CAAFlog » October 2017 Term

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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CAAF will hear oral argument in the interlocutory Army case of United States v. Hendrix, No. 18-0133/AR (CAAFlog case page), on Tuesday, May 1, 2018, at 9:30 a.m. The court 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.

“There are a number of sources of the right to a speedy trial in the military: (1) statute of limitations; (2) Due Process Clause of the Fifth Amendment; (3) Sixth Amendment speedy-trial guarantee; (4) Articles 10 and 33 of the [UCMJ]; (5) RCM 707, [Manual for Courts-Martial]; and (6) case law.” United States v. Reed, 41 M.J. 449, 451 (C.A.A.F. 1995). These sources broadly fall into three categories: Constitutional, statutory, and regulatory. This case involves the regulatory, R.C.M. 707, speedy trial right.

The accused, Private (E-2) Hendrix, was charged with two specifications of sexual assault on November 29, 2016. 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 agreed to consider the case.

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CAAF’s daily journal for Friday the 13th of April, 2018, has this entry:

No. 17-0162/NA. U.S. v. Keith E. Barry. CCA 201500064. Appellee’s motion for leave to file a motion to clarify position in response to questions at oral argument is denied.

Prior coverage here.

CAAF decided the Air Force case of United States v. Eppes, 77 M.J. 339, No. 17-0364/AF (CAAFlog case page) (link to slip op.), on April 10, 2018. Resolving challenges to two separate searches, the court unanimously concludes that one search was proper, and a majority find the fruits of the second search technically problematic but ultimately admissible. Accordingly, the appellant’s conditional pleas of guilty and the decision of the Air Force CCA are affirmed.

Judge Sparks writes for the court, joined by Chief Judge Stucky and Judge Ohlson. Judge Ryan writes separately, concurring in part and in the result. Senior Judge Effron dissents in part and would reverse the pleas.

CAAF granted review of two issues:

I. Whether the search of Appellant’s personal bags exceeded the scope of the search authorization where the agent requested authority to search Appellant’s person, personal bags, and automobile, but the military magistrate authorized only the search of Appellant’s person and automobile and did not authorize the search of Appellant’s personal bags.

II. Whether Appellant’s right to freedom from unreasonable search and seizure under the Fourth Amendment was violated when there was no probable cause for the 7 December 2012 warrant.

Captain (O-3) Eppes conditionally pleaded guilty to various offenses primarily involving travel claim fraud. The conditional pleas preserved his motion to suppress the evidence discovered in two searches: one on December 7, 2012 (of Eppes’ residence; Issue II), and the second on February 5, 2013 (of Eppes’ bags; Issue I). The December search was authorized by a warrant issued by the District of Columbia, while the February search was authorized by a military search authorization.

CAAF unanimously rejects the second issue, with Judge Sparks writing that “the December 7, 2012, search of Appellant’s residence was supported by probable cause and was therefore valid.” Slip op. at 7. Emphasizing that “probable cause is a flexible, commonsense standard,” slip op. at 7 (citation omitted), Judge Sparks explains that the civilian judge who permitted the search “was presented with sufficient facts to reasonably infer evidence of Appellant’s crimes, namely fraud against the government and other offenses, would probably be recovered on a computer in Appellant’s home.” Slip op. at 9 (citation omitted). The entire court, including Judge Ryan and Senior Judge Effron, agrees with that analysis.

But the first issue fractures the court somewhat, with Judge Sparks and the majority applying the inevitable discovery doctrine (while doubting that the exclusionary rule should apply under the circumstances); Judge Ryan finding that even though the search authorization did not explicitly mention Eppes’ bags, the bags were fairly included in the authorization to search Eppes’ person; and Senior Judge Effron finding prejudicial error justifying reversal of the conditional pleas.

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Audio of last week’s outreach oral arguments is available at the following links:

United States v. Jones, No. 17-0608/AR (CAAFlog case page): Oral argument audio.

United States v. Dinger, No. 17-0510/MC (CAAFlog case page): Oral argument audio.

Yesterday, in the wake of the Navy-Marine Corps Appellate Government Division’s unusual Motion to Clarify Position in Response to Questions at Oral Argument in United States v. Barry, No. 17-0162/NA (CAAFlog case page), the Deputy Staff Judge Advocate – Navy Lieutenant Commander Jonathan Dowling – offered an amicus curiae brief in which he argues that neither he nor the Staff Judge Advocate who advised the convening authority committed unlawful command influence.

