CAAFlog » Certified Cases

On Friday CAAF docketed this case certified by the Judge Advocate General of the Navy:

No. 19-0437/MC. U.S. v. Roberto Armendariz. CCA 201700338. Notice is given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 on the following issues:

I. WHETHER THE LOWER COURT ERRED IN OVERTURNING THE MILITARY JUDGE’S ADMISSION OF EVIDENCE WHERE THE MILITARY JUDGE FOUND THAT THE OFFICIAL WHO AUTHORIZED THE SEARCH WAS THE ACTING COMMANDER WITH FULL AUTHORITY AND CONTROL OVER THE REMAIN BEHIND ELEMENT, EXCEPT FOR AUTHORITY TO IMPOSE NONJUDICIAL PUNISHMENT AND CONVENE COURTS-MARTIAL?

II. WHETHER THE LOWER COURT ERRONEOUSLY APPLIED THE EXCLUSIONARY RULE UNDER MIL. R. EVID. 311(a)(3) BY FAILING TO APPROPRIATELY BALANCE THE BENEFITS OF DETERRENCE AGAINST THE COSTS TO THE JUSTICE SYSTEM, AND THEREBY ERRED IN OVERTURNING THE MILITARY JUDGE’S DECISION NOT TO APPLY THE EXCLUSIONARY RULE?

III. WHETHER THE LOWER COURT ERRED IN FINDING THE GOOD-FAITH EXCEPTION DID NOT APPLY WHERE THIS COURT HAS, IN UNITED STATES V. CHAPPLE, 36 M.J. 410 (C.M.A. 1993), HELD THE EXCEPTION APPLIES EVEN WHEN THE INDIVIDUAL ISSUING THAT SEARCH AUTHORIZATION LACKED AUTHORITY UNDER MIL. R. EVID. 315(d)(1), AND HERE LAW ENFORCEMENT REASONABLY BELIEVED THE ACTING COMMANDER WAS AUTHORIZED TO ISSUE SEARCH AUTHORIZATIONS?

Appellant will file a brief under Rule 22(b) in support of said certificate on or before the 23rd day of September, 2019.

The NMCCA’s opinion is available here. Reviewing a search authorization issued by the officer in charge of a remain-behind element (the portion of a unit remaining in garrison while the bulk of the unit deploys), the CCA held that the authorization was invalid because the officer in change was not a commander within the meaning of Mil. R. Evid. 315. It further held that “exclusion will deter future commanders from impermissibly delegating their inherent command authorities,” and that “exclusion will deter those who are not commanders, and therefore lack command authority,from attempting to exercise authorities they do not possess.” Slip op. at 24.

CAAF decided the Air Force case of United States v. Hyppolite, II., 79 M.J. __, 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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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).

Yesterday’s daily journal contains this summary disposition:

No. 19-0345/AF. U.S. v. Humphrey Daniels III. CCA 39407. On consideration of the issue certified by the Judge Advocate General of the Air Force, __ M.J. __ (C.A.A.F. Jun. 19, 2019), Appellant’s brief, and Appellant’s motion for a summary disposition, motion to suspend this Court’s rules, and motion to dispense with the requirement to file a joint appendix all filed June 19, 2019, and in light of United States v. Mangahas, 77 M.J. 220 (C.A.A.F. 2018), it is ordered that the motions are granted, and the certified issue is answered in the affirmative, and the decision of the United States Air Force Court of Criminal Appeals is therefore affirmed.

The Air Force CCA’s opinion is available here.

CAAF decided the certified Marine Corps case of United States v. Perkins, 78 M.J. 381, No. 18-0365/MC (CAAFlog case page) (link to slip op.), on April 23, 2019. Selectively reading Mil. R. Evid. 311 (which codifies various rules for evidence obtained as the result of an unlawful search or seizure), a majority of the court holds that Mil. R. Evid. 311(c)(3)(B) does not mean what it says, repudiating the recent unanimous decision in United States v. Hoffmann, 75 M.J. 120 (C.A.A.F. 2016) (CAAFlog case page), that applied the rule as written, and reinvigorating the not-quite-unanimous United States v. Carter, 54 M.J. 414, 421 (C.A.A.F. 2001), that held that “the phrase ‘substantial basis’ has different meanings, depending on the issue involved.” Accordingly, assuming that the search authorization in this case was issued without a substantial basis for finding probable cause, CAAF nevertheless applies the good faith exception even though Mil. R. Evid. 311(c)(3)(B) requires more, affirming the published decision of the Navy-Marine Corps CCA.

