CAAFlog » October 2017 Term

CAAF decided the Navy case of United States v. Barry, 78 M.J. 70, No. 17-0162/NA (CAAFlog case page) (link to slip op.), on Wednesday, September 5, 2018. A divided court agrees that the appellant’s conviction of sexual assault in violation of Article 120(b) must be reversed, but it disagrees about how and why that reversal should occur. The majority orders the charge and specification dismissed with prejudice, while the dissenters would “instruct the convening authority to withdraw the action and substitute a corrected action disapproving the finding of guilty.” Diss. op. at 16.

Chief Judge Stucky writes for the court, joined by Judge Ohlson and Senior Judge Erdmann (participating because Judge Sparks recused himself). Judge Ryan dissents, joined by Judge Maggs.

CAAF granted review of two issues questioning whether unlawful influence tainted the convening authority’s approval of the findings and sentence:

Specified issue: Whether a Deputy Judge Advocate General can commit unlawful command influence under Article 37, UCMJ, 10 U.S.C. § 837 (2012).

Granted issue: Whether military officials exerted actual unlawful command influence on the convening authority or created the appearance of doing so.

After Senior Chief Special Warfare (E-8) Barry was convicted of sexual assault in violation of Article 120(b), and sentenced to confinement for three years and a dishonorable discharge, the convening authority – Rear Admiral Patrick Lorge (who has since retired) – approved the findings and sentence as adjudged. The NMCCA then remanded the case for a new action because Lorge’s Staff Judge Advocate erroneously advised Lorge that he had no power to reverse the findings or reduce the sentence (based on the SJA’s reading of ALNAV 051/14, which I dissected here).

Lorge then took a closer look at the case, and he began to doubt the findings. He thought about reversing the conviction (a power he had in this case), but Lorge’s SJA advised against it. So Lorge discussed the case with then-Rear Admiral Crawford who at the time was the Deputy Judge Advocate General (DJAG) of the Navy and with whom Lorge had previously served. Crawford later became the actual Judge Advocate General of the Navy (TJAG) and was promoted to Vice Admiral. According to Lorge, Crawford advised Lorge “that approving the findings and sentence was the appropriate course of action in [Barry]’s case.” Slip op. at 6.

Ultimately, Lorge again approved the findings and sentence, but he modified the automatic reduction in rank to retain Barry at E-7. Then – in an unusual move – Lorge added the following language to his convening authority’s action:

In my seven years as a General Court-Martial Convening Authority, I have never reviewed a case that has given me greater pause than the one that is before me now. The evidence presented at trial and the clemency submitted on behalf of the accused was compelling and caused me concern as to whether SOCS Barry received a fair trial or an appropriate sentence. I encourage the Appellate Court to reconcile the apparently divergent case law addressing the testimony that an accused may present during sentencing for the purpose of reconsideration under R.C.M. 924. Additionally, having personally reviewed the record of trial, I am concerned that the judicial temperament of the Military Judge potentially calls into question the legality, fairness, and impartiality of this court-martial. The validity of the military justice system depends on the impartiality of military judges both in fact and in appearance. If prejudicial legal error was committed, I strongly encourage the Appellate Court to consider remanding this case for further proceedings or, in the alternative, disapproving the punitive discharge pursuant to Article 66(c)[,] UCMJ, thereby allowing the accused to retire in the rank that he last honorably served.

Slip op. at 2-3 (marks in original). On appeal, the Navy-Marine Corps CCA affirmed the findings and sentence, rejecting four assignments of error. CAAF summarily affirmed on April 27, 2017.

But after CAAF summarily affirmed, Lorge provided an affidavit to Barry’s defense counsel claiming that he didn’t believe the evidence proved Barry’s guilt beyond a reasonable doubt and that he wanted to disapprove the findings and sentence, however he did not do so because of political pressures related to the politicization of the military’s response to sexual assault (the #1 Military Justice Story of 2012). The primary source of that pressure was said to have been Lorge’s discussion of the case with Crawford. Barry then asked CAAF to reconsider its action, and CAAF ordered a post-trial fact-finding hearing to investigate the affidavit. The Chief Trial Judge of the Air Force presided over the hearing and then issued findings last year (discussed here).

CAAF then granted review because, as Chief Judge Stucky’s majority opinion explains in the first sentence:

It is not every day that a general court-martial convening authority begs our forgiveness for his failure of leadership in approving findings he believed should not be approved.

Slip op. at 1 (emphasis added). That is, however, the harshest criticism of Lorge in the decision.

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CAAF decided the Army case of United States v. Jones, 78 M.J. 37, No. 17-0608/AR (CAAFlog case page) (link to slip op.) on Tuesday, July 31, 2018. Applying the old corroboration rule (that was effective prior to this 2016 change), CAAF unanimously finds that sufficient independent evidence was admitted to corroborate a confession to larceny of military property, even after excluding the statement of a co-conspirator that the Army Government Appellate Division conceded was improperly admitted (and used as corroboration at trial). Because the confession was otherwise corroborated, the erroneous admission of the co-conspirator’s statement is harmless and the findings, sentence, and decision of the Army CCA are affirmed.

