CAAFlog » CAAF Opinions

CAAF decided the Army case of United States v. Turner, __ M.J. __, No. 19-0158/AR (CAAFlog case page) (link to slip op.), on Wednesday, March 25, 2020. Considering a specification of attempted murder that failed to expressly allege that the attempt was unlawful (a necessary term because military service involves lawful killing), a majority of the court reads the specification with maximum liberality because the defense waited until after findings to object, and affirms the conviction and the decision of the Army CCA.

Judge Ohlson writes for the court, joined by all but Judge Maggs, who dissents.

CAAF granted review to determine:

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 charged with a specification that read:

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.

The charge arose from a violent encounter involving Turner, his wife, and a the victim. Turner served with the victim in Korea, and Turner had an adulterous relationship with her that ended when she learned he was married. The victim later learned that she was pregnant, gave birth, and sought child support from Turner. In 2015, Turner and his wife drove from Colorado to Tennessee to confront the victim. During the confrontation, Turner shot the victim multiple times. He was ultimately 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.

During the court-martial, Turner’s defense counsel objected to the attempted murder specification as failing to state an offense. However, counsel did not do so until after the members found Turner guilty. CAAF does not explicitly say that the delay was for purely tactical reasons, but it does suggest as much with a footnote quoting the Ninth Circuit’s observation that “delay in raising the issue suggests a purely tactical motivation of incorporating a convenient ground of appeal in the event the jury verdict went against the defendants.” Slip op. at 9 n.7 (citation omitted). That’s problematic because CAAF’s precedent strongly favors earlier objections, even though the Rules for Courts-Martial do not require an earlier objection to the failure of a specification to state an offense (something Judge Maggs highlights in his dissenting opinion). Specifically, when a specification is challenged at trial, CAAF reads the specification narrowly; but when it is first challenged after trial, it is read with “maximum liberality.” Slip op. at 7.

The result in this case turns on the majority’s conclusion that the defense objection was made after trial, and so the maximum liberality standard applies and the conviction is affirmed. Judge Ohlson’s majority opinion does not explicitly say that an earlier objection would have led to a different result, but it strongly implies that. Judge Maggs’ dissenting opinion, however, is clear that the specification fails under a narrow reading:

I agree with the Court’s implication that apart from the “maximum liberality” standard, the specification fails to allege criminality either expressly or by necessary implication.

Diss. op. at 3. In other words, Turner’s conviction of attempted murder is based on a deficient specification, but the conviction is affirmed because Turner’s defense counsel waited until after findings to object.

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CAAF decided the Army case of United States v. Finch, __ M.J. __, No. 19-0298/AR (CAAFlog case page) (link to slip op.), on March 3, 2020. Explaining that a prior consistent statement offered under the new Mil. R. Evid. 801(d)(1)(B)(ii) “must actually be relevant to rehabilitate the witness’s credibility on the basis on which he or she was attacked,” CAAF finds that the military judge in this case erred but that the error was harmless.

Judge Ohlson writes for a unanimous court.

CAAF granted review to determine:

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

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

Finch’s convictions largely hinged on the testimony of his stepdaughter, who said that he sexually assaulted her on two occasions while they were camping. Her allegations were investigated by the Army Criminal Investigation Command (CID), and she gave CID a videotaped interview. That interview was admitted at trial, in its entirety, over defense objection, after the military judge ruled that it was a prior consistent statement under Mil. R. Evid. 801(d)(1)(B).

Mil. R. Evid. 801(d)(1)(B) – which is identical to Fed. R. Evid. 801(d)(1)(B) – provides situations where a prior consistent statement by a witness is not hearsay. If a witness testifies about something in court, the rule allows a consistent, prior (out-of-court) statement by that same witness to be admitted as proof of the truth of the thing said on both occasions (as opposed to a more limited admissibility, such as merely to prove that a prior statement was made). The rule has two parts that allow admission of prior statements either:

(i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or

(ii) to rehabilitate the declarant’s credibility as a witness when attacked on another ground

Mil. R. Evid. 801(d)(1)(B). The first part is a longstanding rule that CAAF has considered many times, including just last term in United States v. Frost, 79 M.J. 104 (C.A.AF. Jul. 30, 2019) (CAAFlog case page). But the second part is a new rule that was added to the federal rules in 2014 (discussed here), and incorporated into the military rules in 2016 (noted here).