The brief is available here.

The brief seems to be motivated by the following questions during oral argument at CAAF:

During argument, the Court asked questions about staff judge advocates violating Article 37, UCMJ; two that are especially relevant here. First, “[c]an the Staff Judge Advocate or Deputy Staff Judge Advocate unlawfully influence a convening authority under Article 37?” (Audio Recording, 8:24). And second, what’s to be done “in a situation like this where we have, basically, a collusion between the SJA and the Deputy SJA to keep their boss from doing what he wants to do and then on top of that, a sort of imprimatur added by the TJAG saying the same thing for all the same reasons, it is going to make the Navy look bad, it is going to cause an issue, it is going to cause a problem, even going as far to give incorrect advice? (Audio Recording, 23:38).

Br. at 13-14. Seeming seeking to protect himself from any finding of “a collusion between the SJA and the Deputy SJA to keep their boss from doing what he wants to do,” LCDR Dowling asserts:

what are the limits or how far can the SJA go into a discussion of applicable policies before they violate Article 37, UCMJ? Regardless of the left and right limits, the facts of this case do not support a finding that the SJA or the DSJA violated Article 37, UCMJ here.

Br. at 15. He also argues:

The record does not indicate a tone or argument that could be construed as coercive or an unlawful influence. The record indicates that the SJA and DSJA advice was well within the bounds expected of them and well within the constraints of the law in executing their legal duty to advise the GCMCA. As the timeline above demonstrates, the SJA Office was acting pursuant to RADM Lorge’s expressed intent and direction, albeit an intent that was influenced by his conversations with Commander, Naval Legal Service Command.

Br. at 19.

The brief is filed by civilian counsel representing LCDR Dowling, but nowhere does it – or the accompanying motion to file – state that LCDR Dowling seeks to appear in his personal capacity. Rather, the brief suggests that it speaks for all staff judge advocates in the Navy:

There is no National Association of Staff Judge Advocates, as there is a National District Attorney Association, the National Association of Criminal Defense Lawyers, or similar organization, to represent the broad interests of the staff judge advocate community. Here, Amicus addresses an issue that is important for staff judge advocates Service-wide.

Br. at 2.

Last week, in this post, I discussed a motion filed by the Navy-Marine Corps Appellate Government Division in United States v. Barry, No. 17-0162/NA (CAAFlog case page), titled: Appellee’s Motion to Clarify Position in Response to Questions at Oral Argument.

At the time I hoped it was an April Fools Day joke. Seems not.

Barry’s defense counsel responded. The response is available here.

The response argues, in part:

Nowhere in Rule 40 does it permit for parties to supplement their oral argument with written responses eleven days later. “At some point, litigation must come to an end. That point has now been reached.” . . .

Moreover, for several reasons the government has not demonstrated good cause to grant a motion “clarifying” its position, which should more accurately be captioned as a motion to retract no fewer than five case-dispositive concessions.

Mot. at 2 (citation in footnote omitted).

A reader forwarded what appears to be a motion filed by the Navy-Marine Corps Appellate Government Division in United States v. Barry, No. 17-0162/NA (CAAFlog case page), titled: Appellee’s Motion to Clarify Position in Response to Questions at Oral Argument.

I write appears to be because this could be a late April Fools Day joke. Part of me hopes it is.

Nevertheless, with that caveat, the motion is available here.

It begins:

The United States moves under Rule 30 for leave to file a Motion to Clarify the United States’ position in response to questions at Oral Argument. Good cause exists: little or no precedent governs this situation where the convening authority’s post-action statements demonstrate that notwithstanding receiving legally correct advice in the Addendum Staff Judge Advocate’s Recommendation, and signing an unambiguous and legally correct Convening Authority’s Action, he misunderstood his Article 60 powers and demonstrably considered matters outside the Record, arguably adverse to the accused, but disclosed none of them prior to taking Action.

Mot. at 1.

It’s a thoroughly unusual pleading made worse by the fact that the pronoun the United States is used to refer to the Government as a party to the case (as in: “The United States moves under Rule 30. . .” Mot. at 1), to the attorney who argued the case before CAAF (as in: “The United States responded ‘yes’ and ‘it’s possible.'” Mot at 3), and to the Navy-Marine Corps Appellate Government Division (as in: “The United States does not believe. . .” Mot. at 3 n.3).