Judge Maggs writes for a unanimous court.

CAAF granted review of three issues that focused on the admission of the a co-conspirator’s statement:

I. Whether admission of an alleged co-conspirators confession to law enforcement violated M.R.E. 801(d)(2)(E).

II. Whether admission of the same confession violated Appellant’s Sixth Amendment right to confrontation.

III. Whether use of the confession to corroborate otherwise unsupported essential elements in Appellant’s own confession violated M.R.E. 304(g) and United States v. Adams, 74 M.J. 137 (C.A.A.F.).

Chief Warrant Officer (W2) Jones was convicted of two specifications of larceny of military property, by a general court-martial composed of a military judge alone, and was sentenced to confinement for 17 days, a reprimand, and to be dismissed. Jones was acquitted of a single specification of conspiracy to commit the charged larceny offenses.

In late 2013 and early 2014, Jones was a mobilized reservist deployed to Afghanistan where he “served as the officer in charge of his unit’s woodshop.” Slip op. at 3. Jones was convicted stealing tools from the woodshop and mailing them to his home in North Carolina (to use at the high school where he was a teacher in civilian life). Jones confessed those facts to Army investigators. But that confession alone was not enough to convict Jones, because a confession is inadmissible unless it is corroborated by independent evidence. See Mil. R. Evid. 304(c). See also our #10 Military Justice Story of 2015 (Confessions).

There was, however, an accomplice. Master Sergeant Addington participated in the acts, and he also confessed to military investigators. The prosecution offered that confession into evidence as a statement made by a co-conspirator during and in furtherance of the conspiracy. Such statements are not hearsay and are admissible under Mil. R. Evid. 801(d)(2)(E) (and the equivalent Fed. R. Evid. 801(d)(2)(E)). The defense objected but the military judge admitted Addington’s confession (providing ample corroboration for Jones’ confession) and Jones was convicted.

It’s pretty hard to defend the military judge’s decision to admit Addington’s confession to military investigators as a statement by a co-conspirator made during and in furtherance of the conspiracy, because confessing to the conspiracy is a pretty bad way to further it. Nevertheless, the Army court summarily affirmed Jones’ convictions. But after CAAF granted review, the Army Appellate Government Division conceded that the military judge was wrong to admit Addington’s confession. The Government Division maintained, however, that the military judge’s error was harmless because other evidence admitted at trial provided sufficient corroboration for Jones’ confession.

Today CAAF agreed. Writing for the unanimous court, Judge Maggs explains that: “We conclude that the military judge did not err in admitting Appellant’s statement. We further conclude that the military judge improperly admitted MSG Addington’s statement, but we find that the error was harmless beyond a reasonable doubt.” Slip op. at 2.

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Today CAAF issued a summary disposition in United States v. Burris, 78 M.J. 56, No.17-0605/AR (CAAFlog case page), reversing the Army CCA and remanding for a new Article 66 review:

On further consideration of the granted issue (77 M.J. 138 (C.A.A.F. 2017)), the briefs of the parties, and oral argument, we note that the United States Army Court of Criminal Appeals concluded that the mere failure to object to evidence and findings argument waives challenges to such evidence and argument and that the Government concedes that the lower court’s reasoning was in error. We agree with the Government that a mere failure to object to the admission of evidence and to findings argument constitutes forfeiture, not waiver. United States v. Andrews, 77 M.J. 393 (C.A.A.F. 2018); United States v. Knapp, 73 M.J. 33, 36 (C.A.A.F. 2014). We further note that the Government has argued for the first time in this Court that Appellant affirmatively waived his challenges to the admission of character evidence and argument. We leave this argument for the lower court to address on remand.

Accordingly, it is, by the Court, this 19th day of July, 2018,


That the decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals for a new review under Article 66, Uniform Code of Military Justice, 10 U.S.C. § 866 (2012).

Disclosure: I represent Major Burris as his civilian appellate defense counsel and I argued this case at CAAF on his behalf.

Case Links:
 ACCA decision
• ACCA decision on reconsideration
 Blog post: CAAF grants
 Appellant’s brief 
 Appellee’s (Army Gov’t App. Div.) brief
 Appellant’s reply brief
• Blog post: Argument preview
• Oral argument audio
• Blog post: CAAF summary decision

CAAF decided the Army case of United States v. Christensen, 78 M.J. 1, No. No. 17-0604/AR (CAAFlog case page) (link to slip op.), on Tuesday, July 10, 2018. In a narrowly-written opinion, the court distances itself from (but does not overrule) its precedent regarding when a servicemember is discharged from the service and court-martial jurisdiction ends. CAAF concludes that under the specific facts of this case, reason and policy dictate that the appellant was discharged prior to his court-martial and so the tribunal lacked personal jurisdiction to try him. The court reverses the findings and sentence, and the decision of the Army CCA, and dismisses the charges.

Judge Ohlson writes for the court, joined by Chief Judge Stucky and Judge Sparks. Judge Maggs writes separately, concurring, joined by Judge Ryan.

CAAF granted review of a single issue:

Whether Appellant was subject to court-martial jurisdiction.