Military prosecutors took a broad view of the new rule, seeking admission of prior statements whenever a witness was impeached by the defense. The Army CCA’s opinion in this case rejected that view, requiring that a prior consistent statement actually address the specific manner in which the witness was attacked. United States v. Finch, 78 M.J. 781 (A. Ct. Crim. App. 2019) (link to slip op.). The NMCCA reached the same conclusion in United States v. Norwood, 79 M.J. 644 (N-M. Ct. Crim. App. Aug. 9, 2019), pet. for rev. granted, __ M.J. __ (C.A.A.F. Jan 21, 2020) (discussed here). CAAF now endorses those holdings, with Judge Ohlson outlining a five-part test for admissibility of a prior consistent statement under the new rule:

for a prior consistent statement to be admissible under M.R.E. 801(d)(1)(B)(ii), it must satisfy the following:

(1) the declarant of the out-of-court statement must testify,

(2) the declarant must be subject to cross-examination about the prior statement,

(3) the statement must be consistent with the declarant’s testimony,

(4) the declarant’s credibility as a witness must have been “attacked on another ground” other than the ones listed in M.R.E. 801(d)(1)(B)(i), and

(5) the prior consistent statement must actually be relevant to rehabilitate the witness’s credibility on the basis on which he or she was attacked.

Slip op. at 12 (paragraphing added).

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CAAF decided the Army case of United States v. Hennis, __ M.J. __, No. 17-0263/AR (CAAFlog case page) (link to slip op.), on February 28, 2020. Hennis is a capital case and CAAF’s review is mandatory. Reviewing 40 issues raised by Hennis’ defense counsel and three issues raised by Hennis personally – but discussing only the five issues on which the court granted oral argument – CAAF affirms the findings, the sentence to death, and the decision of the Army CCA.

Chief Judge Stucky writes for a unanimous court.

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 Hennis 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, after which Hennis was reinstated in the Army and eventually transferred to the retired list where – like every other regular retiree – he remained subject to the UCMJ. Advances in DNA during the following years 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 raised dozens of challenges to his convictions and capital sentence, but CAAF heard oral argument on only 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 concludes that none of the issues in this case – not those heard at oral argument nor any of the others – provides a basis for relief, and it affirms Hennis’ convictions and sentence to death. As a result, Hennis remains one of only four people on military death row. The others are Gray and Akbar (whose convictions and sentence were affirmed by CAAF), and Hasan (whose case is still pending initial review by the Army CCA).

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CAAF decided the Army case of United States v. Avery, __ M.J. __, No. 19-0259/AR (CAAFlog case page) (link to slip op.), on February 27, 2020. The court finds that the enumerated Article 134 offense of indecent language (with any person, but with a greater maximum punishment when a child is involved) is not preempted by Article 120b(c) (2012), which criminalizes lewd acts with a child (a legal term of art that includes indecent communications), because there is no indication that Congress intended that result and because the Article 134 offense covers conduct that Article 120b(c) does not. Accordingly, the conviction and the decision of the Army CCA are affirmed.

Judge Ryan writes for a unanimous court.

CAAF granted review to determine:

Whether the specification of Charge II, alleging the communication of indecent language to a child in violation of Article 134, UCMJ, was preempted by Article 120b.

Specialist (E-4) Avery was convicted of communicating indecent language to a child under the age of 16 in violation of Article 134. The conviction was based on vulgar Facebook communications with the twelve year-old stepdaughter of another soldier. Avery’s defense counsel did not object to the charge at trial, but on appeal Avery claimed that when Congress enacted the offense of sexual abuse of a child (in Article 120b(c) (2012)), it intended that offense to apply to all indecent communications involving children and thereby preempted application of the Article 134 offense of indecent language in situations involving children.

Article 134 broadly prohibits “all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital.” The President enumerates offenses under Article 134 by exercising his Article 56 power to set maximum punishments. The enumerated offense of indecent language criminalizes oral and written communications – without regard to the age of the recipient or any criminal intent – that are indecent and either prejudicial to good order and discipline or of a nature to bring discredit upon the armed forces. The maximum punishment authorized by the President for such acts includes confinement for six months and a bad-conduct discharge, but if the recipient of the communication is a child under the age of 16 then the President authorizes a greater punishment including confinement for two years and a dishonorable discharge.

