CAAFlog » Courts of Criminal Appeals

In the Army cases of United States v. Wall, No. 19-0143/AR (CAAFlog case page), and United States v. Gonzalez, No. 19-0297/AR (CAAFlog case page), CAAF is reviewing whether a CCA may reassess a sentence while also authorizing a rehearing.

A three-judge panel of the Army Court, however, recently acknowledged that it can’t do those things together. In United States v. Moynihan, No. 20130855 (A. Ct. Crim. App. Mar. 10, 2020) (link to slip op.), the CCA concludes that “authorizing a sentence alone rehearing was always intended to be an ‘either-or’ proposition with this court’s clear authority to reassess a sentence,” and that “given our sentence reassessment, it was improper, and in error, for this court also to remand the case with the option for the convening authority to order a rehearing on sentence alone.” Slip op. at 4.

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Article 91 criminalizes insubordinate conduct toward a warrant officer, noncommissioned officer, or petty officer. The Manual for Courts-Martial description of the statute is “to ensure obedience to their lawful orders, and to protect them from violence, insult, or disrespect.” MCM, Part IV, ¶17.c.(1). But the statute requires that the order violated be lawful or that the officer otherwise be in the execution of his office for the protection to apply. Accordingly, a warrant officer, noncommissioned officer, or petty officer may divest himself of the protections of his office by conduct that abandons his rank. See, generally, United States v. Diggs, 52 M.J. 251, 256 (C.A.A.F. 2000).

A recent published decision by the Navy-Marine Corps CCA in United States v. Addison, __ M.J. __, No. 201800272 (N-M. Ct. Crim. App. Feb. 11 2020) (link to slip op.), considers one such situation, involving a Marine corporal (E-4) and gunnery sergeant (E-7). The corporal – who eventually pleaded guilty to attempted escape, willful disobedience of a superior commissioned officer, disrespect toward a noncommissioned officer, and three specifications of wrongful use of a controlled substance – pleaded guilty to disrespect based on the following exchange with the gunnery sergeant:

MJ: Now, on those same dates, did you use certain language to wit: “F[***]k you, Gunny,” towards Gunnery Sergeant [J.R.M.]?

ACC: I did, your Honor.

MJ: Please explain the circumstances.

ACC: We were arguing about something with the checkout process, and he said, “I can tell that you just want to say ‘F[***]k me.’” And so he said, “Say ‘F[***]k you, Gunny.’” And we went back and forth for a few times, but I eventually gave in and said, “F[‘***]k you, Gunny.”

Slip op. at 2 (quoting record) (marks in original). A three-judge panel of the CCA finds that the gunnery sergeant’s invitation of the disrespectful words “was a clear departure from the standards required of those in leadership position and it invited a disrespectful response from Appellant.” Slip op. at 5.

Because the circumstances of the case “reasonably raised an affirmative defense of abandonment of office,” the panel holds that the military judge erred in failing to resolve the inconsistency between that defense and the plea of guilty, and so it reverses the conviction of that offense. Slip op. 5. Nevertheless, it affirms the sentence as adjudged.

Audio of the recent oral argument at the Air Force CCA in United States v. Painter, No. 39646, on February 5, 2020, at the George Washington University Law School, is available on the CCA’s website (here) and on the CAAFlog oral argument audio podcast.


Fourteen years ago, in United States v. Miller, CAAF announced a prospective rule that “defense counsel should inform an accused prior to trial as to any charged offense listed on the DoD Instr. 1325.7 Enclosure 27: Listing Of Offenses Requiring Sex Offender Processing.” 63 M.J. 452, 459 (C.A.A.F. 2006). Seven years later, in United States v. Riley, 72 M.J. 115 (C.A.A.F. 2013) (CAAFlog case page), CAAF held that a military judge’s failure to ensure that an accused understands the sex offender registration consequences of a guilty plea will require reversal of the plea. Since then, military judges routinely ask whether the accused is aware of the possibility of sex offender registration during a guilty plea when registration is a possibility.