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

The Judge Advocate General of the Navy certified two issues, both on behalf of the defense:

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

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

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

Perkins was in a relationship with a woman who alleged to military law enforcement that Perkins extorted her with nude photos and videos taken without her consent. She told military investigators that she never actually saw Perkins take a picture or video of her, but she said she once saw him use his cell phone during sexual activity and she also claimed that he had other electronic devices in his home capable of storing pictures and videos. Based on that information, and knowing that Perkins was out of town and had his cell phone with him, military investigators sought and received a search authorization to search Perkins’ home for other devices. Perkins’ commanding officer issued the authorization and agents searched Perkins’ home where they found no illicit pictures or videos, but instead found military property that eventually led to Perkins’ conviction of the conspiracy and orders violation.

At trial, Perkins moved to suppress the evidence seized from his home on the basis that the search authorization lacked probable cause, was unconstitutionally vague, and was insufficiently particular. The military judge denied the motion. On appeal, however, the Navy-Marine Corps CCA agreed with Perkins that there was no probable cause to search his home, concluding (in a published opinion) that there was no substantial basis for the commander who authorized the search to conclude that there was a fair probability that investigators would find illicit images or videos in the house. In particular, the CCA found that the woman’s allegation of extortion “did not provide probable cause to search [Perkins’] home.” United States v. Perkins, 78 M.J. 550, 557 (N-M Ct. Crim. App. 2018) (link to slip op.). Nevertheless, the CCA affirmed admission of the evidence by applying the good faith exception.

As a general rule, law enforcement must obtain a search warrant – or, in the military, a search authorization – prior to conducting a search, and the warrant must be based on probable cause. If that doesn’t happen, the remedy is exclusion of any evidence discovered. Exclusion is a judicially-created rule in the civil courts but it is codified for courts-martial as Mil. R. Evid. 311. Section III of the Military Rules of Evidence actually codifies a wide variety of judge-made law regarding search and seizure (unlike the Federal Rules of Evidence, which do not contain similar codification), and the military rules include many military-specific applications.

The civil courts also recognize – and the military rules codify – a good faith exception to the exclusionary rule based on the conclusion that there is no justification for the practical cost of excluding evidence of guilt when a law enforcement officer “is acting as a reasonable officer would and should act in similar circumstances.” United States v. Leon, 468 U.S. 897, 920 (1984). See also Mil. R. Evid. 311(c)(3). In other words, because the purpose of excluding unlawfully-obtained evidence is to incentivize law enforcement to follow the law, if law enforcement got a warrant and reasonably relied on the warrant, but the warrant was flawed, then law enforcement acted in good faith and there is no bad conduct to be deterred by excluding the evidence.

The good faith exception codified in Mil. R. Evid. 311(c)(3) applies only when three conditions are met:

(A) the search or seizure resulted from an authorization to search, seize or apprehend issued by an individual competent to issue the authorization under Mil. R. Evid. 315(d) or from a search warrant or arrest warrant issued by competent civil authority;

(B) the individual issuing the authorization or warrant had a substantial basis for determining the existence of probable cause; and

(C) the officials seeking and executing the authorization or warrant reasonably and with good faith relied on the issuance of the authorization or warrant. Good faith is to be determined using an objective standard.

That second requirement, as written, doesn’t involve the officer conducting the search or seizure. Applying the plain language of Mil. R. Evid. 311(c)(3)(B), if an authorization is invalid and if there was no substantial basis for probable cause to issue it in the first instance, then the good faith exception does not apply no matter what the executing officer thought. That’s different from the test established by the Supreme Court in Leon.

CAAF, however, abandoned a plain-language application of Mil. R. Evid. 311(c)(3) nearly 20 years ago, in United States v. Monroe, 52 M.J. 326, 332 (C.A.A.F. 2000). In that case, and with little discussion, CAAF applied the good faith exception as envisioned by the Supreme Court in Leon rather than as set forth in Mil. R. Evid. 311(c)(3). The following year, in Carter, CAAF explained why it did that:

[W]e conclude that Mil. R. Evid. 311(b)(3) [later moved to the current (c)(3)] does not establish a more stringent rule than Leon did for civilian courts. The first prong (a search warrant or search authorization issued by competent authority) is identical to the civilian rule. The second prong addresses the first and third exceptions noted in Leon, i.e., the affidavit must not be intentionally or recklessly false, and it must be more than a “bare bones” recital of conclusions. It must contain sufficient information to permit the individual executing the warrant or authorization to reasonably believe that there is probable cause. The third prong addresses the second and fourth exceptions in Leon, i.e., objective good faith cannot exist when the police know that the magistrate merely “rubber stamped” their request, or when the warrant is facially defective.

Carter, 54 M.J. at 421. Put differently, in Carter CAAF held that Mil. R. Evid. 311(c)(3) is merely redundant with Supreme Court precedent, even though it is worded differently. Only Judge Sullivan expressed concern with that approach, decrying “the majority’s tortured construction of Mil. R. Evid. 311(b)(3).” 54 M.J. at 423 (Sullivan, J. concurring). He did not suggest following the rule as written, however, but instead quoted the 1992 concurring opinion of Judge Cox that “it is time to de-Manualize these provisions because people keep trying to ‘apply’ them, thinking they are rules.” 54 M.J. at 424 (quoting United States v. Lopez, 35 M.J. 35, 45 n.3 (C.A.A.F. 1992) (Cox, J. concurring)).