While the President enumerates offenses under Article 134, the preemption doctrine limits Article 134’s otherwise “expansive scope [by] prohibiting ‘application of Article 134 to conduct covered by Articles 80 through 132.'” Slip op. at 4 (quoting Manual for Courts-Martial, United States pt. IV, para. 60.c.(5)(a) (2012 ed.) (moved to para. 91.c.(5)(a) in the 2019 ed.)). But CAAF applies the preemption doctrine narrowly, with two exacting requirements. First, Congress must have intended to limit prosecution in a certain area to just those specific offenses covered by Articles 80-132. Second, the Article 134 offense at issue must be “composed of a residuum of elements of a specific [Article 80-132] offense.” Slip op. at 4 (quoting United States v. Curry, 35 M.J. 359, 360–61 (C.M.A. 1992)).

Neither of those requirements is satisfied with respect to the Article 134 offense of indecent language and the Article 120b(c) offense of sexual abuse of a child.

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CAAF decided the Air Force case of United States v. Muller, __ M.J. __, No. 19-0230/AF (CAAFlog case page) (link to slip op.), on February 12, 2020. A majority of the court reverses the decision of the Air Force CCA and remands the case for a new Article 66(c) review because CAAF can’t determine if the Air Force court applied an invalid rule of practice and procedure to deny a motion to file supplemental assignments of error.

The decision is per curiam, however Judge Maggs dissents and writes separately.

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.

Eventually the case returned to the CCA. Muller’s appellate defense counsel then filed a brief raising two assignments of error; one claiming unlawful command influence during the remand 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. The CCA’s rejection of the brief might have been because of Rule 15.5 of the Air Force CCA’s Rules of Practice and Procedure (2017), which required a motion to file a supplemental pleading within 10 calendar days of the return of a case after a remand. That rule (which is not in the current version of the Air Force CCA’s rules) conflicted with the Joint Rules of Appellate Procedure (required by Article 66(f) (pre-2019; now Article 66(h)), which allowed 60 days for such a filing.

CAAF then granted review of three 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.

CAAF decides only the first issue, holding that the CCA’s rule – with its 10-day deadline – is invalid “insofar as it contradicts the Joint Rules.” Slip op. at 4. Furthermore, because the CCA summarily rejected Muller’s supplemental brief, CAAF “cannot determine whether the denial was based on the invalid Air Force Rule 15.5, or some other valid basis.” Slip op. at 5. CAAF therefore remands the case for a new review by the CCA, mooting the second (due process) issue and not addressing the third (record correction) issue.

But Judge Maggs dissents because he believes that a remand is unnecessary based on the fact that Muller’s supplemental pleading was filed within the 10-day time limit, and so “the validity of AFCCA Rule 15.5 does not matter in this case.” Diss. op. at 1. Because of that, Judge Maggs also considers the second granted issue. He finds that neither of the errors asserted in Muller’s supplemental pleading had merit, and so there was no prejudice even if it was wrong for the CCA to reject the brief. Finally, based on the positions of the parties, Judge Maggs does not address the third granted issue.

Case Links:
AFCCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Appellant’s reply brief
Amicus brief: Navy-Marine Corps Appellate Defense in support of Appellant
Blog post: Argument preview
• Oral argument audio (wma)(mp3)
CAAF opinion
Blog post: Opinion analysis

CAAF decided the Army case of United States v. Davis, 79 M.J. 329, No. 19-0104/AR (CAAFlog case page) (link to slip op.), on February 12, 2020. After granting reconsideration in order to consider whether the Supreme Court’s decision in United States v. Rehaif, 139 S. Ct. 2191, 2196 (2019), affects the meaning of the word knowingly in the offense of indecent recording in violation of Article 120c(a)(2), CAAF does not actually answer that question. Rather, the court finds that the issue was waived when the defense did not object to the military judge’s instructions at trial.

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

The granted issue asked:

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

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

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

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

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

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

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

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

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

Davis, 76 M.J. at 228.

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

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

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

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CAAF decided the certified Air Force of United States v. Easterly, 79 M.J. 325, No. 19-0398/AF (CAAFlog case page) (link to slip op.), on February 4, 2020. Holding that a military judge has a duty to instruct members on the impact of a punitive discharge on retirement benefits only when the defense actually requests such an instruction, CAAF reverses the decision of the Air Force CCA holding that it was plain error for the military judge to not give such an instruction in this case where it was not requested.

Judge Ryan writes for a unanimous court.