In 2014, Private First Class (E-3) Christensen was convicted by a general court-martial of one specification of sexual assault in violation of Article 120 (2012), and sentenced to confinement for eight years, total forfeitures, reduction to E-1, and a dishonorable discharge.

A year before the trial – in March 2013 – Christensen was pending administrative separation from the Army and “was arrested by civilian authorities for a suspected sexual assault involving another soldier and he was placed in civilian confinement.” Slip op. at 2. While in that civilian confinement, Christensen’s administrative separation was approved by the separation authority, a sergeant “fully cleared [Christensen] from post,” his military identification card was taken from him, and a noncommissioned officer visited him in April and told him “he was ‘out of the Army now’ and wished him good luck.” Slip op. at 2.

That, however, is not enough to discharge a servicemember from the Armed Forces under CAAF’s precedent. Rather, a servicemember is discharged (and court-martial jurisdiction ends) only after three things happen: “(1) the delivery of a discharge certificate (a DD Form 214); (2) a final accounting of pay; and (3) the completion of the clearing process that is required under service regulations.” Slip op. at 7 (citing United States v. Hart, 66 M.J. 273, 276-79 (C.A.A.F. 2008)).

Christensen was cleared, and a DD-214 was mailed to his home (stating his date of discharge as April 17, 2013), but his final accounting of pay was delayed by the chief of justice (senior prosecutor) at Fort Stewart, GA. That military prosecutor:

acted on his own authority and without coordinating with anyone in command. Further, neither he nor the OSJA contacted Appellant to let him know that they were halting his final pay. At the jurisdiction motions hearing, the chief of justice testified that he wanted to have the ability to exercise military jurisdiction over Appellant until he could “confirm that the civilians were going to prosecute this [sexual assault case] in a way that we felt was appropriate.”

Slip op. at 3-4 (marks in original). Judge Ohlson’s majority opinion also observes that:

Despite the actions of the chief of justice beginning in April 2013, it was not until August or September when the brigade commander formally requested a revocation of Appellant’s DD Form 214. Then on September 26, the Government preferred one charge and specification against Appellant. On September 30, the soldier processing center voided Appellant’s DD Form 214 and revoked his discharge. However, it was not until December that anyone from Appellant’s unit notified him that he was still considered a member of the armed forces and that he was going to be court-martialed.

Slip op. at 5. Thereafter Christensen “had difficulty using many of the facilities that would be readily available to active duty soldiers—such as the dining hall—because he was not on the roster of active duty military personnel. He likewise did not have an identification card, assigned quarters, or any of his own uniforms. Moreover, [Christensen] was not paid from April 2013 until January 2014.” Slip op. at 5-6.

Christensen challenged the existence of jurisdiction at trial and also on appeal at the Army CCA, but the challenge was denied on the basis that “there was no final accounting of pay” (as required under CAAF’s precedent, including Hart), and so there was no valid discharge. Slip op. at 6.

CAAF does not disagree with the conclusion that there was no final accounting of pay, but the majority nevertheless finds no jurisdiction to try Christensen by court-martial in 2014 because “to hold otherwise would clearly go against ‘reason or policy.'” Slip op. at 7 (quoting United States v. Nettles, 74 M.J. 289, 291 (C.A.A.F. 2015) (CAAFlog case page)).

Judge Maggs’ concurring opinion agrees with the majority’s conclusion that there was no jurisdiction, but it “prioritize[s] statutes and regulations over judge-made law.” Con. op. at 3. Seemingly uncomfortable with the majority’s embrace of a reason or policy exception to the three-part test from Hart, Judge Maggs and Judge Ryan would determine the existence of a jurisdiction-ending discharge by first identifying whether a statute or regulation “specifies when a discharge has occurred,” and if one does then “the Court would simply apply that statute or regulation.” Con. op. at 2. And in this case there is such a regulation: Army Regulation 635-200, “which provides, with certain exceptions not relevant here, that a discharge ‘is effective at 2400 on the date of notice of discharge to the Soldier.'” Con. op. at 2 (quoting AR 635-200 at ¶ 1-29.c).

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This week at SCOTUS: In the wake of its opinion in Ortiz v. United States, 585 U.S. __, No. 16-1423 (June 22, 2018) (analyzed here), the Supreme Court denied the petitions in Alexander, Abdirahman, Cash, and Richards (all of which involved Ortiz trailer issues). The Court also denied the petitions in Bales (denial noted here) and Gray (analysis of CAAF’s opinion is here and here).

I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking two cases:

This week at CAAF: CAAF completed its oral argument calendar for the term. Details about the cases reviewed by CAAF this term are available on our 2017 Term of Court page.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on July 10, 2018.

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Collins on Thursday, June 28, 2018, at 10 a.m. No additional information is available on the CCA’s website.

This week at the CGCCA: The next scheduled oral argument at the Coast Guard CCA is on August 9, 2018. The argument will occur at the NMCCA’s courtroom in the Washington Navy Yard.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

CAAF decided the Army case of United States v. Armstrong, 77 M.J. 465, No. 17-0556/AR (CAAFlog case page) (link to slip op.), on Thursday, June 28, 2018. The court holds that assault consummated by a battery is not a lesser included offense of abusive sexual contact by causing bodily harm because even though both offenses require bodily harm, a battery must involve unlawful force or violence, while abusive sexual contact need only involve a certain mental state. Nevertheless, reviewing for plain error (because the defense failed to preserve the issue with a timely objection) CAAF finds no material prejudice to the defense in this case and affirms the conviction of assault consummated by a battery and the decision of the Army CCA.

