CAAFlog » CAAF Grants

On Monday CAAF granted review in this Army case:

No. 19-0252/AR. U.S. v. Tyler Washington. CCA 20170329. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals it is ordered that said petition is granted on the following issue:

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.”

Briefs will be filed under Rule 25.

SHARP is the Army’s Sexual Harassment Assault Response and Prevention program.

No opinion is available on the Army CCA’s website (indicating that the CCA summarily affirmed).

Yesterday CAAF granted review in this Army case:

No. 19-0259/AR. U.S. v. Robert S. Avery. CCA 20140202. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

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.

Briefs will be filed under Rule 25.

The Army CCA’s decision is available here. It does not address preemption.

The preemption doctrine states that Article 134 cannot be used to prosecute conduct covered by Articles 80-132. See ¶ 91.c.(5)(a), Part IV, Manual for Courts-Martial (2019 ed.). See also United States v. Wheeler, 77 M.J. 289 (C.A.A.F. 2018) (CAAFlog case page).

Avery was convicted of communicating indecent language to a child under the age of 16, as an enumerated offense under Article 134. That offense criminalizes the communication of indecent language – without regard to the age of the recipient or any criminal intent – under circumstances that are either prejudicial to good order and discipline or of a nature to bring discredit upon the armed forces, however the MCM authorizes a grater punishment when the recipient is under the age of 16.

Article 120b (2012), in contrast, criminalizes any lewd act with a child, and the definition of a lewd act includes (among other things):

intentionally communicating indecent language to a child by any means, including via any communication technology, with an intent to abuse, humiliate, or degrade any person, or to arouse or gratify the sexual desire of any person

and

any indecent conduct, intentionally done with or in the presence of a child, including via any communication technology, that amounts to a form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations.

CAAF’s review, it seems, will address whether the Government can use the Article 134 offense of indecent language to prosecute an accused for indecent communications when it can’t prove an intent to abuse, humiliate, degrade, or arouse, or when it can’t prove the tender age of the recipient, or both. If CAAF says it can’t, then that would likely cast doubt on the viability of other well-settled Article 134 offenses, such as self-injury without intent to avoid service (see malingering; see also United States v. Caldwell, 72 M.J. 137 (C.A.A.F. 2013) (CAAFlog case page)) and negligent homicide (see murder and manslaughter; see also United States v. Girouard, 70 M.J. 5, 9 (C.A.A.F. 2011), United States v. McMurrin, 70 M.J. 15, 18 (C.A.A.F. 2011), and A Mobius Strip of Citation).

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. Put differently, if a witness testifies about something in court, the rule allows a prior (out-of-court) statement by that same witness to be admitted to prove the thing asserted.

The rule has long allowed a prior statement to be admitted as non-hearsay when the prior statement predated an allegedly recent fabrication or an allegedly improper motive or influence on the in-court testimony. For example, just a few weeks ago in United States v. Frost, 79 M.J. __ (C.A.AF. Jul. 30, 2019) (CAAFlog case page), CAAF addressed the admission of a prior statement by an alleged child victim of rape. The statement was made to a psychotherapist, but a majority of CAAF found that the defense had alleged that the child was improperly influenced by her mother before the child talked to the psychotherapist. Accordingly, the statement was wrongly admitted.

But the federal rule was amended in 2014 to add a new sub-section: 801(d)(1)(B)(ii). The new subsection makes any prior consistent statements of a witness non-hearsay, so long as the prior statement is otherwise admissible for rehabilitation (discussed here). Specifically, the new subsection states that a prior consistent statement is not hearsay when it is offered:

to rehabilitate the declarant’s credibility as a witness when attacked on another ground.

The amendment did not, however, change what statements are otherwise admissible to rehabilitate a witness; the Advisory Committee note on the amendment explains that:

The amendment does not make any consistent statement admissible that was not admissible previously—the only difference is that prior consistent statements otherwise admissible for rehabilitation are now admissible substantively as well.

The amendment was incorporated into the MCM in 2016 (noted here).