Senior Airman (E-4) Easterly, was convicted of attempted premeditated murder and sentenced to confinement for seven years, total forfeitures, reduction to E-1, and a dishonorable discharge. Prior to trial, Easterly was diagnosed with schizophrenia that was found to have been aggravated by his military service and warranted a disability retirement. That fact was presented during the sentencing phase of the court-martial, but the defense did not request an instruction to the members that an adjudged punitive discharge would likely eliminate the possibility of that disability retirement. Considering that, two out of three judges of a panel of the Air Force CCA found that it was plain error for the military judge to fail to give an instruction sua sponte, and the CCA set aside the sentence and authorized a sentence rehearing.

The CCA’s decision relied, in part, on CAAF’s decision in United States v. Boyd, 55 M.J.  217 (C.A.A.F. 2001), which announced one rule and applied a second one. First, CAAF announced that “military judges in all cases tried after the date of this opinion [are required] to instruct on the impact of a punitive discharge on retirement benefits, if there is an evidentiary predicate for the instruction and a party requests it.” 55 M.J. at 221. Then, CAAF explained that “because the defense did not request an instruction on the impact of a punitive discharge on temporary disability retirement, we will grant relief only if the military judge’s failure to instruct sua sponte was plain error.” 55 M.J. at 222. In Easterly the Air Force CCA applied that second rule and concluded that the military judge’s failure to instruct sua sponte – meaning without prompting or suggestion – was plain error.

The Judge Advocate General of the Air Force then certified one issue to CAAF:

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.

In yesterday’s opinion CAAF holds that, as far as the trial is concerned, “there was no error here, let alone plain error.” Slip op. at 2. In so holding, the court roughly discards the second test from Boyd because “the [first] Boyd test, which requires a request, cannot be squared with a sua sponte duty for a military judge to give the instruction.” Slip op. at 7.

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CAAF decided the Army case of United States v. Guardado, 79 M.J. 301, No. 19-0139/AR (CAAFlog case page) (link to slip op.), on Wednesday, January 15, 2020. Holding that its own precedent regarding an accused’s right to restoration in rank and pay pending a rehearing is not binding on the military pay agency, a majority of the court finds no intent to punish the appellant when that pay agency refused to restore his pay.

Judge Sparks writes for the court, joined by all but Judge Ohlson who dissents.

CAAF granted review of a single 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.

Article 13 prohibits punishment before trial, and deprivation of military pay is a form of punishment. 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, a retrial is planned and the accused is restored in rank pending that retrial, but the accused is not paid at the restored rate. That non-restoration of pay occurs because of Defense Finance and Accounting Service (DFAS) policy based on decisions by non-military courts: the Court of Appeals for the Federal Circuit and the Court of Federal Claims.

In Howell, a military judge held that paying an accused at the reduced rate prior to a retrial violated Article 13. The prosecution appealed. CAAF agreed that Article 75(a) – which requires restoration of rights and privileges when a court-martial conviction or sentence is reversed – mandates that “if an accused is released from confinement awaiting rehearing, his pay status . . . should be the same as if he had never been tried in the first instance.” Howell, 75 M.J. at 392. Nevertheless, CAAF found no violation of Article 13 because DFAS’ 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 involves 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 which time 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). He sought credit from the military judge under Article 13, seeking application of CAAF’s decision in Howell. But the military judge denied the motion.

CAAF affirms the military judge’s denial, holding that its own “interpretation of Article 75(a), UCMJ, in Howell was not binding on DFAS in this instance. Accordingly, DFAS’s pay determination was not intended to punish [Guardado.]” Slip op. at 6. Judge Ohlson dissents because he finds that the non-restoration of pay is a proper basis to provide sentence relief and constitutes a violation of Article 13.

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CAAF decided the Army case of United States v. Stout, 79 M.J. 168, No. 18-0273/AR (CAAFlog case page) (link to slip op.), on August 22, 2019. Reviewing pre-referral changes to the dates of the alleged acts, CAAF finds that the changes were authorized because Article 34(c) specifically permits such changes to conform the charges to the evidence in an Article 32 report. Accordingly, CAAF affirms the findings, sentence, and decision of the Army CCA.

Chief Judge Stucky writes for the court, joined by Judge Sparks. Judge Ryan concurs fully in the Chief Judge’s opinion, but writes separately to address the reach of Rule for Courts-Martial (R.C.M.) 603. Judge Maggs concurs in the judgment, but would hold that the changes were minor (and so permissible under any analysis). Judge Ohlson dissents, asserting that the change-limiting language of R.C.M. 603 applies despite the change-permitting language of Article 34.