Judge Maggs writes for the court, joined by Chief Judge Stucky and Judge Ryan. Judge Ohlson writes a separate concurring opinion, joined by Judge Sparks.

Captain (O-3) Armstrong was charged with abusive sexual contact by causing bodily harm in violation of Article 120(d) (incorporating Article 120(b)(1)(B)) (2012). A general court-martial composed of members convicted Armstrong of assault consummated by a battery as a lesser included offense, and sentence him to be dismissed. The Army CCA summarily affirmed the findings and sentence.

The factual basis for the convicton was that the alleged victim (the civilian wife of another officer) reported that she fell asleep on a couch during a party and awoke to Armstrong touching her. The charge sheet alleged that Armstrong:

did . . . commit sexual contact upon [Mrs. G.]., to wit: touching through the clothing the genitalia of the said [Mrs. G.], by causing bodily harm to the said [Mrs. G.], to wit: wedging his hands between her thighs.

Slip op. at 2 (quoting charge sheet) (modifications in original). Sexual contact is a legal term of art that encompasses touching “with an intent to abuse, humiliate, or degrade any person,” or “with an intent to arouse or gratify the sexual desire of any person.” Article 120(g)(2)(A) and (B).

In advance of trial Armstrong’s defense counsel requested instructions relevant to a possible lesser included offense of assault consummated by a battery, including “a mistake of fact instruction with regard to battery, the lesser included offense.” Slip op. at 3 (marks omitted) (emphasis added). Despite this and other requested instructions referencing battery as a lesser included offense, CAAF finds that:

Defense counsel, however, never expressly agreed that assault consummated by a battery was a lesser included offense of abusive sexual contact by causing bodily harm.

Slip op. at 3. But at trial, when it was time to instruct the members, the prosecution requested that they be instructed that they could convict Armstrong of assault consummated by a battery as a lesser included offense of abusive sexual contact. The military judge asked Armstrong’s defense counsel for their position, to which the defense responded: “Taking no position on it, judge.” Slip op. at 3 (quoting record).

Bad move. That equivocation is why CAAF now affirms Armstrong’s conviction of assault consummated by a battery despite finding that it is not actually a lesser included offense of abusive sexual contact.

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CAAF decided the Army case of United States v. Williams, 77 M.J. 459, No. 17-0285/AR (CAAFlog case page) (link to slip op.), on Wednesday, June 27, 2018. In this Hills trailer case involving the improper use of charged offenses for propensity purposes, CAAF holds that the Army CCA wrongly held that the circumstances involve an exception to Hills. The court reverses convictions of rape and forcible sodomy, affirms other convictions, and authorizes a rehearing.

Chief Judge Stucky writes for a unanimous court.

In 2013, Sergeant (E-5) Williams was convicted of raping his first wife (Charge I), and forcibly sodomizing and battering his second wife (Charges II and III), by a general court-martial composed of members with enlisted representation. Before trial, the prosecution gave notice of its intent to use the charged sexual offenses against each wife as evidence of Williams’ propensity to commit the charged offenses against the other wife; a tactic that was somewhat common in military practice at the time but that CAAF later held to be improper, in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page).

Williams’ defense counsel filed a motion to preclude the prosecution from using the charged offenses for propensity purposes. “[T]he military judge questioned the ripeness of the issue, signaled that the proper time to address the issue would be when discussing panel instructions, and did not then explicitly rule on the motion.” Slip op. at 4. At trial, however, the defense did not renew its objection, and a different military judge instructed the panel that it could use the charged rapes (Charge I) as evidence of Williams’ propensity to commit the charged forcible sodomy (Charge II), and also that:

You may also consider the evidence of such other acts of sexual assaults for its tendency, if any, to show the accused’s propensity or predisposition to engage in sexual assault.

Slip op. at 5 (quoting record). Williams was convicted. On appeal the Army CCA affirmed the convictions, concluding that “this case is an exception to Hills.” United States v. Williams, No. 20130582, slip op. at 2 (A. Ct. Crim. App. Jan 12, 2017) (link to slip op.). The CCA reasoned:

Charge I is entirely unaffected by Hills. When deliberating on evidence with regards to the Specification of Charge I, the panel was not allowed to consider propensity. Additionally, with regards to the forcible sodomy specifications contained in Charge II, the only propensity evidence the panel was allowed to consider stemmed from a specification that had been independently proven beyond a reasonable doubt.

CCA op. at 2 (emphasis in original). Put differently, the CCA concluded that the propensity instruction only allowed the members to use Charge I to prove Charge II, and since Williams was convicted of Charge I first, the facts of that charge were properly used to prove Charge II.