Nevertheless, Mil. R. Evid. 311(c)(3) remained a rule – though not one CAAF was willing to actually follow – until Hoffmann, where then-Judge Stucky wrote for a unanimous CAAF (that included Senior Judge Lamberth of the United States District Court for the District of Columbia, who sat by designation), distinguished Mil. R. Evid. 311(b)(3) as the military good faith exception, and applied it as written to suppress child pornography due to the absence of a substantial basis for finding probable cause for the search. 75 M.J. at 128. By recognizing Mil. R. Rvid. 311(c)(3) as the military good faith exception, Hoffmann seemingly reversed the holding of Carter that only the judge-made rule from Leon applies.

Now, with its opinion in Perkins, CAAF reconciles Hoffmann and Carter, unequivocally disregards the rule as written, and concludes that “the NMCCA properly followed our decision in United States v. Carter, 54 M.J. 414 (C.A.A.F. 2001), when applying M.R.E. 311(c)(3).” Slip op. at 2.

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Last year, in United States v. Collins, 78 M.J. 530 (A.F. Ct. Crim. App. Jul 23, 2018) (discussed here), the Air Force CCA applied CAAF’s decision in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), to reverse a rape conviction and dismiss the charge. The CCA took that action because – based on Mangahas – the statute of limitations in Collins’ case expired more than ten years before he was charged.

The Judge Advocate General of the Air Force certified the case to CAAF (discussed here), questioning whether Mangahas applies and whether Collins could raise the statute of limitations for the first time on appeal. CAAF answered both of those questions in favor of Collins in United States v. Briggs, 78 M.J. 289 (C.A.A.F. Feb. 22, 2019) (CAAFlog case page), and last month the court summarily affirmed the Air Force CCA’s decision dismissing the charge (noted here).

The Air Force Government Appellate Division, however, filed a motion asking CAAF to stay its decision. Furthermore, throughout the entire process the Air Force refused to release Collins from confinement (he had been sentenced to confinement for 198 months, total forfeitures, reduction to E-1, and a dishonorable discharge). As a result, last week Collins filed a writ petition at CAAF seeking an order that he be released from confinement.

Today CAAF granted that order:

Upon consideration of Appellant’s motion to stay this Court’s order of March 12, 2019, affirming the decision of the United States Air Force Court of Criminal Appeals or to extend the time to comply with that order, Appellee’s answer, and Appellee’s petition for extraordinary relief in the nature of a writ of mandamus or in the alternative, a writ of habeas corpus, we note that Appellee is still confined despite the sole charge having been dismissed by the lower court. We also note that Appellant has not petitioned for reconsideration of this Court’s order. In that context, and where there is no further action to be taken by the President or the Secretary, the Judge Advocate General of the Air Force “shall instruct the convening authority to take action in accordance with” the decision of the lower court and the order of this Court. Article 67 (e), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 867(e) (2012). Finally, this Court has jurisdiction to entertain the petition and issue the writ of habeas corpus because the case is before us on direct review and appellate review is not yet complete under Article 57(c)(l)(B)(iii)(I), UCMJ (as amended by the Military Justice Act of 2016, the legislatively designated short title for Division E-Uniform Code of Military Justice Reform of the National Defense Authorization Act for Fiscal Year 2017). National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, § 5302(a), 130 Stat. 2000, 2922-23 (2016) (effective date Jan. 1, 2019). Accordingly, it is, by the Court, this 3rd day of April, 2019,

ORDERED:

That Appellant’s motion to stay or extend time is denied; and Appellee’ s petition for a writ of habeas corpus is granted. All rights, privileges, and property of which Appellee has been deprived are hereby ordered restored. The Judge Advocate General shall direct the immediate release of Appellee from confinement.

On Tuesday CAAF summarily affirmed the Air Force CCA’s decision in United States v. Collins, 78 M.J. 530 (A.F. Ct. Crim. App. Jul 23, 2018) (discussed here), certified, 78 M.J. 190 (C.A.A.F. Nov. 5, 2018) (noted here).

No. 19-0052/AF. U.S. v. Richard D. Collins. CCA 39296. On consideration of the three issues certified by the Judge Advocate General of the Air Force, 78 M.J. 190 (C.A.A.F. 2018), the briefs of the parties, and Appellee’s motion to summarily affirm filed on February 26, 2019, and in light United States v. Briggs, __ M.J. __(C.A.A.F. Feb. 22, 2019), it is ordered that the three certified issues are answered in the negative, and the decision of the United States Air Force Court of Criminal Appeals is therefore affirmed. Appellee’s motion is denied as moot.