Staff Sergeant (E-6) Stout was convicted of abusive sexual contact with a child, indecent liberties with a child, sodomy with a child, and assault with intent to commit rape, in violation of Articles 120, 125, and 134. All of the offenses involved alleged sexual acts with his step-daughter and, as initially charged, many of the specifications alleged that the acts occurred on certain dates in 2008 and 2009. At an Article 32 pretrial investigation the child testified that the acts occurred while the family lived in New York, from August 2008 until June 2009.

Stout initially pleaded guilty (in 2012) to numerous offenses in accordance with a pretrial agreement, but the Army CCA reversed the pleas (in 2014) and authorized a rehearing. Stout then changed course and contested the charges. At that point – and prior to the convening authority referring the charges for the rehearing – the prosecution made dozens of changes to the charges. Some were relatively insignificant, such as correcting misspellings, but others changed the dates of the alleged acts by as much as 300 days, removing the specific dates and replacing them with the entire time the family lived in New York: between on or about 7 August 2008 and on or about 3 June 2009.

Stout objected, claiming that the changes were major changes that, under R.C.M. 603(d), required preferral of new charges. The military judge overruled the objection and Stout was convicted (in 2015) and sentenced to confinement for 18 years, reduction to E-1, and a dishonorable discharge. Stout renewed his challenge on appeal, and CAAF granted review to decide:

Whether the Government made major changes to the time frame of three offenses, over defense objection, and failed to prefer them anew in accordance with Rule for Courts-Martial 603.

CAAF heard oral argument in December. After the argument, it ordered briefing of two additional issues:

I. Whether United States v. Brown, 4 C.M.A. 683, 16 C.M.R. 257 (1954), is not controlling in this case because the decision predates the promulgation of the applicable version of R.C.M. 603(d).

II. Whether the applicable version of R.C.M. 603(d) is contrary to and inconsistent with the applicable version of Article 34(c), UCMJ, and therefore void to the extent it prohibits major changes, before referral, to charges and specifications that were amended to “conform to the substance of the evidence contained in the report of the investigating officer.” Article 34(c), UCMJ, 10 U.S.C. § 834(c) (2012).

Chief Judge Stucky’s opinion for the court answers the last of those issues in the affirmative, holding that Article 34(c) permits the changes (though not explicitly stating that contrary language in R.C.M. 603(d) is void).

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CAAF decided the Army case of United States v. Navarette, 79 M.J. 123, No. 19-0066/AR (CAAFlog case page) (link to slip op.), on August 1, 2019. Without explicitly holding that the Army CCA was wrong to deny the appellant’s request for an examination to determine his mental capacity to participate in the appellate process, a majority of CAAF remands the case to the Army court for further review of the request.

Judge Sparks writes for the court, joined by all but Chief Judge Stucky, who dissents.

Specialist (E-4) Navarette was convicted of a single specification of wrongful distribution of cocaine and sentenced to confinement for 90 days, reduction to E-1, total forfeitures, and a bad-conduct discharge. His defense at trial was that he was entrapped into selling the drugs to impress a pretty girl, and his mental health played a role in the defense (though he did not claim lack of mental responsibility). On appeal, Navarette’s military appellate defense counsel questioned Navarette’s mental capacity to participate in the appellate process and asked for an inquiry into Navarette’s mental health.

A three-judge panel of the Army CCA denied the request for three reasons: first, documents showed that the appellant responded well to mental health treatment; second, Navarette’s counsel had not actually asserted that he is unable to participate in the appeal; and third, Navarette had personally submitted matters to the CCA pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) (holding that a detailed appellate defense counsel must inform the military appellate courts of any issues raised by an appellant, even if the counsel believes they are frivolous). CAAF then granted review of two issues:

I. Whether the Army Court erroneously denied appellant a post-trial R.C.M. 706 inquiry by requiring a greater showing than a non-frivolous, good faith basis articulated by United States v. Nix, 15 C.M.A. 578, 582, 36 C.M.R 76, 80 (1965).

II. Whether the Army Court erred when it held that submitting matters pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), was evidence of Appellant’s competence during appellate proceedings.