The Army CCA addressed the change in a recent published decision in United States v. Finch, 78 M.J. 781 (A. Ct. Crim. App. 2019) (link to slip op.). Writing for a unanimous three-judge panel of the CCA, Judge Wolfe explained that the requirement that the prior statement be admitted to rehabilitate the declarant’s credibility is an important one:

Part (ii) requires rehabilitation of the credibility of a witness.

“Mere repeated telling of the same story is not relevant to whether that story, when told at trial, is true.” McCaskey, 30 M.J. at 192. A prior statement admitted under Mil R. Evid. 801(d)(1)(B)(ii) must rehabilitate the credibility of the witness in order to be admissible under the rule. The fact that a statement was repeated in the past, without more, is not very probative in rehabilitating the credibility of the witness’ in-court testimony.

In general, to be rehabilitative, a prior consistent statement must address the manner in which the witness’ credibility was attacked. In Pierre, the witness was impeached for omitting key facts in his interview notes. The implication was that the witness had either made up the key facts after the interview or had an inaccurate memory about what was said in the interview. 781 F.2d at 334. A formal report that contained the key facts, created shortly after the interview, tended to rebut both implications, and therefore rehabilitated the witness’ credibility.

. . .

In other words, a prior consistent statement admitted under Part (ii) must be probative of some fact at issue. And repetition alone will not meet the offering party’s burden. McCaskey, 30 M.J. at 192; see also Adams, 63 M.J. at 697 n.5.

78 M.J. at 787. Then, applying that law to a prior statement (a videotaped interview with military investigators) by the alleged victim in Finch, Judge Wolfe explained that the statement was admissible under the new Mil. R. Evid. 801(d)(1)(B)(ii) because the defense had implied that the alleged victim’s in-court testimony was inconsistent with her prior statements to the investigators, and that implication “was factually rebutted by watching the interview.” 78 M.J. at 791.

Last week CAAF granted review:

No. 19-0298/AR. U.S. v. David M. Finch. CCA 20170501. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following 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).

Briefs will be filed under Rule 25.

Update: The NMCCA seems to have reached the same conclusion about the meaning of Mil. R. Evid. 801(d)(1)(B)(ii) in United States v. Norwood, __ M.J. __ (N-M. Ct. Crim. App. Aug. 9, 2019) (link to slip op.).

In Rehaif v. United States, 139 S. Ct. 2191 (2019) (SCOTUSblog case page), the Supreme Court held that the word knowingly in 1018 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. Writing for a 7-2 majority of the Court, Justice Breyer explained that:

As a matter of ordinary English grammar, we normally read the statutory term knowingly as applying to all the subsequently listed elements of the crime.

139 S. Ct. at 2196 (marks and citations omitted). In a pointed dissent, Justice Alito (joined by Justice Thomas) excoriated the majority for “casually overturn[ing] the long-established interpretation of an important criminal statute.” 139 S. Ct. at 2201.

Last week CAAF cited Rehaif to grant further review in this Army case:

No. 19-0104/AR. U.S. v. Nicholas E. Davis. CCA 20160069. On consideration of Appellant’s petition for reconsideration of this Court’s order denying the petition for grant of review __ M.J. __ (Daily Journal June 18, 2019), and in light of United States v. Rehaif, 139 S. Ct. 2191, 2196 (2019), it is ordered that the petition for reconsideration is granted, that the order denying the petition for grant of review is vacated, and the petition for grant of review is granted on the following issue:

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(a)(2) (2016).

Briefs will be filed under Rule 25.

The reference to denial of the petition for review is wrong. CAAF granted review in this case in April as a trailer to United States v. McDonald, 78 M.J. 376 (C.A.A.F. Apr. 17, 2019) (CAAFlog case page). CAAF then summarily affirmed in light of McDonald in June, declaring that “military judge did not err in instructing the court members that for the affirmative defense of mistake of fact as to consent to apply, the mistake must have been reasonable as well as honestly held” (noted here).

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On Monday CAAF docketed this certification by the Judge Advocate General of the Air Force:

No. 19-0398/AF. U.S. v. Chase J. Easterly. CCA 39310. Notice is given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 on this date, on the following 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.