An unsurprising result considering the court’s unanimous decision in United States v. Briggs, 78 M.J. 289 (C.A.A.F. Feb. 22, 2019) (CAAFlog case page).

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

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

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

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

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

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

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Back in July the Air Force CCA issued a decision in United States v. Collins, 78 M.J. 530 (A.F. Ct. Crim. App. Jul 23, 2018) (discussed here), in which it reversed a 2017 conviction for a rape alleged to have occurred in 2000.

The CCA took that action because in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), a unanimous CAAF held that the offense of rape of an adult (without aggravating factors) is not constitutionally punishable by death, and so the statute of limitations for a court-martial prosecution for that offense (prior to amendments enacted in 2006) is just five years.

In Collins the CCA observed that:

In light of Mangahas, the statute of limitations applicable to the charged offense of rape in violation of Article 120, UCMJ, committed on or about 25 August 2000 was five years. See Mangahas, 77 M.J. at 225. Therefore, the statute of limitations in Appellant’s case expired in August 2005, more than ten years before the charge and specification were preferred and delivered to the summary court-martial convening authority in March 2016.

78 M.J. at 534. Furthermore, the CCA noted that even if the extension of the statute of limitations enacted by Congress in 2006 were retroactive, the ex post facto clause prohibits applying the extension in Collins because the time period under the pre-extension statute of limitations (as interpreted by Mangahas) expired before the extension.

On Monday the Air Force JAG certified the case to CAAF:

No. 19-0052/AF. United States, Appellant v. Richard D. Collins, Appellee. CCA 39296. Notice is hereby 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 issues:

I. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT DETERMINED THAT THE 2006 AMENDMENT TO ARTICLE 43, UCMJ, CLARIFYING THAT RAPE IS AN OFFENSE WITH NO STATUTE OF LIMITATIONS, DID NOT APPLY TO APPELLEE’S 2000 RAPE OFFENSE.

II. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT FOUND THAT APPELLEE COULD SUCCESSFULLY RAISE THE STATUTE OF LIMITATIONS DEFENSE FOR THE FIRST TIME ON APPEAL.

III. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT FOUND THAT THE MILITARY JUDGE COMMITTED PLAIN ERROR BY FAILING TO INFORM APPELLEE HE COULD RAISE THE STATUTE OF LIMITATIONS AS A BAR TO TRIAL.

Appellant will file a brief under Rule 22(b) in support of said certificate on or before the 5th day of December, 2018.

CAAF is considering similar issues in United States v. Briggs, No. 16-0711/AF (CAAFlog case page). The oral argument in Briggs is scheduled for December 4, 2018.

The Fourth Amendment generally requires law enforcement obtain a warrant prior to seizing or searching property, and the warrant must be based on probable cause. Any evidence discovered in violation of those requirements may be excluded from trial. Such exclusion is not required by the Fourth Amendment, but rather is a “a judicially created remedy designed to safeguard Fourth Amendment rights generally through [a] deterrent effect.” United States v. Calandra, 414 U.S. 338, 348 (1974). That exclusionary rule is codified in the Military Rules of Evidence with the caveats that such exclusion must “result[] in appreciable deterrence,” and “the benefits of such deterrence [must] outweigh the costs to the justice system.” Mil. R. Evid. 311(a)(3).

But there are exceptions. One exception – also codified in the Military Rules of Evidence – involves a warrant (or military search authorization) that is somehow flawed. If a warrant is issued by competent authority with a substantial basis for finding probable cause, but is later determined to be invalid, the exclusionary rule does not apply if law enforcement “reasonably and with good faith” relied on the warrant to conduct the search or seizure. Mil. R. Evid. 311(c)(3). This good faith exception to the exclusionary rule recognizes that there is no deterrent effect, and so no justification for the practical cost of excluding evidence of wrongdoing, when a law enforcement officer “is acting as a reasonable officer would and should act in similar circumstances.” United States v. Leon, 468 U.S. 897, 920 (1984). In other words:

If the purpose of the exclusionary rule is to deter unlawful police conduct, then evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.

United States v. Leon, 468 U.S. 897, 919 (1984) (quoting United States v. Peltier, 422 U.S. 531, 542 (1975)).

The good faith exception codified in Mil. R. Evid. 311(c)(3) applies only when:

(A) the search or seizure resulted from an authorization to search, seize or apprehend issued by an individual competent to issue the authorization under Mil. R. Evid. 315(d) or from a search warrant or arrest warrant issued by competent civil authority;

(B) the individual issuing the authorization or warrant had a substantial basis for determining the existence of probable cause; and

(C) the officials seeking and executing the authorization or warrant reasonably and with good faith relied on the issuance of the authorization or warrant. Good faith is to be determined using an objective standard.