Such registration can be hard to avoid, as states have their own requirements in addition to the federal Sex Offender Registration and Notification Act (SORNA), 34 U.S.C. § 20901 et seq., which requires a comprehensive sex offender registration system at the state level “to avoid the reduction of Federal funding.” 34 U.S.C. § 20927(d). See also United States v. Richardson, 754 F.3d 1143, 1146 (9th Cir. 2014) (affirming SORNA as a valid exercise of Congress’ spending power). Moreover, the requirements can change, and the changes can apply retroactively. The Solicitor General has even argued that sex offender registration could be required for former servicemembers without a conviction.

A recent unpublished, per curiam decision by a three-judge panel of the Navy-Marine Corps CCA in United States v. Fink, No. 201800250 (N-M. Ct. Crim. App. Feb. 6, 2020) (link to slip op.), reveals how registration can be hard to avoid while finding that a defense counsel (who is not identified in any way) was not ineffective for providing sex offender registration advice that the appellant claims was wrong.

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Two weeks ago, in this post, I discussed the Army CCA’s published, unanimous, en banc opinion in United States v. Springer, __ M.J. __, No. 20170662. Reviewing misconduct by the military judge (identified in the opinion as Lieutenant Colonel Richard Henry), the CCA held that such “misconduct with the spouse of a party to the case during trial erodes public confidence in the judiciary and the military justice system.” Slip op. at 7. I also noted that the case was one of a number raising the same issue of judicial disqualification.

Last week the CCA addressed a second such case, but reached a very different conclusion. With a published opinion in United States v. Anderson, __ M.J. __, No. 20170158 (A. Ct. Crim. App. Feb. 5, 2020) (link to slip op.), a three-judge panel of the CCA concludes that the military judge was not disqualified because the judge-advocate husband of the woman with whom the judge committed the misconduct was not otherwise involved in the case, and it also concludes that even if the military judge was disqualified it does not “risk undermining the public’s confidence in the judicial process.” Slip op. at 2.

Judge Schasberger – who wrote the opinion in Springer – writes for the panel.

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Last week the Army CCA issued this published, unanimous, en banc opinion in United States v. Springer, __ M.J. __, No. 20170662. Writing for the court, Judge Schasberger give us the bottom line up front:

At the time of appellant’s court-martial, the presiding military judge engaged in an inappropriate relationship with the wife of one of the prosecuting attorneys assigned to appellant’s case. This inappropriate relationship created the appearance that the military judge lacked impartiality in appellant’s court-martial. Under the circumstances of this case, we are compelled to set aside the findings of guilt and sentence and authorize a rehearing.

Slip op. at 1. The military judge is named in the CCA opinion: Lieutenant Colonel Richard Henry.

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On Friday the en banc Navy-Marine Corps CCA issued this opinion on reconsideration in United States v. Begani, __ M.J. __, No. 201800082, splitting 4-3 to affirm the validity of Articles 2(a)(4) and 2(a)(6), which apply court-martial jurisdiction to retired members of the regular components and to members of the Fleet Reserve (Navy) and Fleet Marine Corps Reserve.

The decision is a dramatic (but not unexpected) reversal of the decision of a three-judge panel of the court issued back in July and discussed here. If you’re not familiar with this case then you should probably read that post before continuing.

The panel had held that Articles 2(a)(4) and 2(a)(6) violate the Due Process Clause’s guaranty of equal protection of the laws because they do not also apply court-martial jurisdiction to retired reservists. I wrote in this second post that the panel’s decision was fundamentally flawed because the panel overlooked the fact that reserve retirees need not have any current connection to the service to receive their reserve retired pay. Citing numerous statutes, regulations, and court decisions, I explained that reserve retired service and reserve retired pay are mutually exclusive statuses, while regular retired pay is a direct consequence of regular retired service. That is a significant distinction between reserve and regular retirees that eliminates any equal protection argument (and if you’re not familiar with reserve retirement then you should also read that second post before continuing).

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Back in August we noted the allegation of murder against Coast Guard Seaman Tucker, and a news report stated that Tucker was placed into pretrial confinement pending a court-martial for murder, involuntary manslaughter, aggravated assault, maiming, obstructing justice, making a false statement, and failure to obey an order or regulation.