Appellant will file a brief under Rule 22(b) in support of said certificate on or before the 28th day of August, 2019.

The AFCCA’s opinion is available here. The appellee, 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, however, 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.

Next, on Tuesday CAAF granted review in this Air Force case:

No. 19-0230/AF. U.S. v. Jordan R. Muller. CCA 39323. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:

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.

Briefs will be filed under Rule 25.

The AFCCA’s opinion is here, but it is a summary disposition. I can, however, report that the first two issues involve an AFCCA rule (Rule 15.5) that gives an appellant only 10 days to move to file a supplemental brief after a case is remanded for anything other than a rehearing, and that the third issue was raised by the Government Division (in its response to the appellant’s petition) as a challenge to the AFCCA’s action that denied the Government Division’s motion to attach a missing prosecution exhibit (the AFCCA instead remanded the case for a certificate of correction under R.C.M. 1104(d), leading to the situation addressed in the first two issues).

CAAF granted review in two cases in Tuesday, both from the Army. The first case is:

No. 19-0158/AR. U.S. v. Malcolm R. Turner. CCA 20160131. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following 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.

Briefs will be filed under Rule 25.

The CCA issued an unpublished decision (available here) that includes the following information:

the specification alleged that:

Appellant, did at or near Clarksville, Tennessee, on or about 1 January 2015, attempt to kill with premeditation, SPC CSG by means of shooting her with a loaded firearm and causing grievous bodily harm.

Appellant argues that the specification does not allege that the premeditated killing was unlawful. See Article 118(b)(1)(c), UCMJ; MCM (2012 ed.), pt. IV, ¶43.b. Appellant contends that servicemembers in the armed forces lawfully commit premeditated killings of enemy combatants on the battlefield. As such, a killing must be unlawful in order for it to be an offense under the UCMJ.

Slip op. at 13. The CCA rejected the claim, concluding that “the Specification of Charge I alleges words of criminality sufficient to inform appellant that he was charged with the offense of attempted premeditated murder,” and 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.” Slip op. at 15.

CAAF reviewed the need to explicitly allege words of criminality (in the context of Articles 133 and 134) in United States v. Reese, 76 M.J. 297 (C.A.A.F. 2017) (CAAFlog case page) (not addressed because case resolved on other grounds), and United States v. Voorhees, __ M.J. __, No. 18-0372/AF (C.A.A.F. 2019) (CAAFlog case page) (use of terms such as inappropriate or unprofessional found sufficient).

The second case is:

No. 19-0192/AR. U.S. v. Lamont S. Jessie. CCA 20160187. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:

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.

Briefs will be filed under Rule 25.

The CCA issued an unpublished but en banc decision, available here.

The case challenges a confinement policy 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. The appellant challenged the application of the policy to him as a denial of his First and Fifth Amendment rights. The policy was changed after the challenge was made.

A majority of the CCA concluded that consideration of the issue (raised in post-trial submissions) “is not an appropriate use of our Article 66(c) authority.” Slip op. at 1. A number of judges dissented, however, on the basis that “the majority adopts an unnecessarily restrictive view of Article 66(c),” and that “by failing to address the alleged error, the majority conducts a flawed review of sentence appropriateness and post-trial delay.” Slip op. at 22.

CAAF recently addressed the Article 66 power of the CCAs, affirming that the power is exceptionally broad, in United States v. Chin, 75 M.J. 220 (C.A.A.F. 2016) (CAAFlog case page) (CCA may grant relief for waived error), and United States v. Kelly, 77 M.J. 404 (C.A.A.F. 2018) (CAAFlog case page) (CCA may reduce mandatory minimum punitive discharge as inappropriate).

On Wednesday CAAF granted review of ordered a response to a Grostefon issue in this Army case:

No. 19-0212/AR. U.S. v. Patrick B. Teer. CCA 20170601. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals and the pleadings filed in the case, it is ordered that Appellee will file a substantive answer to the following issue personally raised by Appellant:

WHETHER THE MILITARY JUDGE ERRED BY FAILING TO RECUSE HIMSELF BASED ON CIRCUMSTANCES THAT, IF KNOWN AT THE TIME OF APPELLANT’S COURT-MARTIAL, WOULD HAVE PROVIDED REASONS TO REASONABLY QUESTION HIS IMPARTIALITY.