That second requirement, however, doesn’t seem to involve the officer actually conducting the search or seizure. Applying the plain language of Mil. R. Evid. 311(c)(3)(B), if a warrant is invalid and there was no substantial basis to find probable cause to issue it, then the good faith exception does not apply no matter what the officer thought.

It’s a rule that swallows the exception, because an officer might rely on a warrant to conduct a search, and that reliance might be objectively reasonable, but the exception won’t apply if later analysis reveals that there was no basis for finding probable cause to issue the warrant. CAAF addressed this issue in United States v. Carter, and observed that the substantial basis requirement in Mil. R. Evid. 311(c)(3)(B) would – if applied as written – “effectively abolish the good faith exception in military practice.” 54 M.J. 414, 421 (C.A.A.F. 2001). CAAF then decided to interpret the requirement narrowly:

“Substantial basis” as an element of good faith examines the affidavit and search authorization through the eyes of a reasonable law enforcement official executing the search authorization. In this context, the second prong of Mil. R. Evid. 311(b)(3) is satisfied if the law enforcement official had an objectively reasonable belief that the magistrate had a “substantial basis” for determining the existence of probable cause.

Carter, 54 M.J. at 422. Put differently, if the officer exercising the warrant objectively believes that there was a substantial basis for finding probable cause to issue the warrant, then the officer acts in good faith and the exception may apply. If, however, the officer knows or should know that there wasn’t a substantial basis to find probable cause, but nevertheless exercises the warrant, then the officer is not acting in good faith and the exception won’t save the evidence from exclusion.

That interpretation was relatively settled until CAAF unsettled it in United States v. Hoffmann, 75 M.J. 120 (C.A.A.F. Feb. 18, 2016) (CAAFlog case page). Hoffmann was accused of committing indecent liberties with children, and a military commander authorized a search of Hoffman’s electronic devices for child pornography based on “an intuitive relationship between acts such as enticement or child molestation and the possession of child pornography.” 75 M.J. at 123. CAAF rejected that intuitive link as a basis for probable cause and invalidated the authorization (and reversed Hoffmann’s convictions). But CAAF also rejected application of the good faith exception, concluding that:

the individual issuing the authorization did not have a substantial basis for determining the existence of probable cause, a requirement for application of the good-faith exception.

75 M.J. at 128. That conclusion is contrary to the holding from Carter that focused the analysis on what the law enforcement officer knew or should have known about the basis for finding probable cause (and not on whether there actually was a substantial basis for finding probable cause).

CAAF acknowledged its inconsistency the following year, in United States v. Nieto, 76 M.J. 101 (C.A.A.F. Feb. 21, 2017) (CAAFlog case page), where it summarily concluded that the Army Government Appellate Division failed to establish that the good faith exception applied while observing (in a footnote) that:

We recognize the tension between our discussion of the good-faith doctrine in Hoffmann, 75 M.J. at 127-28, and Carter, 54 M.J. at 419-22. We leave for another day resolution of this tension because we conclude that under either understanding of the good-faith doctrine the Government has not met its burden of establishing this exception to the exclusionary rule in Appellant’s case.

United States v. Nieto, 76 M.J. 101, 108 n.6 (C.A.A.F. 2017).

That day has come:

No. 18-0365/MC. U.S. v. Calvin E. Perkins, Jr. CCA 201700077. Notice is hereby given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 on this date on the following issues:

I. WHETHER THIS COURT’S HOLDING IN UNITED STATES v. CARTER AS APPLIED BY THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS IN THIS CASE, INSTEAD OF THE PLAIN READING OF MRE 311(c) THIS COURT APPLIED IN UNITED STATES v. HOFFMANN, CONTROLS IN ANALYZING THE APPLICABILITY OF THE GOOD FAITH EXCEPTION TO THE EXCLUSIONARY RULE.

II. WHETHER THE MILITARY JUDGE ERRED IN DENYING A DEFENSE MOTION TO SUPPRESS EVIDENCE OBTAINED FROM A SEARCH OF APPELLANT’S HOME.

The NMCCA issued a published decision in Perkins (available here) that concluded:

Carter’s approach to MIL. R. EVID. 311(c)(3) is inconsistent with the rule’s plain language, and Hoffmann’s plain-language approach is therefore inconsistent with Carter. . . .

We conclude that we are still bound by Carter. We are reluctant to assume that the CAAF has tacitly reversed its own precedent. Hoffmann made no mention of Carter and did not purport to change any precedents binding on this court. . . .