Tucker challenged that confinement, petitioning the Coast Guard CCA for a writ of habeas corpus. The CCA denied the writ in an order available here. In it, the CCA observed that:

There is probable cause to believe Petitioner committed an offense. The real issue here is whether it is foreseeable that Petitioner will not appear at future proceedings or will engage in serious criminal misconduct; and whether less severe forms of restraint are inadequate.

We note that the memoranda of the Commanding Officer and IRO contain a number of conclusory statements and leaps of logic that do little to explain why, given the individual circumstances of this case, it is foreseeable that Petitioner will not appear at future proceedings or will commit further serious misconduct and that lesser forms of restraint would be inadequate.

In re Tucker, No. 003-19, slip op. at 2 (C.G. Ct. Crim. App. Oct 18, 2019). Nevertheless, the CCA refused to further consider the merits of the petition because the case has not been referred and:

it is “well established that one who believes he is wronged by a decision directing his confinement prior to trial, must pursue the remedy provided by Article 138, [UCMJ], prior to seeking the intervention of this Court pursuant to [the All Writs Act].”

Slip op. at 3 (quoting Catlow v. Cooksey, 44 C.M.R. 160, 162 (C.M.A. 1971)). Article 138 provides service members with a formal complaint resolution process. Military justice matters are generally not the proper subject for such a complaint, but the CCA held that the fact that the case has not yet been referred “does not preclude Petitioner from seeking redress” under Article 138. Slip op. at 3 n.1.

The CCA’s decision in Tucker is interesting because it seems to be the first time that any court relied on Catlow (and insisted on exhaustion of the Article 138 remedy) since the decision in Courtney v. Williams, 1 M.J. 267 (C.M.A. 1976), that required a neutral and detached magistrate review the decision to place an accused into pretrial confinement. That requirement is implemented in R.C.M. 305, which establishes a comprehensive review process. There is, I think, a good argument that the R.C.M. 305 process (including reconsideration by the neutral officer under R.C.M. 305(i)(2)(E), and post-referral review by a military judge under R.C.M. 305(j)) removes the question from Article 138 entirely.

Nevertheless, the CCA’s decision likely has a short lifespan, because Congress gave military judges the ability to consider matters pre-referral when it created Article 30a in the Military Justice Act of 2016, and it expanded the list of matters that may be considered to include pretrial confinement in § 531 of the National Defense Authorization Act for Fiscal Year 2020. Accordingly, once the President implements the expanded Article 30a power, an accused’s pre-referral challenge to pretrial confinement will definitely be a judicial matter and the proper subject of a habeas petition.

With a recent opinion in United States v. Roberts, No. 20150023 (A. Ct. Crim. App. Dec. 11, 2019) (link to slip op.), a three-judge panel of the Army CCA rejects a claim of ineffective assistance of counsel with the conclusion that “defense counsel faced the Mount Everest of uphill battles to negate the government’s [evidence].” Slip op. at 7-8.

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Two years ago, in United States v. Harpole, 77 M.J. 231 (C.A.A.F. Feb. 14, 2018) (CAAFlog case page), CAAF held that the accused’s statements to a military victim advocate were not protected by the Mil. R. Evid. 514 victim advocate-victim privilege because a third party was present (to provide moral support to the accused) at the time the statements were made. But the circumstances of the case suggested that the victim advocate suspected the accused of an offense, and so CAAF remanded for a post-trial fact-finding hearing to determine if the accused received ineffective assistance of counsel when his defense counsel failed to move to suppress his statements due to a violation of Article 31.

The fact-finding hearing is complete and last month the Coast Guard CCA issued an opinion in the case finding no ineffective assistance of counsel because “a motion to suppress under Article 31(b) would not have succeeded.” United States v. Harpole, __ M.J. __, No. 1420 (C.G. Ct. Crim. App. Dec. 18, 2019) (link to slip op.). But the primary reason for that finding is surprising; the CCA holds that a victim advocate’s questioning does not trigger Article 31.