Appellee’s answer will be filed within 15 days of the date of this order. A reply may be filed by Appellant within 5 days of Appellee’s answer.

There’s no opinion on the Army CCA’s website (meaning that the CCA summarily affirmed).

On Wednesday CAAF granted review in this Army case:

No. 19-0178/AR. U.S. v. Robert J. Rice. CCA 20160695. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

WHETHER THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT REQUIRES DISMISSAL OF APPELLANT’S CONVICTIONS.

Briefs will be filed under C.A.A.F. R. 25.

The Army CCA issued a published opinion available here and at 78 M.J. 649.

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. But, “for unknown reasons, the government elected to divide various child pornography charges between military prosecutors and prosecutors with the U.S. Attorney’s Office for the Middle District of Pennsylvania. Thus ensued the debacle which we are now compelled to review.” 78 M.J. at 651. And debacle it was, with the CCA remarking that “what happened in this case should not happen again.” 78 M.J. at 652.

Rice was convicted in District Court, by a jury, of various offenses including wrongful possession of child pornography. Then – prior to being sentenced in the District Court – Rice conditionally pleaded guilty (preserving a double jeopardy objection) to wrongful possession of child pornography at a general court-martial. Returning to District Court for sentencing, Rice sought (and won) dismissal of his civil conviction for wrongful possession based on double jeopardy. Then, during appellate review of his court-martial, he sought dismissal of the court-martial conviction too (for the same reason).

The Army court agreed that Rice’s convictions violate the prohibition against double jeopardy, holding that “the government placed [Rice] in jeopardy twice” because his “conviction at the District Court of possessing child pornography necessarily proved every element of being a crime not capital under clause three of Article 134, UCMJ,” and because “an accused may be convicted only once for possessing child pornography under clauses one, two, or three for the same conduct.” 78 M.J. at 654. But that did not win Rice reversal of his court-martial conviction because:

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 (marks and citations omitted).

On Monday CAAF specified review of the following issue in an Army case:

No. 19-0143/AR. U.S. v. Corey N. Wall. CCA 20160235. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following specified 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.

Briefs will be filed under C.A.A.F. R. 25.

The Army CCA’s opinion is available here.

Specialist Wall was convicted of the rape of one woman and the sexual assault of another (both fellow enlisted soldiers), by a general court-martial composed of a military judge alone, and sentenced to confinement for 15 years, reduction to E-1, total forfeitures, and a dishonorable discharge. But during the trial the military judge allowed the prosecution to use the 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). Considering that error on appeal, the CCA found that it was prejudicial for only the sexual assault conviction, and the court set aside that finding and the sentence, authorizing a rehearing. But the CCA also expressed, in a footnote, its

satisf[action] that the sentence adjudged, absent Specification 1 of The Charge, would have been at least a dishonorable discharge and confinement of ten years. See United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986) and United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013). The reassessment being both appropriate and purging the record as it stands of error does not otherwise limit the sentence that may be adjudged at a rehearing. See UCMJ, art. 63.

Slip op. at 8 n.4.

Under Article 66(c) (pre-2019) or Article 66(d)(1) (2019) a CCA “may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as [it] finds correct in law and fact and determines, on the basis of the entire record, should be approved.” The provision has been the subject of deep analysis in recent cases like United States v. Chin, 75 M.J. 220 (C.A.A.F. Apr. 29, 2016) (CAAFlog case page), and United States v. Nerad, 69 M.J. 138, 144-146 (C.A.A.F. 2010), with CAAF generally upholding its precedent that a CCA has both a duty and the power to conduct a plenary review of a court-martial and may “in the interest of justice, determine that a certain finding or sentence should not be approved.” United States v. Claxton, 32 M.J. 159, 162 (C.A.A.F. 1991). The power is not unlimited, however, and the CCAs sometimes press the limits. One recent example is found in the issue certified by the Judge Advocate General of the Air Force in United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012) (CAAFlog case page):

Whether the Air Force Court of Criminal Appeals erred in finding appellee’s sentence inappropriately severe under the unique circumstances of this case and erred in an attempt at exercising appellate clemency by remanding the case to the convening authority with instructions that the convening authority may approve an adjudged sentence no greater than a suspended bad conduct discharge and a reduction to the grade of E-1.