United States v. Perkins, 78 M.J. 550, 561, No. 201700077, slip op. at 13-14 (N.M. Ct. Crim. App. Jul. 12, 2018). The CCA then found that the good faith exception applies to the case and affirmed the findings and the sentence, but it observed that its “choice of authorities determines the outcome of this issue” and “under Hoffman, the evidence does not qualify for the exception.” Slip op. at 10-11. Furthermore, it “respectfully suggest[ed] that the CAAF resolve the tension between Carter and Hoffmann in favor of Hoffmann and the plain language of MIL. R. EVID. 311(c)(3).” Slip op. at 20 (emphasis added).

The JAG’s certification of this issue – that the Government Division won at the CCA – is unusual, but not unprecedented. The Navy JAG previously certified an issue at the request of the defense as recently as 2016. See Howell v. United States, 75 M.J. 386 (C.A.A.F. 2016) (CAAFlog case page).

CAAF added two new cases to its master docket yesterday, one a certification from the Judge Advocate General of the Navy, and the other a grant.

First, the certified case:

No. 18-0282/NA. United States, Appellant v. Paul E. Cooper, Appellee. CCA 201500039. Notice is hereby given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 on this date on the following issues:

DID THE LOWER COURT ERR NOT FINDING WAIVER OF THE RIGHT TO REQUEST INDIVIDUAL MILITARY COUNSEL WHERE APPELLEE WAS ADVISED OF HIS RIGHT TO REQUEST AN INDIVIDUAL MILITARY COUNSEL, AGREED HE UNDERSTOOD THE RIGHT BUT WANTED INSTEAD TO BE REPRESENTED BY TRIAL DEFENSE COUNSEL, AND MADE NO MOTION FOR INDIVIDUAL MILITARY COUNSEL?

DID THE LOWER COURT ERR IN NOT APPLYING THE STRICKLAND INEFFECTIVE ASSISTANCE TEST WHERE THE GOVERNMENT AND TRIAL JUDGE PLAYED NO PART IN THE DEFENSE’S FAILURE TO REQUEST INDIVIDUAL MILITARY COUNSEL, AND IF SO, DID APPELLEE SUFFER INEFFECTIVE ASSISTANCE OF COUNSEL?

IF STRICKLAND DOES NOT APPLY, DID THE LOWER COURT CORRECTLY FIND APPELLEE WAS DEPRIVED OF HIS STATUTORY RIGHT TO REQUEST INDIVIDUAL MILITARY COUNSEL?

DID THE LOWER COURT ERR IN IT’S PREJUDICE ANALYSIS FOR APPELLEE’S ASSERTED DEPRIVATION OF HIS STATUTORY RIGHT TO INDIVIDUAL MILITARY COUNSEL WHEN APPELLEE DID NOT PRESERVE THE ISSUE AT TRIAL, RAISED THE ISSUE FOR THE FIRST TIME ON APPEAL, AND HAS ALLEGED NO SPECIFIC PREJUDICE?

The Navy-Marine Corps CCA’s decision is available here. The CCA concluded:

In this case we find that a member of an agent of the government—RLSO SE—frustrated the appellant’s right to legal advice early in the case. We find formation of an attorney-client relationship regarding the facts of this case in direct response to that frustration. And finally, we find deprivation of representation by that attorney, with whom the relationship was shared, through no fault of the appellant. The facts of this case lead us to conclude the appellant suffered material prejudice when his IMC request for CPT T.N. was never drafted and forwarded to CPT T.N.’s chain of command for consideration and possible approval.

Slip op. at 23. For the waiver issue, the CCA found:

To the extent the appellant waived his right to request CPT T.N. as an IMC, he relied on an erroneous representation of CPT T.N.’s unavailability.

Slip op. at 19.

Next, the granted case:

No. 18-0209/AR. U.S. v. Jeffrey G. Eugene. CCA 20160438. 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 the petition is granted on the following issues:

I. WHETHER APPELLANT’S REQUEST TO CRIMINAL INVESTIGATION COMMAND [CID] THAT HIS CELL PHONE BE RETURNED WAS A WITHDRAWAL OF THE THIRD PARTY CONSENT TO SEARCH GIVEN BY APPELLANT’S WIFE IN APPELLANT’S ABSENCE.

II. WHETHER THE ARMY COURT ERRED IN DETERMINING THE APPLICABILITY OF THE INEVITABLE DISCOVERY DOCTRINE WHERE (1) THE CID AGENTS FAILED TO TAKE ANY STEPS TO OBTAIN A WARRANT AND (2) THE CASE TOOK A “DEAD-END” UNTIL THE WARRANTLESS SEARCH.

Briefs will be filed under Rule 25.

The Army CCA’s decision is available here and explains that:

Appellant argues that he withdrew his wife’s third-party consent, which begs the question: can one individual withdraw another person’s consent, at least where he has a greater property interest in the evidence being searched? This appears to be a matter of first impression in this court.

Slip op. at 5. The CCA did “not extinguish the possibility that there may exist a situation in which a review of
the totality of the circumstances may allow for withdrawal of third-party consent to search personal property,” slip op. at 6, but the court concluded that the appellant did not actually withdraw consent (and also that the inevitable discovery doctrine applies).