Judge Sparks and the majority, however, “opt not to directly answer the granted issues,” slip op. at 2, because of “two concerns surrounding Appellant’s medical condition that we feel should be more thoroughly addressed to ensure a proper Article 66, UCMJ, review,” slip op. at 6. Chief Judge Stucky dissents, observing that:

the majority instead remands to the lower court without deciding that it abused its discretion and without telling it what standard it should apply. As the issue was granted, briefed, and argued, I see no reason not to provide that guidance, lest we need to return to this issue in this case again, further elongating these proceedings.

Diss. op. at 7.

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CAAF decided the Air Force case of United States v. Hyppolite, II., 79 M.J. 161, Nos.19-0119/AF & 19-0197/AF (CAAFlog case page) (link to slip op.), on August 1, 2019. Reviewing a military judge’s ruling under Military Rule of Evidence 404(b) that allowed the prosecution to use charged offenses as evidence that the accused acted pursuant to a common plan or scheme, a majority of the court finds no error and it affirms the findings and sentence.

Judge Maggs writes for the court, joined by all but Judge Ohlson, who dissents.

Staff Sergeant (E-5) Hyppolite was charged with five violations of Article 120 for allegedly sexually assaulting four other Airmen over a two-year period. The first three specifications alleged that Hyppolite touched three victims’ genitals while they were asleep; the last two specifications alleged non-consensual sexual acts with an intoxicated victim (who was not necessarily asleep) on one occasion. Hyppolite’s defense counsel moved to sever the first thee specifications from the last two, highlighting the different facts of each set of allegations. A military judge disagreed, ruling instead that “each specification is probative as to the other specifications on the issue of a common plan on the part of the accused.” Slip op. at 3 (marks omitted). Hyppolite then elected to be tried by a military judge alone, and he was convicted of four of the five specifications: two of the alleged touchings of sleeping victims, and both of the alleged acts with the intoxicated victim. The military judge sentenced Hyppolite to confinement for seven years, reduction to E-1, total forfeitures, and a dishonorable discharge.

On appeal, a three-judge panel of the Air Force CCA reversed one of Hyppolite’s convictions (involving a sleeping victim) for factual insufficiency. It also held that the military judge’s common plan or scheme ruling was error because evidence of the alleged acts with the sleeping victims did not support the existence of a common plan for the alleged acts with the intoxicated victim, and vice versa. But the CCA concluded that the error was harmless with respect to the remaining convictions (one of the sleeping victim allegations, and both of the intoxicated victim allegations).

CAAF granted review of the CCA’s finding of harmlessness and then the Judge Advocate General of the Air Force cross-certified a challenge to the CCA’s finding of error:

Granted 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.

Certified issue: Did the Air Force Court of Criminal Appeals err when it found the military judge abused his discretion by ruling that the evidence regarding Specifications 1, 2, and 3 could be considered as evidence of a common plan or scheme for Specifications 4 and 5.

Judge Maggs’ majority opinion answers only the certified issue, concluding that two military judges – one who ruled on the motion and another who presided over the trial – did not abuse their discretion because “it was within the discretion of the two military judges to find a common plan or scheme based on the common factors among the specifications.” Slip op. at 11. Judge Ohlson, however, finds both error and prejudice, and would reverse the two convictions involving the intoxicated victim.

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CAAF decided the Army case of United States v. Frost, 79 M.J. 104, No. 18-0362/AR (CAAFlog case page) (link to slip op.), on July 30, 2019. Reviewing a military judge’s admission (over a defense objection) of a prior consistent statement by an alleged child victim of rape, a majority of CAAF finds error because the statement was made after the improper influence asserted by the defense. Considering that error in the context of otherwise-weak evidence of guilt, a smaller majority of the court concludes that it was not harmless. Accordingly, CAAF reverses the decision of the Army CCA and the findings and sentence, and it authorizes a rehearing.

Judge Ohlson writes for the court, joined by Chief Judge Stucky and Judge Ryan. Judge Sparks concurs in the finding of error but dissents from the finding of prejudice. Judge Maggs dissents.

Specialist (E-4) Frost was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of rape of a child. The child was Frost’s daughter – identified by the initials DF – born in 2007. Frost and DF’s mother – Ms. Moore – separated before DF was born, and they fought over custody of DF after she was born. A state court ultimately awarded custody to Ms. Moore (who lived in Georgia), with Frost allowed scheduled visits. One such visit occurred in the summer of 2013, in Texas (where Frost was stationed). Approximately one month after the visit, Ms. Moore and her boyfriend (Mr. Casey) reported to law enforcement that while sitting in the car “DF spontaneously made a statement to the effect of, ‘Daddy stuck his penis in my mouth.'” Slip op. at 2.

