acquitted at the first trial. Specifically, Hutchins was originally charged with a conspiracy to commit six offenses (larceny, housebreaking, kidnapping, false official statements, murder, and obstructing justice), and the charge alleged 21 overt acts in furtherance of that conspiracy. The members of the first court-martial found Hutchins not guilty of two of the six alleged offenses (housebreaking and kidnapping) and two of the alleged 21 overt acts, and was also acquitted of other charged offenses (including premeditated murder and obstruction of justice). Nevertheless, at the 2015 rehearing the prosecution introduced evidence of all six possible objects of the conspiracy, and it also introduced evidence of the other offenses of which Hutchins was acquitted. The prosecution was allowed to do that because the military judge found that evidence admissible for the limited purpose of proving that Hutchins had a plan to commit the charged offenses (that he had been convicted of committing at the first trial).

Hutchins claims that violated the constitutional prohibition against double jeopardy on the basis of collateral estoppel or issue preclusion (different names for the same thing). The Supreme Court recently explained that:

In criminal prosecutions, as in civil litigation, the issue-preclusion principle means that “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe v. Swenson, 397 U. S. 436, 443 (1970).

Bravo-Fernandez v. United States, 137 S. Ct. 352, 356 (2016). The NMCCA rejected Hutchins’ claim of error, and CAAF granted review of a single issue:

Whether the military judge erred when he denied the defense motion to suppress evidence of conduct for which Appellant had been acquitted at his first trial.

Hutchins argues that the military judge did err, and that the error affected all of the charges and so they should all be dismissed with prejudice and he should be freed from any criminal consequences for his involvement in the killing.

The Navy-Marine Corps Appellate Government Division argues that issue preclusion doesn’t apply to the facts of this case, and also that it doesn’t apply to any rehearing.

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CAAF will hear oral argument in the certified Marine Corps case of United States v. Perkins, No. 18-0365/MC (CAAFlog case page), on Tuesday, January 22, 2019, after the argument in Smith. The Judge Advocate General of the Navy certified two issues to the court, on behalf of the defense:

I. Whether this Court’s holding in United States v. Carter as applied by the Navy-Marine Corps Court of Criminal Appeals in this case, instead of the plain reading of MRE 311(c) this Court applied in United States v. Hoffman, controls in analyzing the applicability of the good faith exception to the exclusionary rule.

II. Whether the military judge erred in denying a defense motion to suppress evidence obtained from a search of Appellant’s home.

Sergeant (E-5) Perkins was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of conspiracy to commit larceny and violation of a general order, and sentenced to reduction to E-1 and a bad-conduct discharge. The conspiracy conviction was supported by evidence of stolen military property that was found in the garage of Perkins’ on-base home. The search authorization that gave military investigators access to that garage is at the heart of the case.

Perkins was in a relationship with a woman who alleged to military law enforcement that he was extorting her with nude photos and videos taken without her consent. She told military investigators that she never actually saw Perkins take a picture or video of her, but she said she once saw him use his cell phone during sexual activity and she also claimed that he had other electronic devices in his home capable of storing pictures and videos. Based on that information, and knowing that Perkins was out of town and had his cell phone with him, military investigators sought and received a search authorization to search Perkins’ home for other devices. They found no illicit pictures or videos in the house, but they did find evidence of other misconduct.

Perkins moved to suppress that other evidence, arguing that the search of his home lacked probable cause. The military judge denied the motion. On appeal, however, the Navy-Marine Corps CCA agreed with Perkins that there was no probable cause to search his home, concluding (in a published opinion) that there was no substantial basis for the commander who authorized the search to conclude that there was a fair probability that investigators would find illicit images or videos in the house. United States v. Perkins, 78 M.J. 550, 557 (N-M Ct. Crim. App. 2018) (link to slip op.). Nevertheless, the CCA affirmed admission of the evidence by applying the good faith exception.

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