CAAFlog » CAAF Grants

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The CCA issued an unpublished decision (available here) that includes the following information: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

Yesterday CAAF granted review in this Army case:

No. 18-0359/AR. U.S. v. Michael L. Haynes, Jr. CCA 20160817. 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 issues:

I. WHETHER AN APPELLANT IS AUTHORIZED TO REQUEST PIERCE CREDIT FOR THE FIRST TIME AT A COURT OF CRIMINAL APPEALS.

II. IF THE ARMY CCA ERRED IN HOLDING THAT THE FAILURE TO REQUEST PIERCE CREDIT BELOW CONSTITUTED WAIVER, WAS ITS ACTUAL REVIEW OF THIS ISSUE UNDER ITS ARTICLE 66(c), UCMJ, AUTHORITY STILL SUFFICIENT?

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

Pierce credit is credit at a court-martial for prior nonjudicial punishment for the same offense. In United States v. Pierce the Court of Military Appeals (CAAF’s predecessor court) concluded that:

It does not follow that a servicemember can be twice punished for the same offense or that the fact of a prior nonjudicial punishment can be exploited by the prosecution at a court-martial for the same conduct. Either consequence would violate the most obvious, fundamental notions of due process of law. Thus, in these rare cases, an accused must be given complete credit for any and all nonjudicial punishment suffered: day-for-day, dollar-for-dollar, stripe-for-stripe.

27 M.J. 367, 369 (C.M.A. 1989) (emphasis in original). More recently, CAAF observed that:

The accused, as gatekeeper, may choose whether to introduce the record of a prior NJP for the same act or omission covered by a court-martial finding and may also choose the forum for making such a presentation.

United States v. Gammons, 51 M.J. 169, 183 (C.A.A.F. 1999). Then, the court explained, the cognizant authority will determine the appropriate credit:

If the accused chooses to raise the issue of credit for prior punishment during an Article 39(a) session rather than on the merits during sentencing, the military judge will adjudicate the specific credit to be applied by the convening authority against the adjudged sentence in a manner similar to adjudication of credit for illegal pretrial confinement. If the accused chooses to raise the issue of credit for prior punishment before the convening authority, the convening authority will identify any credit against the sentence provided on the basis of the prior NJP punishment. Likewise, if the issue is raised before the Court of Criminal Appeals, that court will identify any such credit.

Gammons, 51 M.J. at 184.

The Army CCA issued a published opinion in Haynes available here and at 77 M.J. 753, finding waiver but with a catch:

[W]e read Gammons as requiring an accused to raise the issue of Pierce credit to either the court-martial or to the CA to avoid waiver as a matter of law. If waived, no relief can be obtained as a matter of law from this court. United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009) (explaining that a valid waiver of an issue at trial extinguishes the alleged error on appeal).

Here, appellant waived any entitlement to Pierce credit when he affirmatively told the military judge that he was not entitled to any additional confinement credit and stipulated (see below) that the Article 15 addressed post-preferral misconduct. As cited in Gammons, this is also consistent with R.C.M. 1001(b)(2) (for personnel records of an accused introduced during sentencing, “[o]bjections not asserted are waived”).

77 M.J. at 757, slip op. at 6. The catch is that the CCA found that the stipulated facts preclude any credit, because “the Article 15 and the charged offense addressed separate misconduct.” Haynes, 77 M.J. at 757, slip op. at 6. CAAF has addressed such a situation before, with the explanation that:

[A]lthough Pierce precludes double punishment for the same offense, it does not preclude multiple punishments for multiple offenses. . .

United States v. Bracey, 56 M.J. 387, 389 (C.A.A.F. 2002).

Yesterday CAAF granted review in this Army case:

No. 18-0347/AR. Michael J. Gonzales. CCA 20130849. 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 AGGRAVATED SEXUAL CONTACT OF A CHILD IS A LESSER INCLUDED OFFENSE OF RAPE OF A CHILD.

Briefs will be filed under Rule 25.

The only opinion available on the Army CCA’s website is this one from 2017, in which the CCA set aside the findings and authorized a rehearing because of a Hills error. That opinion addressed convictions for acts alleged to have occurred in 2010 and 2011. At that time Article 120(b) defined the offense of rape of a child as:

(b) Rape of a Child.-Any person subject to this chapter who-

(1) engages in a sexual act with a child who has not attained the age of 12 years; or

(2) engages in a sexual act under the circumstances described in subsection (a) with a child who has attained the age of 12 years;

is guilty of rape of a child and shall be punished as a court-martial may direct.

Additionally, Article 120(g) defined the offense of aggravated sexual contact with a child as:

(g) Aggravated Sexual Contact With a Child.-Any person subject to this chapter who engages in or causes sexual contact with or by another person, if to do so would violate subsection (b) (rape of a child) had the sexual contact been a sexual act, is guilty of aggravated sexual contact with a child and shall be punished as a court-martial may direct.