CAAF wholly rejects the CCA’s reasoning in yesterday’s opinion, with Chief Judge Stucky expressing concern that “this is the third case in which we have had to correct a Court of Criminal Appeals’ judgment on this issue,” slip op. at 1-2, and that “in the wake of Hills, our lower courts have attempted to impermissibly narrow that holding by carving out exceptions that run contrary to an accused’s presumption of innocence,” slip op. at 6.

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CAAF decided the interlocutory Army case of United States v. Hendrix, 77 M.J. 454, No. 18-0133/AR (CAAFlog case page) (link to slip op.), on Tuesday, June 19, 2018. Rejecting the military judge’s conclusion that a dismissal of charges (followed shortly by a re-preferral) was a subterfuge to avoid the regulatory (R.C.M. 707) speedy trial right, CAAF finds no speedy trial violation and reverses the military judge’s decision that dismissed the charges with prejudice, affirming the decision of the Army CCA.

Judge Sparks writes for a unanimous court.

The accused, Private (E-2) Hendrix, was charged on November 29, 2016, with two specifications of sexual assault. The alleged victim declined to participate in any prosecution, and the convening authority dismissed the charges. But then – three days later – the alleged victim changed her mind and the charges were re-preferred one day after that. Hendrix was then arraigned on June 8, 2017; 156 days after the first preferral.

That arraignment exceeded the 120-day deadline in R.C.M. 707. Hendrix moved to dismiss, and the military judge granted the motion and dismissed the specification with prejudice after concluding that the convening authority’s dismissal of the original charges was a subterfuge. But the prosecution appealed and the Army CCA reversed, concluding that the dismissal was not a subterfuge because it was based on the alleged victim’s unwillingness-turned-willingness to participate. CAAF then granted review to determine:

Whether the military judge abused his discretion by dismissing the charge and specifications with prejudice for a violation of R.C.M. 707.

He did, explains Judge Sparks, because “dismissal and repreferral are fully permissible under the provisions of R.C.M. 707.” Slip op. at 5. As for the alleged victim’s vacillating willingness to participate, the court finds that this actually supported the convening authority’s action, because “the fact that the complaining witness changed her mind about testifying dramatically changed the strength of the Government’s case.” Slip op. at 6.

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CAAF decided the Marine Corps case of United States v. Dinger, 77 M.J. 447, No. 17-0510/MC (CAAFlog case page) (link to slip op.), on Monday, June 18, 2018. The court holds that a retired member of the armed forces can be sentenced to a punitive discharge, affirming the decision of the Navy-Marine Corps CCA and the adjudged sentence in this case.

Chief Judge Stucky writes for a unanimous court.

Gunnery Sergeant (E-7) Dinger, USMC (Ret.), pleaded guilty to a number of child exploitation offenses, all of which were committed after Dinger entered retired status following the completion of 20 years of enlisted service in the active component of the Marine Corps. A general court-martial composed of a military judge alone sentenced Dinger to confinement for nine years and a dishonorable discharge, and the convening authority suspended all confinement in excess of 8 years in accordance with a pretrial agreement.

The military judge rejected a trial-stage argument that the sentence could not lawfully include a punitive discharge (because of Dinger’s retired status), and the Navy-Marine Corps CCA again rejected the argument on appeal. CAAF then granted review of a single issue:

10 U.S.C § 6332 states that when a person is placed in a retired status, this “transfer is conclusive for all purposes.” Can a court-martial lawfully sentence a retiree to a punitive discharge?

In yesterday’s opinion Chief Judge Stucky explains that CAAF agrees with the military judge and the NMCCA, overruling precedent insofar as it supports a different outcome.

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CAAF decided the Air Force case of United States v. Hardy, 77 M.J. 438, No. 17-0553/AF (CAAFlog case page) (link to slip op.), on Tuesday, June 5, 2018. A somewhat fractured court concludes that an unconditional plea of guilty waives any issue of unreasonable multiplication of charges (UMC) (a doctrine that addresses uniquely-military factors increasing the potential for prosecutorial overreach). The decision both extends and affirms the reasoning of the Air Force CCA that found waiver in a published decision almost one year ago today (analyzed here).

Judge Maggs writes for the court, joined by Judges Ryan and Sparks. Chief Judge Stucky concurs. Judge Ohlson dissents. This is Judge Maggs’ first opinion of the court.

Captain (O-3) Hardy pleaded guilty to numerous child sex offenses and was sentenced to confinement for 16 years and one day, total forfeitures, and a dismissal. Hardy’s defense counsel did not seek relief from any UMC at trial. A pretrial agreement limited Hardy’s confinement to 12 years. The pretrial agreement did not, however, include a relatively-common term agreeing to waive all waivable motions.

Waiver is the intentional relinquishment or abandonment of a known right, extinguishes an error, and was the basis for the #3 Military Justice Story of 2017. The mere failure to raise an issue, however, is generally forfeiture, not waiver. A forfeited error is reviewed for plain error (where the burden is on the appellant to prove error that is both plain and prejudicial).