A majority of CAAF did not address that issue when it decided Humphries (though two dissenting judges would have decided it against the CCA). But with the specified issue in Wall, CAAF has presented itself with substantially the same question.

Last Thursday CAAF granted review in two cases.

The first is from the Navy:

No. 19-0086/NA. U.S. v. Pedro M. Bess, Jr. CCA 201300311. On consideration of Appellant’s petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:

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

Briefs will be filed under C.A.A.F. R. 25.

The NMCCA’s decision is here. This is CAAF’s second review in this case, the court having previously reversed the conviction 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. 2016) (CAAFlog case page). Now, having been re-convicted, Bess challenges the racial composition of the court-martial, asserting that the convening authority excluded members from the panel on the basis of race. The NMCCA rejected the asserted error, however, observing that:

the appellant has not met his initial burden. With the exception of the one member’s questionnaire that had a racial or ethnicity identifying question and response, there is no evidence that the CA [convening authority] knew the race of any of the other nine members detailed to the court-martial. Again, we observe that none of the members listed Navy Region Mid-Atlantic as their parent command on their member questionnaires. As all of the members denied personally knowing the CA during voir dire, we have no reason to suspect that the CA personally knew them and would therefore have known their race. This court cannot even be sure of the members’ race as the record is absent of any questions posed during voir dire to the members by either counsel or the military judge regarding the members’ racial or ethnic background.

Slip op. at 15-16.

The second is from the Army:

No. 19-0139/AR. U.S. v. Alan S. Guardado. CCA 20140014. On consideration of Appellant’s petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

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.

Briefs will be filed under C.A.A.F. R. 25.

The CCA’s opinion is here. Again, this is CAAF’s second review in this case, the court having previously addressed a Hills error in United States v. Guardado, 77 M.J. 90 (C.A.A.F. 2017) (CAAFlog case page). The granted issues addresses application of CAAF’s decision in Howell v. United States, 75 M.J. 386 (C.A.A.F. 2016) (CAAFlog case page), however Howell is not mentioned in the CCA’s decision.

Last week CAAF granted review in an Army case and the Judge Advocate General of the Air Force filed a cross-certification in a case in which CAAF granted review last month.

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Yesterday CAAF granted review in this Army case:

No. 19-0050/AR. U.S. v. Luke D. English. CCA 20160510. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following assigned issue:

WHETHER THE ARMY COURT OF CRIMINAL APPEALS CAN FIND THE UNLAWFUL FORCE, AS ALLEGED, FACTUALLY INSUFFICIENT AND STILL AFFIRM THE FINDING BASED ON A THEORY OF CRIMINALITY NOT PRESENTED AT TRIAL.

Briefs will be filed under C.A.A.F. R. 25.

The CCA’s opinion is available here. It primarily addressed the military judge’s erroneous admission of a hearsay statement as a recorded recollection under Mil. R. Evid. 803(5). But the CCA also found part of one of the convictions to be factually insufficient:

Notwithstanding the credit we give to DE’s version of events, the evidence still has to support the charging language. With respect to some of the language in Specification 6 of Charge I, the record of trial is completely silent. Specification 6 of Charge I reads as follows:

[In that appellant] [d]id on or about 18 September 2015, at or near Fort Bliss, Texas, commit a sexual act upon Ms. [D.E.], to wit: penetrating her mouth with his penis, by unlawful force to wit: grabbing her head with his hands.

While we find there was sufficient evidence to prove appellant committed the sexual act by unlawful force, there is no evidence that he did so by “grabbing her head with his hands.” Therefore, we will strike that language in our decretal paragraph. . . .