DF subsequently underwent a forensic interview in March 2014, in which she did not disclose any abuse by Frost. A second interview, in November 2014, also did not result in any allegation of abuse. Nevertheless, Frost was charged and an Article 32 preliminary hearing was conducted in April 2015. DF testified by telephone during the hearing but, again, did not disclose any abuse by Frost. After the hearing, Ms. Moore took DF to five sessions with a psychotherapist, Dr. Landry, in August 2015. According to Dr. Landry, DF told her that Frost “tried to put his pee-wee in my mouth.” Slip op. at 3. The following month, however, DF was interviewed by the prosecutors by telephone and she “once again stated that nothing sexual happened during the summer of 2013 with Appellant and that she did not tell her mother that anything did happen.” Slip op. at 3-4. “The court-martial proceeded nonetheless.” Slip op. at 4.

DF testified at trial in 2016 and said “that nearly three years earlier ‘my dad put his pee-pee in my mouth.’” Slip op. at 4. The defense impeached DF with her prior inconsistent statements (her earlier denials of abuse). The prosecution then called Dr. Landry, and the military judge allowed Dr. Landry to testify about DF’s September 2015 allegation of abuse on the basis that it was admissible under the medical diagnosis or treatment exception to the hearsay rule, Mil. R. Evid. 803(4). The defense objected but the Army CCA affirmed the military judge’s ruling admitting Dr. Landry’s testimony, and CAAF denied review of that issue. Slip op. at 4 n.3.

The prosecution also called Ms. Moore and Mr. Casey, both of whom testified that DF made the allegation of abuse in August 2013. The defense objected to that too, but the military judge admitted the statement (as repeated by both witnesses) as non-hearsay based on the rule for prior consistent statements, Mil. R. Evid. 801(d)(1)(B). In so doing, the military judge concluded that the defense claimed that Dr. Landry had improperly influenced DF, making DF’s statements to Ms. Moore and Mr. Casey admissible because they pre-dated Dr. Landry’s influence. The Army CCA affirmed that decision in a footnote, and CAAF granted review to determine:

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.

A majority of the court finds that the military judge was wrong because the “defense’s sole theory and line of approach . . . was that Ms. Moore, motivated by a desire to obtain sole custody of her children, exerted an improper influence on DF prior to DF’s August 24, 2013, remark [in the car].” Slip op. at 11.

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CAAF decided the Army case of United States v. English, 79 M.J. 116, No. 19-0050/AR (CAAFlog case page) (link to slip op.), on July 30, 2019. Considering a conviction of forcible rape where the charged force was the accused grabbing the alleged victim’s head with his hands, CAAF holds that because the Army CCA found the evidence insufficient to prove that specific force, the CCA was prohibited from affirming the conviction on an alternative basis. CAAF reverses that conviction and remands the case to the Army CCA for sentence reassessment.

Judge Ryan writes for a unanimous court.

Specialist (E-4) English was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of numerous offenses in connection with “a brutal and protracted sexual altercation with his ex-wife,” and he was sentenced to confinement for 23 years, reduction to E-1, and a dishonorable discharge. Slip op. at 2. One of the convictions was of the offense of forcible rape in violation of Article 120(a)(1) (2012). That offense has two elements: (1) that the accused committed a sexual act upon another person, and (2) that the accused did so with unlawful force. See ¶ 45.b.(1), Part IV, MCM (2016 ed.).

English was charged with committing the sexual act “by unlawful force to wit: grabbing her head with his hands.” (slip op. at 3 (quoting record). English’s ex-wife testified that English committed the sexual act, but she testified that she could not recall whether he grabbed her at all. Nevertheless, in closing arguments the prosecution “repeatedly emphasized that Appellant accomplished the penetration by grabbing the victim’s head with his hands,” while the defense argued “against th[at] characterization.” Slip op. at 3. The military judge convicted English as charged.

On review, in a published opinion that primarily addressed the military judge’s erroneous admission of a hearsay statement as a recorded recollection under Mil. R. Evid. 803(5), the Army CCA found that there was no evidence to prove that English committed the sexual act by grabbing his ex-wife’s head with his hands. The CCA did, however, find that “there was sufficient evidence to prove appellant committed the sexual act by unlawful force,” and so “the ACCA excepted the words ‘to wit: grabbing her head with his hands’ from the charge sheet and affirmed Appellant’s conviction based on the remaining language.” Slip op. at 3-4. CAAF granted review to determine whether the CCA may do that, with the following 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.