Writing for a three-judge panel, Judge Brubaker explains:

A victim advocate’s role is not to participate in a law enforcement or disciplinary inquiry. Rather, a victim advocate—much like a social worker or medical professional—provides support and services to individual servicemembers who report that they are crime victims. Extending Article 31(b) warning requirements to these services would result in precisely the type of “comprehensive and unintended reach” that our superior Court has consistently abjured. We thus hold that questioning by a victim advocate done solely within that role falls outside the intended reach of Article 31(b), UCMJ.

Slip op. at 7-8.

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Nearly eight years ago, in United States v. Hayes, 71 M.J. 112 (C.A.A.F. May 1, 2012) (CAAFlog case page), a unanimous CAAF reversed an Airman’s conviction for dereliction of duty in violation of Article 92 because the Airman:

willfully failed to refrain from drinking alcohol while under the age of 21, as it was his duty to do.

71 M.J. at 113. The alleged source of that duty? “The Nevada state law concerning consumption of alcohol by persons under the age of twenty-one.” Id. CAAF reversed the conviction because – while the prosecution argued to the military judge that obeying state laws was a custom of the service – no evidence was presented to the members during trial to show that Hayes “was bound by a military duty, stemming from a custom of the service and subject to sanction under Article 92(3), UCMJ, to obey Nevada’s alcohol law.” 71 M.J. at 114.

The prosecution in Hayes employed a dereliction theory because (it seemed) the Air Force didn’t have a general order prohibiting the underage consumption of alcohol. The Army, however, does have such an order: Army Regulation 600-85, paragraph 3-2c. That order states:

Underage drinking is prohibited. Army policy governing the minimum age for dispensing, purchasing consuming,and possessing alcoholic beverages is found in AR 215–1, chapter 10. Any underage Soldier using alcoholic beverageswill be referred to the ASAP for screening within 5 working days except when permitted by AR 215–1, paragraph10–1f.

But with a recent opinion in United States v. Helton, No. 20190094 (A. Ct. Crim. App. Dec. 18, 2019) (link to slip op.), a three-judge panel of the Army CCA holds that the order is not punitive.

Judge Rodriguez writes:

“[I]f a regulation does not contain language establishing that it is a punitive regulation, a violation of the regulation is not a criminal offense under Article 92(1) [UCMJ].” United States v. Shavrnoch, 49 M.J. 334, 336 (C.A.A.F. 1998). Paragraph 3-2c of AR 600-85 does not contain language stating it is punitive. Accordingly, appellant pleaded guilty to a charge “[i]nvolving a legal standard that does not constitute an offense under Article 92, UCMJ, undermining appellant’s conviction ‘as a matter of law.”‘ Id. at 339 (quoting United States v. Faircloth, 45 M.J. 172, 174 (C.A.A.F. 1996)) (citing Prater, 32 M.J. at 436).

Slip op. at 3 (modification in original). A footnote adds:

Other provisions in AR 600-85 specifically state that violations of that provision are punishable under the UCMJ. See, e.g., paras. 4-2q, 4-1 lh, 10-2a, and 10-4a.

Slip op. at 3 n.2.

A court of criminal appeals “may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as the Court finds correct in law and fact and determines, on the basis of the entire record, should be approved.” Article 66(d)(1) (2019) (emphasis added).

That requirement for a review of the factual sufficiency of a court-martial conviction is not only a unique power of the CCAs, but it is also a power that Congress recently reenacted, in the Military Justice Act of 2016 (moving the requirement from its former location, in Article 66(c)).

Reversals for factual insufficiency are, however, very rare. But last week, in United States v. Gilpin, No. 201900033 (N-M. Ct. Crim. App. Dec. 30, 2019) (link to slip op.), a three-judge panel of the Navy-Marine Corps CCA reversed a conviction of sexual assault of a person who was asleep and otherwise unaware, concluding that the evidence – consisting primarily of the alleged victim’s lack of memory after overconsuming alcohol  – was factually insufficient to sustain the conviction.