CAAF just updated its daily journal with events from last week, including two significant developments.

First, the court rejected the certified issue in Hale as seeking an advisory opinion, and summarily affirmed the NMCCA:

No. 17-0537/MC. United States, Appellant v. James A. Hale III, Appellee. CCA 201600015. On further consideration of Appellant’s certificate for review and the briefs of the parties, it is ordered that no answer is provided to the certified issue because to do so would require issuing an advisory opinion, that the hearing notice issued by the Court on October 20, 2017, setting argument in this case for January 9, 2018, is hereby vacated, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

In an opinion I discussed here, the NMCCA reversed Hale’s convictions, and authorized a rehearing, because of a conflict of interest between his lead military defense counsel (a Marine captain, identified as Capt KC), her husband (another Marine captain, who was assigned as a trial counsel but not otherwise involved in the case, identified as Capt CC), and the prosecutor (a Marine lieutenant colonel, who was the regional trial counsel and supervised the husband, identified as LtCol CT). The CCA held “that where an appellant demonstrates that his counsel labored under an actual conflict of interest, and where the conflict had an adverse effect on the counsel’s performance, the appellant is entitled to a presumption of prejudice.” United States v. Hale, 76 M.J. 713, 722 (N.M. Ct. Crim. App. 2017) (emphasis added).

Second, CAAF expanded its review of whether failure to object to improper argument forfeits or waives any error. The court specified an issue in Kelly – in addition to the previously-granted issue questioning a CCA’s power to modify a mandatory minimum punitive discharge – but ordered no briefs, making the case a Marcum trailer:

No. 17-0559/AR. U.S. v. Eric F. Kelly. CCA 20150725. On further consideration of the record, it is ordered that the petition for grant of review is granted on the following additional issue specified by the Court:

IN LIGHT OF THIS COURT’S DECISIONS IN UNITED STATES V. SEWELL, 76 M.J. 14 (C.A.A.F. 2017) AND UNITED STATES V. PABELONA, 76 M.J. 9 (C.A.A.F. 2017) DID THE LOWER COURT ERR WHEN IT DETERMINED THE STANDARD OF REVIEW WAS WAIVER WHEN THERE WAS NO OBJECTION TO IMPROPER ARGUMENT?

No briefs will be filed under Rule 25.

Additionally, CAAF granted review of a similar issue in Burris:

No. 17-0605/AR. U.S. v. Erik J. Burris. CCA 20150047. 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:

CITING RULES FOR COURTS-MARTIAL 905(e) AND 919(c), THE ARMY COURT HELD THAT THE FAILURE OF APPELLANT’S TRIAL DEFENSE COUNSEL TO OBJECT TO IMPROPER CHARACTER EVIDENCE AND IMPROPER ARGUMENT WAIVED ANY ERROR. THIS COURT, HOWEVER, TREATS SUCH FAILURES AS FORFEITURE AND TESTS FOR PLAIN ERROR. WHICH COURT IS RIGHT?

Briefs will be filed under Rule 25.

Disclosure: I represent both Kelly and Burris in my personal capacity.

Last week CAAF summarily affirmed the Army CCA’s decision in United States v. Gould, No. 17-0507/AR:

No. 17-0507/AR. U.S. v. Orval W. Gould, Jr. CCA 20120727. On further consideration of Appellant’s certificate for review and the briefs of the parties, it is ordered that the first and second certified issues are answered in the negative, and therefore, no answer is provided to the third certified issue because to do so would require issuing an advisory opinion. The decision of the United States Army Court of Criminal Appeals is affirmed.

This was the second trip to CAAF for this case. Way back in 2015 CAAF remanded the case for reconsideration in light of United States v. Blouin, 74 M.J. 247 (C.A.A.F. Jun. 25, 2015) (CAAFlog case page). On remand, a two-judge majority of a panel of the CCA applied Blouin to find the the images of a child posing in underwear were not child pornography.

The JAG then certified three issues to CAAF:

I. Whether the Army Court of Criminal Appeals impermissibly exceeded the limitations of its authority on remand from this court by conducting a factual sufficiency review.

II. Whether the Army Court of Criminal Appeals erred by finding Specification 1 of Charge II factually and legally insufficient.

III. Whether nudity is a per se requirement for an image to constitute a “lascivious exhibition of the genitals or pubic area” in 18 U.S.C. § 2256(8)(a).

The first of these tracked a dissenting opinion at the CCA that I characterized as doubly wrong in this post discussing the certification. Dissenting from the CCA’s decision, Judge Wolfe asserted that CAAF’s remand deprived the CCA of its power of factual sufficiency review, and that the appellant had already received one such review (in the CCA’s first decision, that didn’t have Blouin to apply).