In United States v. Gladue, 67 M.J. 311 (C.A.A.F. 2009) (discussed here), CAAF split 3-2 to find that a waive all waivable motions provision waived – rather than merely forfeited – any objection to both multiplicity and unreasonable multiplication of charges. Without such a provision in Hardy’s case, however, Hardy’s appellate defense counsel raised UMC for the first time on appeal. But the Air Force CCA found waiver nonetheless. In a published decision a three-judge panel of the CCA concluded that:

where Appellant both failed to raise unreasonable multiplication of charges at trial and pleaded guilty unconditionally, we find he waived his claim of unreasonable multiplication of charges.

United States v. Hardy, 76 M.J. 732, 739 (A.F. Ct. Crim. App. 2017). CAAF then granted review to determine:

Whether the Air Force Court of Criminal Appeals erred by holding that Appellant waived, rather than forfeited, his claim of unreasonable multiplication of charges.

In today’s opinion four judges agree that the Air Force court was right and any unreasonable multiplication of charges was waived by Hardy’s unconditional plea and failure to object at trial. But Judge Maggs and the majority reach that result with an analysis that Chief Judge Stucky does not join. Judge Ohlson, in turn, doesn’t reach that result at all, concluding that a waiver must be more explicit than the mere failure to object at trial.

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CAAF decided the Army case of United States v. Kelly, 77 M.J. 404, No.17-0559/AR (CAAFlog case page) (link to slip op.), on Wednesday, May 23, 2018. In a short, tightly-written opinion, CAAF holds that a court of criminal appeals does have the power to disapprove a mandatory minimum punitive discharge, reversing the published en banc (but non-unanimous) decision of the Army CCA.

Chief Judge Stucky writes for a unanimous court.

Disclosure: I represent Sergeant Kelly as his civilian appellate defense counsel and I argued this case at CAAF on his behalf.

Sergeant (E-5) Kelly was convicted of abusive sexual contact and sexual assault, and was sentenced to confinement for one year, total forfeitures, reduction to E-1, and a dishonorable discharge. The punishment of dishonorable discharge was mandatory under Article 56(b) (as enacted as part of the 2013 changes to the UCMJ; analyzed here).

“On appeal before the ACCA, [Kelly] argued that the mandatory minimum sentence of a punitive discharge was inappropriately severe.” Slip op. at 6. The CCA, however, held that it lacked the authority to grant relief. “[T]he en banc ACCA, in a sharply divided 6-4 vote, affirmed, and did not reach the question of whether Appellant’s sentence ‘should be approved.'” Slip op. at 2-3 (quoting Kelly, 76 M.J. at 807). CAAF then granted review to determine:

Whether the Court of Criminal Appeals has the authority to disapprove a mandatory minimum punitive discharge.

The court later specified a second issue involving improper argument by the trial counsel:

In light of this Court’s decisions in United States v. Sewell, 76 M.J. 14 (C.A.A.F. 2017) [CAAFLog case page] and United States v. Pabelona, 76 M.J. 9 (C.A.A.F. 2017) [CAAFlog case page] did the lower court err when it determined the standard of review was waived when there was no objection to improper argument?

Chief Judge Stucky’s opinion for the unanimous court points to yesterday’s opinion in United States v. Andrews, __ M.J. __ (C.A.A.F. May 22, 2018) (CAAFlog case page), to answer the specified issue, and answers the granted issue in the affirmative and sets aside the judgment of the Army court.

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CAAF decided the Navy case of United States v. Andrews, 77 M.J. 393, No.17-0480/NA (CAAFlog case page) (link to slip op.), on Tuesday, May 22, 2018. Rejecting the Navy-Marine Corps Appellate Government Division’s argument that the failure to object to improper argument at trial waives any error on appeal, CAAF concludes that any improper argument by the prosecution in this particular case was harmless and affirms the decision of the Navy-Marine Corps CCA.

Judge Sparks writes for a unanimous court.

Quartermaster Seaman Apprentice (E-2) Andrews pleaded guilty to fleeing apprehension, making a false official statement, wrongful use of marijuana, and larceny. But he pleaded not guilty to three sexual offenses. After a contested trial before members, Andrews was convicted of one of those three offenses: sexual assault of a person who was incapable of consenting due to impairment by alcohol.

The prosecution’s closing argument, however, crossed the line, and the Navy-Marine Corps CCA found that the trial counsel committed severe prosecutorial misconduct during that argument. Nevertheless, the CCA concluded that the misconduct did not prejudice Andrews. CAAF then granted review of a single issue questioning that no-prejudice conclusion:

The lower court found severe prosecutorial misconduct. Then it affirmed the findings and sentence, giving its imprimatur to the prosecutorial misconduct in Appellant’s case. Did the lower court err?

Judge Sparks’ opinion for the unanimous CAAF affirms the CCA’s action, but only after a lengthy and unexpected analysis of why the issue was not waived by the failure of Andrews’ defense counsel to object to some of the improper arguments at trial. That analysis is unexpected because the question of whether the failure to object to improper argument waives, rather than merely forfeits, any error was not clearly raised by the granted issue in this case, but rather is clearly raised in a different case still pending before CAAF: United States v. Burris, No.17-0605/AR (CAAFlog case page) (argued – by me for Major Burris – on Thursday, March 22, 2018).