“The answer,” explains Judge Ryan, “is clearly no.” Slip op. at 2.

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CAAF decided the Army case of United States v. Coleman, 79 M.J. 100, No. 19-0087/AR (CAAFlog case page) (link to slip op.), on July 10, 2019. Reviewing for multiplicity in a case involving convictions of attempted murder (with a firearm) and of willfully discharging a firearm under circumstances to endanger human life, CAAF finds that the convictions are not multiplicious because each offense contains an element that the other does not.

Judge Ohlson writes for a unanimous court.

A general court-martial composed of a military judge alone convicted Private First Class (E-3) Coleman of numerous offenses, including one specification of attempted murder in violation of Article 80 (Specification 1 of Charge I), and one specification of willfully discharging a firearm under circumstances to endanger human life in violation of Article 134 (Specification of Charge VII). Both convictions related to Coleman firing a handgun at a car containing another soldier, that soldier’s fiancé, and the fiancé’s three-year old daughter. The Army CCA affirmed those convictions and CAAF granted review of a single issue:

Whether Specification 1 of Charge VII is multiplicious with Specification 1 of Charge I, as they are part of the same transaction.

Furthermore, when it granted review, CAAF specifically ordered that briefs be filed on only the issue of multiplicity and not on the related concept of unreasonable multiplication of charges (noted here).

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CAAF decided the Army case of United States v. Haynes, 79 M.J. 17, No. 18-0359/AR (CAAFlog case page) (link to slip op.), on July 2, 2019. A divided court reaches the narrow conclusion that the conduct of defense counsel at trial affirmatively waived the issue of credit for prior punishment (known as Pierce credit). Accordingly, CAAF affirms the decision of the Army CCA that denied credit in this case.

Chief Judge Stucky writes for the court, joined by Judges Ryan and Sparks. Judge Ohlson and Judge Maggs each write separate opinions that concur in the result (the denial of credit) but dissent from the finding of waiver.

Private (E-1) Haynes pleaded guilty to numerous offenses pursuant to a pretrial agreement. Two of those offenses were wrongful use of marijuana, and Haynes admitted that he smoked marijuana on an almost-daily basis in an effort to get kicked out of the Army. But in addition to his court-martial conviction for wrongful use of marijuana, Haynes also received nonjudicial (Article 15) punishment for wrongful use of marijuana in the same general time period. That raised the possibility that Haynes was punished twice – the first time by nonjudicial punishment and the second time by the court-martial – for a single offense.

Thirty years ago, in United States v. Pierce, CAAF’s predecessor explained that such double punishment, while not a violation of the Double Jeopardy clause of the Fifth Amendment or the similar protection in Article 44, “would violate the most obvious, fundamental notions of due process of law,” and so “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 omitted). Ten years later, in United States v. Gammons, 51 M.J. 169, 183 (C.A.A.F. 1999), CAAF gave an accused four options regarding that credit: put the prior punishment into evidence at sentencing before members, raise it with the military judge alone, raise it with the convening authority (who, at the time, had unlimited power to reduce the sentence for that or any other reason), or not raise the issue of credit at all.

Haynes neither requested nor received any credit for his prior nonjudicial punishment at trial or when the convening authority acted. Instead, the issue was raised for the first time at the Army CCA. The CCA, however, found waiver, concluding that CAAF’s opinion in Gammons “requir[es] an accused to raise the issue of Pierce credit to either the court-martial or to the [convening authority] to avoid waiver as a matter of law.” United States v. Haynes, 77 M.J. 753, 756 (A. Ct. Crim. App. 2018). The CCA considered granting Haynes credit anyway (as part of its plenary review of the findings and sentence), but it determined that the facts of this case do not warrant relief despite the waiver. CAAF then granted review of two 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 Court of Criminal Appeals 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?

In yesterday’s decision a majority of the court finds that the conduct of Haynes’ defense counsel at trial amounts to an affirmative waiver of the right to any credit for the nonjudicial punishment, with Chief Judge Stucky explaining that the majority does not reach – and so does not endorse – the question decided by the Army CCA (“whether Appellant also waived the issue of Pierce credit by operation of law,” slip op. at 5). Judge Ohlson and Maggs do not agree that the defense counsel’s conduct amounts to waiver, but they nevertheless agree that Haynes is not entitled to credit based on the record in this case.

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