CAAF’s summary rejection of Judge Wolfe’s narrow view of the CCA’s power aligns nicely with our #4 Military Justice Story of 2016: Power to the CCAs!

But CAAF’s inability to give an advisory opinion means there is still lingering uncertainty about whether CAAF’s opinion in Blouin – in which the court rejected the application of United States v. Knox, 32 F.3d 733 (3d Cir. 1994) (Knox II) – goes so far as to hold that non-nude images can not qualify as lascivious exhibitions of the genitals or pubic area (making an image child pornography).

CAAF will hear the first oral argument of the 2017 term on Tuesday, October 10, 2017, at 9:30 a.m., in the certified Army case of United States v. Jacobsen, No. 17-0408/AR (CAAFlog case page). A single issue challenges the Army CCA’s rejection of an interlocutory prosecution appeal under Article 62, UCMJ:

Whether the trial counsel’s certification that evidence is “substantial proof of a fact material in the proceeding” is conclusive for purposes of establishing appellate jurisdiction under Article 62(a)(1)(b), Uniform Code of Military Justice.

The case is a general court-martial involving an alleged sexual offense. Sergeant First Class (E-7) Jacobsen is the accused, and his defense includes a focus on the alleged victim’s lack of credibility. Jacobsen’s defense counsel gave an opening statement that promised the members that “over the course of this trial you’re going to hear that [the alleged victim] has told five different stories about what happened on that couch on the evening of Valentine’s Day of this year going into the 15th of February.” Gov’t Div. Br. at 2. Then, on cross-examination of the alleged victim, the defense elicited evidence of numerous prior inconsistent statements about the alleged offense. In response, the prosecution:

sought to call a CID special agent to testify to the victim’s prior consistent statements under Mil. R. Evid. 801(d)(1)(B)(ii). The defense objected.

The military judge ruled that M.R.E. 801(d)(1)(B)(ii) does not apply in this case and that the Government could not admit the victim’s CID statement as rehabilitation evidence. The Government appealed his decision under Article 62, UCMJ.

Gov’t Div. Br. at 3 (citations to record omitted). Mil. R. Evid. 801(d)(1)(B) is part of the hearsay rule and is identical to Fed. R. Evid. 801(d)(1)(B). The federal rule was amended in 2014 in a way that makes any prior consistent statements of a witness non-hearsay, so long as the prior statement is otherwise admissible for rehabilitation (discussed here). The amendment was incorporated into the MCM in 2016 (noted here). The amendment did not, however, change what statements are otherwise admissible to rehabilitate a witness. See Fed. R. Evid. 801 advisory committee note to the 2014 amendment. See also United States v. Adams, 63 M.J. 691, 696-97 (A. Ct. Crim. App. 2006) (discussing circumstances when prior consistent statements are relevant).

Article 62 authorizes a prosecution appeal under certain, limited circumstances. One of them is of “an order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding.” Article 62(a)(1)(B). Based on this authorization, the prosecution appealed the military judge’s ruling that prohibited the CID agent from testifying about the alleged victim’s prior statements.

But the Army CCA did not address the admissibility of the CID agent’s testimony. Rather, it rejected the prosecution’s appeal as unauthorized under Article 62. In a short order the CCA dismissed the appeal, concluding:

Contrary to appellant’s claim, the military judge did not issue “[a]n order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding.” UCMJ art. 62(a)(l)(B) (emphasis added). Although Congress intended to provide military prosecutors, to the extent practicable, with the same rights of appeal afforded to federal civilian prosecutors in 18 U.S.C. § 3731 (i.e., the right to appeal trial rulings dismissing charges or excluding substantive evidence), the jurisdictional language codified by Congress in Article 62, UCMJ, differs from 18 U.S.C. § 3731. See United States v. Lopez de Victoria, 66 M.J. 67, 68-71 (C.A.A.F. 2008) (explaining the general intent of Congress in enacting Article 62, UCMJ).

Specifically, the plain language of 18 U.S.C. § 3731 confers appellate jurisdiction over trial orders suppressing evidence, only conditioned upon timely certification from the United States attorney. United States v. Grace, 526 F.3d 499, 505-06 (9th Cir. 2008) (en banc). In contrast, the plain language of Article 62(a)(1), UCMJ, confers appellate jurisdiction for orders or rulings that actually meet specified criteria.

United States v. Jacobsen, No. 20160768, slip op. at 1 (A. Ct. Crim. App. Feb. 6, 2017) (order) (marks in original) (discussed here). The Government Appellate Division sought reconsideration and the CCA reached the same conclusion on March 16, 2017, again highlighting the different language of the civil and military statutes.

The JAG then certified the case to CAAF to determine whether a CCA may determine that a prosecution appeal does not meet the Article 62 criteria despite a trial counsel’s certification that it does.

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