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Last month – in advance of the NMCCA withdrawing its opinion in United States v. Begani, No. 201800082 (N.M. Ct. Crim. App. Jul 31, 2019) (decision analyzed here and here) – the Air Force CCA issued a published decision in United States v. Ballard, 79 M.J. 675, No. 39440 (A.F. Ct. Crim. App. Sep. 30, 2019) (link to slip op.), in which the CCA rejected a constitutional challenge to court-martial jurisdiction over retired members. Writing for a three-judge panel of the CCA, Judge Lewis explained:

We conclude Appellant was undoubtedly a retired member of the regular Air Force entitled to retired pay at the time he was recalled to active duty for purposes of facing a court-martial. He committed all of the offenses to which he pleaded guilty while on active duty. We note our superior court has repeatedly upheld the exercise of court-martial jurisdiction in the face of challenges similar to one Appellant makes in this case. See, e.g., United States v. Sloan, 35 M.J. 4, 7 (C.M.A. 1992), overruled on other grounds by United States v. Dinger, 77 M.J. 447, 453 (C.A.A.F. 2018); Pearson v. Bloss, 28 M.J. 376, 378–80 (C.M.A. 1989); United States v. Hooper, 26 C.M.R. 417, 421–25 (C.M.A. 1958). We find the Congress acted well within the authority entrusted to them by the Constitution’s Make Rules Clause when they permitted court-martial jurisdiction of retired members of a regular component of the armed forces who are entitled to pay in Article 2(a)(4).

Slip op. at 7-8.

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On July 31, a three-judge panel of the NMCCA issued an astonishing opinion in United States v. Begani, No. 201800082 (N.M. Ct. Crim. App. Jul 31, 2019) (link to slip op.), concluding that Articles 2(a)(4) and 2(a)(6) of the UCMJ – which apply court-martial jurisdiction to retired members of the regular components – violates the Due Process Clause’s guaranty of equal protection of the laws because it does not also apply court-martial jurisdiction to retired reservists.

I analyzed the decision in a pair of posts here and here, the latter of which called the opinion fundamentally flawed because reserve (non-regular) retirement is a pension while regular retirement is very much not; a significant distinction between reserve and regular retirees that justifies their different treatment under the UCMJ.

In this order issued last week, the NMCCA withdrew the opinion and announced en banc reconsideration:

Upon consideration of Appellee’s Motion for Reconsideration and Suggestion for En Banc Consideration, filed on 4 September 2019, it is, by the Court, this 1st day of October 2019,

1. That the Motion is GRANTED. The Court En Banc will consider the case.

2. That the Court’s 31 July 2019 decision is hereby WITHDRAWN.

3. That no briefs or arguments will be accepted unless required by further order of the Court.

Article 6b – which codifies rights for victims and was first enacted as part of the 2013 changes to the UCMJ, and then modified the following year – was the #6 Military Justice Story of 2016 and the #9 Military Justice Story of 2018. The provision remains a developing area of military law, with CAAF’s decision this term in United States v. Hamilton, 78 M.J. 335 (C.A.A.F. Feb. 28, 2019) (CAAFlog case page), that avoided deciding whether a statement by a crime victim admissible under R.C.M. 1001A (the President’s implementation of the Article 6b right to be reasonably heard) (moved to R.C.M. 1001(c) in the 2019 MCM) is evidence that is subject to any of the Military Rules of Evidence.

A three-judge panel of the Air Force CCA recently issued a published decision addressing the Article 6b(a)(4)(B) right to be reasonably heard at a sentencing hearing, in United States v. Shoup, 79 M.J. 668, No. 39487 (A.F. Ct. Crim. App. Aug 23, 2019) (link to slip op.). Senior Airman Shoup pleaded guilty to possession and distribution of child pornography and attempted sexual abuse of a child. During the sentencing phase of the court-martial, the prosecution offered three exhibits as victim impact statements under Article 6b and R.C.M. 1001A. The military judge admitted the exhibits over defense objection, and the CCA finds that to be error. Considering the nature of the statements and the seriousness of the underlying misconduct, however, the CCA finds the error to be harmless.

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