Specification 6 of Charge I, excepting the words “to wit: grabbing her head with his hands,” is AFFIRMED. The findings of guilty as to Additional Charge I and its specifications are SET ASIDE. The remaining findings of guilty are AFFIRMED.

Slip op. at 10-11 (modifications in original). The obvious question is: if there was no evidence that the appellant grabbed the alleged victim with his hands, then what (if any) unlawful force did he use?

Yesterday CAAF granted review in this Army case:

No. 19-0087/AR. U.S. v. Deontray D. Coleman. CCA 20170013. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following assigned issue:

WHETHER SPECIFICATION 1 OF CHARGE VII IS MULTIPLICIOUS WITH SPECIFICATION 1 OF CHARGE I, AS THEY ARE PART OF THE SAME TRANSACTION.

Briefs (on the issue of multiplicity and not unreasonable multiplication of charges) will be filed under C.A.A.F. R. 25.

The CCA’s opinion is available here but does not address the granted issue.

Mil. R. Evid. 404(b) permits admission of evidence of uncharged acts for non-propensity purposes such as proving knowledge, intent, or the existence of a plan.

In the Air Force case of United States v. Hyppolite, No. 39358 (A.F. Ct. Crim. App. Oct. 25, 2018) (link to slip op.), the Air Force CCA considered convictions of unlawful sexual touchings of four individuals where the prosecution was allowed to use each alleged touching as evidence of the accused’s plan to commit the other touchings:

The Government argued . . . that Appellant’s conduct admitted to prove each charged offense could properly be used under Mil. R. Evid. 404(b) as evidence that Appellant had a pattern or common plan of engaging in sexual conduct with his friends after they had been drinking and were asleep or trying to fall asleep.

Slip op. at 8. Of five charged specifications (one of which – specification 2 – resulted in an acquittal) the CCA concluded that some were admissible as evidence of a plan to commit others, but all were not admissible to prove all:

the military judge erred in concluding that evi-dence of sexual contact supporting Specifications 1–3 made more probable a fact of consequence for Specifications 4 and 5 and vice versa.

Slip op. at 11. The CCA then found one conviction (specification 1) factually insufficient and the erroneous 404(b) ruling harmless with respect to the other convictions.

Last week CAAF granted review of the CCA’s finding of harmlessness:

No. 19-0119/AF. U.S. v. Ralph J. Hyppolite, II. CCA 39358. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

WHETHER THE MILITARY JUDGE’S ERRONEOUS ADMISSION OF EVIDENCE REGARDING SPECIFICATIONS 1, 2, AND 3 AS A COMMON PLAN OR SCHEME FOR SPECIFICATIONS 4 AND 5 WAS HARMLESS.

Briefs will be filed under C.A.A.F. R. 25.

Article 120(b)(1)(B) (2012) prohibited sexual assault by causing bodily harm, and the definition of bodily harm included a nonconsensual sexual act or sexual contact. 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), replacing it with a new 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 (strict liability). Accordingly, the mens rea applicable to the offense is an open question. And mens rea is a pretty hot topic these days (it was the #8 Military Justice Story of 2017).

CAAF already granted review to decide the issue, in the Army case of United States v. McDonald, No. 18-0308/AR (grant of review discussed here). The Army CCA also just issued a published decision on the issue, holding that the minimum mens rea applicable to the offense is recklessness, in United States v. Peebles, __ M.J. __, No. 20170044 (A. Ct. Crim. App. Jan 10, 2019) (discussed here).

But last week CAAF granted review in another case involving the same issue:

No. 19-0051/AR. U.S. v. Korey B. Kangich. CCA 20170170. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED IN APPLYING A NEGLIGENT MENS REA TO MAKE OTHERWISE LAWFUL CONDUCT CRIMINAL.

Briefs will be filed under Rule 25.

The CCA summarily affirmed without a written decision. Specialist (E-4) Kangich was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of sexual assault by causing bodily harm, in violation of Article 120(b)(1)(B), where the bodily harm was two nonconsensual sexual acts. He was sentenced to confinement for 24 months, reduction to E-1, and a dishonorable discharge.