Nevertheless, the Navy-Marine Corps Appellate Government Division asserted waiver in its brief to CAAF and during oral argument (previewed here) (audio here), and CAAF rejects it.

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CAAF decided the Air Force case of United States v. Barker, 77 M.J. 377, No. 17-0551/AF (CAAFlog case page) (link to slip op.), on Monday, May 21, 2018. Reviewing a written statement from a child pornography victim that was admitted during the sentencing phase of a court-martial under Rule for Courts-Martial 1001A – the President’s implementation of the Article 6b right of an alleged victim to be reasonably heard – CAAF concludes that the statement was not admissible under that rule because the victim did not actually participate in the proceeding (and perhaps didn’t even know about the appellant’s prosecution). Nevertheless, the court concludes that the erroneous admission of the statement was harmless because the appellant pleaded guilty and was sentenced by a military judge alone, the defense sentencing case was weak, and the prosecution’s sentencing case was otherwise strong. Accordingly CAAF affirms the findings, sentence, and decision of the Air Force CCA.

Judge Ryan writes for the court joined by all but Chief Judge Stucky, who dissents (because he would find the issue waived by the pretrial agreement).

Airman First Class (E-3) Barker pleaded guilty, pursuant to a pretrial agreement, to possession and viewing child pornography. A general court-martial composed of a military judge alone sentenced Barker to confinement for 30 months, reduction to E-1, total forfeitures, and a bad-conduct discharge.

During the sentencing phase of the court-martial the prosecution offered an exhibit consisting of three victim-impact letters dated December 2011, January 2013, and September 2013. All of the letters pre-dated Barker’s offenses. The defense made numerous objections to admission of the letters, but the military judge admitted the exhibit in its entirety.

On appeal, the Air Force CCA considered the letters under two different rules: R.C.M. 1001(b)(4), which allows the prosecution to present evidence in aggravation, and R.C.M. 1001A, which implements a crime victim’s Article 6b(a)(4)(B) “right to be reasonably heard at . . . [a] sentencing hearing relating to the offense.” The CCA found (in a published decision analyzed here) that “[w]hile the Prosecution did not indicate whether they were offering the statements under R.C.M. 1001(b)(4) or R.C.M. 1001A(e), both the trial defense counsel and the military judge treated the Prosecution’s offer as a victim exercising her right to be reasonably heard under R.C.M. 1001A.” United States v. Barker, 76 M.J. 748, 754 (A.F. Ct. Crim. App. 2017). The CCA then found that the December and September statements “lacked any evidence that would have permitted the military judge to determine that they were authentic and, if authentic, relevant to Appellant’s court-martial.” 76 M.J. at 756. The January statement, however, “indicated that it was written by the victim of the ‘Vicky series’ child pornography, one video of which Appellant downloaded.” Id. at 756. Accordingly, the CCA found that the January statement was admissible under R.C.M. 1001A, but the December and September statements were not. Nevertheless, the CCA concluded that the improperly-admitted statements were harmless because “all three statements were from the same victim.” Id. at 757.

CAAF then granted review of two issues challenging the CCA’s conclusion that the January statement was admissible and the improper consideration of the other statements was harmless:

I. Whether the Court of Criminal Appeals erred when it held proper foundation had been laid to admit evidence in aggravation.

II. Whether the Court of Criminal Appeals improperly conducted a review of the prejudice resulting from the military judge’s erroneous admission of evidence in aggravation.

Writing for the majority, Judge Ryan concludes that the January statement was not admissible as a statement of a crime victim under R.C.M. 1001A (and does not address whether it might have been admissible as evidence in aggravation under R.C.M. 1001(b)(4) because that issue was not before the court). But the majority concludes that the erroneous admission of the statement was harmless.

Chief Judge Stucky dissents – even though he agrees with the majority’s conclusions that the statement was improperly admitted under R.C.M. 1001A but was harmless – because he finds that a term of the pretrial agreement served to waive this issue and precludes Barker from raising it on appeal. Accordingly, Chief Judge Stucky would would vacate the grant of review as being improvidently granted.

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Audio of this week’s oral arguments at CAAF is available at the following links:

United States v. Hendrix, No. 18-0133/AR (CAAFlog case page): Oral argument audio.

United States v. Christensen, No. No. 17-0604/AR (CAAFlog case page): Oral argument audio.

CAAF will hear oral argument in the Army case of United States v. Christensen, No. No. 17-0604/AR (CAAFlog case page), on Tuesday, May 1, 2018, after the argument in Hendrix. A single granted issue bluntly questions the existence of personal jurisdiction:

Whether Appellant was subject to court-martial jurisdiction.

Private First Class (E-3) Christensen “had a history of being drunk on duty.” App. Br. at 3. That won him an early administrative separation (for alcohol abuse rehabilitation failure). But before he was separated, civilian authorities confined him on suspicion of sexual assault. Then Christensen received his separation orders with an effective date of April 17, 2013, and his DD-214 was mailed to his father on April 23, 2013. After that, Christensen was cut loose: his command stopped visiting him, it advised his father to sell his uniforms, his eligibility for military health insurance ended, and the Department of Veterans Affairs started sending him letters.

But the Army wasn’t done with him yet.