Sexual act and sexual contact were defined in Article 120(t) as:

(1) Sexual act.-The term “sexual act” means-

(A) contact between the penis and the vulva, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight; or

(B) the penetration, however slight, of the genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.

(2) Sexual contact.-The term “sexual contact” means the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of another person, or intentionally causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, or degrade any person or to arouse or gratify the sexual desire of any person.

On Monday CAAF granted review in this Army case:

No. 18-0364/AR. U.S. v. Michael E. Harris. CCA 20170100. 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 ARMY COURT ERRONEOUSLY AFFIRMED THE MILITARY JUDGE’S DENIAL OF 291 DAYS OF ALLEN CREDIT FOR PRETRIAL CONFINEMENT APPELLANT SERVED IN A CIVILIAN CONFINEMENT FACILITY AWAITING DISPOSITION OF STATE OFFENSES FOR WHICH HE WAS LATER COURT-MARTIALED.

Briefs will be filed under Rule 25.

The appellant was charged with child pornography offenses by the State of Florida and released on bond. He then fled to Cambodia. He was eventually returned to Florida and confined pending trial, but Florida authorities dismissed the case because of witness issues. He was then ordered into pretrial confinement and ultimately pleaded guilty at a general court-martial composed of a military judge alone to wrongful possession of child pornography and desertion. The military judge, however, rejected his request for confinement credit for the time spent in custody in Florida.

Army CCA affirmed in a published decision, available here (78 M.J. 521). It concluded:

The state of Florida did not confine appellant until after he fled to Cambodia and failed to appear to face the Florida child pornography charges. Appellant was charged and placed in pre-trial confinement for the offense of fleeing Florida’s criminal process. The state of Florida was not acting on behalf of the Army and he was not being held in confinement at the request of the Army. The fact appellant’s confinement by the state of Florida exceeded his eventual sentence for the crime of failure to appear does not obligate the Federal government to lessen the appellant’s punishment for different offenses against the Federal sovereign.

78 M.J. at 525.

Last Thursday CAAF granted review in two cases:

No. 18-0350/CG. U.S. v. Michael R. Rodriguez. CCA 1450. On consideration of the petition for grant of review of the decision of the United States Coast Guard Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

WHETHER UNITED STATES v. ORBEN, WHICH ESTABLISHED WHAT THE GOVERNMENT MUST SHOW TO PROVE INTENT FOR INDECENT LIBERTIES UNDER ARTICLE 134 (THE PRECURSOR TO ARTICLE 120b), APPLIES TO THE INTENT ELEMENT OF ARTICLE 120b(c), SEXUAL ABUSE OF A CHILD.

Briefs will be filed under Rule 25.

The Coast Guard CCA’s decision is available here. The case involves a conviction for sexual abuse of a child based upon Rodriguez kissing a child’s feet with an intent to arouse or gratify his own sexual desire. To prove Rodriguez’s intent, the military judge allowed the prosecution to admit evidence of Rodriguez’ foot fetish. The CCA affirmed.

No. 18-0362/AR. U.S. v. Nicholas L. Frost. CCA 20160171. 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 HEARSAY STATEMENTS AS PRIOR CONSISTENT STATEMENTS UNDER MIL. R. EVID. 801(d)(1)(B)(i) WHERE THE DEFENSE THEORY POSITED THE IMPROPER INFLUENCE OR MOTIVE PRECEDED THE ALLEGEDLY CONSISTENT STATEMENTS.

Briefs will be filed under Rule 25.

The Army CCA’s opinion is available here. The CCA rejected the granted issue in a footnote, concluding: “Miss DF’s initial statement to her mother and SC in August 2013 was properly admitted by the military judge. A prior consistent statement that precedes an allegation of improper influence is not hearsay. Mil. R. Evid. 801(d)(1)(B).” Slip op. at 10 n.6.

Yesterday CAAF granted review in this Air Force case:

No. 18-0372/AF. U.S. v. Paul D. Voorhees. CCA 38836. 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 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.

Briefs will be filed under Rule 25.

In 2015 Major Voorhees was convicted of one specification of sexual assault by causing bodily harm and five specifications of conduct unbecoming of an officer and gentleman, and sentenced to confinement for three years, total forfeitures, and a dismissal. On appeal the following year, in an opinion available here, the Air Force CCA found the sexual assault conviction factually insufficient and ordered a sentence rehearing. At the rehearing in 2017 a military judge sentenced Voorhees to a reprimand and to be dismissed. Then, earlier this year, the CCA again affirmed the findings of conduct unbecoming, and it affirmed the revised sentence, in an opinion available here.