A week after the effective date of Christensen’s separation orders, the Chief of Justice (senior prosecutor) at Fort Stewart, GA, decided that “we are not quite ready for [Christensen] to be out of the Army yet.” App. Br. at 12 (quoting record). The Chief of Justice then contacted finance personnel and delayed the final accounting of Christensen’s pay (which included a debt to the Government based on Christensen’s civilian confinement prior to his discharge). A Chief of Justice doesn’t ordinarily have the power or responsibility to do this, but he did it nonetheless. It wasn’t until September 30, 2013 – a whopping five months later – that the separation orders and DD-214 were revoked. Then, on December 11, 2013, military authorities went to the residential alcohol rehabilitation program where Christensen was a patient, shackled him, and returned him to Fort Stewart where he was initially denied a uniform, an identification card, quarters, and even access to the dining facility. Christensen’s brief to CAAF explains that:

When appellant tried to eat at the dining facility, the noncommissioned officer in charge of providing a meal card said appellant “wasn’t in the system.” (JA 434–35). The unit then provided appellant with a memorandum to take to the dining facility, but a dining facility employee told him, “I can’t let you in with that.” (JA 434–35). After being rebuffed again, appellant “went back to the company,” and a sergeant major had to call the dining facility before appellant could eat. (JA 434–35).

App. Br. at 7.

That was in 2013 and Christensen was charged with a sexual offense. He challenged the existence of jurisdiction at trial, but lost. Then a general court-martial composed of a military judge alone convicted Christensen of one specification of sexual assault in violation of Article 120(a) (2012), and sentenced him to confinement for eight years, reduction to E-1, total forfeitures, and a dishonorable discharge.

Christensen renewed his jurisdictional challenge on appeal but the Army CCA rejected it, concluding that “the processing of appellant’s pay stopped at a stage similar to that in [United States v. Hart, 66 M.J. 273, 276 (C.A.A.F. 2008)], and we find the reasoning of the Hart court persuasive and controlling.” United States v. Christensen, No. 20140372, slip op. at 9 (A. Ct. Crim. App. June 15, 2017) (link to slip op.). Hart was something of a seminal case in the year of jurisdiction. Airman First Class Hart confessed to numerous drug offenses and was subsequently discharged for physical disability. Hart received his certificate of discharge (DD Form 214) on March 5, 2004, but two days later Hart’s squadron commander moved to stop Hart’s final pay and revoke the DD-214. Within a week Hart was reported as in an unauthorized absence status, and before the end of the month he was apprehended and returned to military control.

Hart mounted aggressive challenges to the existence of court-martial jurisdiction over him, but they were denied based on the provisions of 10 U.S.C. §§ 1168(a) and 1169, which are personnel statutes outlining the requirements for a discharge. §1168 states:

§1168. Discharge or release from active duty: limitations
(a) A member of an armed force may not be discharged or released from active duty until his discharge certificate or certificate of release from active duty, respectively, and his final pay or a substantial part of that pay, are ready for delivery to him or his next of kin or legal representative.

(b) This section does not prevent the immediate transfer of a member to a facility of the Department of Veterans Affairs for necessary hospital care.

(emphasis added). The question in Hart – and in Christensen – was whether the final pay or a substantial part of it was ready for delivery.

A deeply-divided CAAF ultimately affirmed the existence of personal jurisdiction in Hart. The majority concluded that:

The payment process was halted at the command’s request before the twenty days expired. The language of 10 U.S.C § 1168(a) setting limitations on discharge or release from active duty plainly precludes discharge unless “final pay or a substantial part of that pay” is “ready for delivery.” On the facts of this case, these criteria were not fulfilled. Accordingly, Hart was not effectively discharged and remained subject to court-martial jurisdiction pursuant to Article 2(a)(1), UCMJ.

Hart, 66 M.J. at 277. But a footnote to the first sentence quoted above included an important caveat:

This case does not involve any delay in the processing of Hart’s separation pay. We have not had occasion to address the jurisdictional effects if payment were not accomplished within a reasonable time frame established by applicable regulation for completion of the payment process.

66 M.J. at 277 n.5. The dissenters, however, rejected any binding effect of 10 U.S.C § 1168(a):

[Here] we have a case in which the discharge was ordered at the highest level within the military department, the servicemember cooperated in the separation process with no allegation of fraud on his part, the local command did not place a legal hold on the servicemember, the local command issued a discharge certificate to the servicemember, and the command did not seek to revoke the discharge until several days after the certificate was issued. Under these circumstances, Hart’s military status terminated on the date that the command delivered the discharge certificate to him.

66 M.J. at 280 (Effron, C.J., dissenting). Of the five CAAF judges who decided Hart, only two remain on the court: Chief Judge Stucky (who joined the dissent in Hart), and Judge Ryan (who was in the majority).

Now, in Christensen, CAAF will revisit both the underlying holding of Hart (that final pay must be ready for delivery for a discharge to terminate court-martial jurisdiction), and also the caveat from footnote 5 (the effect, if any, of delay) because where Hart involved only days of delay between issuance and revocation of the discharge certificate, Christensen involves a great many months and a plethora of aggravating factors.

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