CAAF will hear oral argument in the Marine Corps case of United States v. Dinger, No. 17-0510/MC (CAAFlog case page), on Thursday, April 5, 2018, at 10:00 a.m., at Fort Hood, Killeen, Texas. The court granted review to determine whether a court-martial may lawfully sentence a retired member to a punitive discharge, with the following 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?

Gunnery Sergeant (E-7) Dinger, USMC (Ret.), pleaded guilty to two specifications of committing indecent acts, one specification of attempting to produce child pornography, two specifications of wrongfully making an indecent visual recording, and one specification of receiving, viewing, and possessing child pornography, in violation of Articles 80, 120, 120c, and 134, UCMJ. All of the offenses were committed after Dinger entered a retired status following the completion of 20 years of enlisted service in the active component of the Marine Corps. The military judge 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 NMCCA affirmed in a published decision (76 M.J. 552) discussed here. The CCA rejected the issue now before CAAF and also rejected a separate claim that the court-martial lacked personal jurisdiction over Dinger, explaining that retired members of the active components of the armed forces remain subject to the UCMJ because “those in a retired status remain ‘members’ of the land and Naval forces who may face court-martial.” 76 M.J. at at 557.

Military retirement isn’t retirement in the ordinary meaning of the term; it’s just a change in status. Under Article 2(a)(4), the UCMJ applies to regular retirees who are entitled to pay. That category includes servicemembers who complete 20 (or more) years on active duty and accept retirement, and also those who are medically retired after less time. See United States v. Bowie, 34 C.M.R. 411, 412 (C.M.A. 1964).

The exercise of court-martial jurisdiction over retired members was the #1 Military Justice Story of 2017, and Dinger’s status as a Marine on the retired list seems indisputable. But his brief to CAAF begins by disputing it anyway:

As a civilian, Appellant appeared at his court-martial in civilian clothes.

App. Br. at 3. That Dinger was tried out of uniform is somewhat unsettling (and a better historian could probably count on one hand the number of times that’s happened under the UCMJ), but it doesn’t change the fact that he was a Marine gunnery sergeant on the retired list, entitled to pay, subject to recall, and subject to the UCMJ. In short, he was no civilian.

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CAAF will hear oral argument in the Army case of United States v. Jones, No. 17-0608/AR (CAAFlog case page), on Wednesday, April 4, 2018, at noon. The case will be argued at the School of Law, The University of Texas at Austin. CAAF granted review of three issues involving the admission of a confession of a co-conspirator:

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.

The convictions arose out of Jones’ operation of a unit woodshop during a deployment to Kandahar, Afghanistan. The woodshop “met unit needs by completing small carpentry projects, from signage to shelving.” Gov’t Div. Br. at 3-4. It also “created numerous gifts for World War II veterans, gold-star families, foreign dignitaries, and even President Barack Obama.” App. Br. at 3.

But Jones and another Soldier – Master Sergeant (MSG Addington) – used the postal service to mail woodworking tools home, and they were charged with larceny and conspiracy to commit larceny in connection with those mailings. During separate CID interrogations, both Jones and Addington admitted to mailing the tools. During Jones’ court-martial, the prosecution offered Addington’s confession 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, Jones was convicted, and the Army court summarily affirmed.

Jones’ brief makes the rather-obvious point that “Addington’s confession to law enforcement was neither during nor in furtherance of any purported conspiracy.” App. Br. at 8. The point is so obvious that the Army Government Appellate Division concedes the error:

Regarding Issues Presented I and II, the government concedes that MSG Addington’s statement was improperly admitted under Mil. R. Evid. 801(d)(2)(E) because it was not in furtherance of a conspiracy and, therefore, its admission violated appellant’s Confrontation Clause rights because the statement represented testimonial hearsay. However, both errors were harmless beyond a reasonable doubt.

Gov’t Div. Br. at 7. But the Government Division does not concede Issue III (corroboration of Jones’ confession under the old corroboration rule), asserting that:

Even absent MSG Addington’s statement, the government provided sufficient independent evidence to raise an inference of truth for each essential fact stated in appellant’s confession.

Gov’t Div. Br. at 7.

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CAAF decided the Army case of United States v. Robinson, 77 M.J. 294, No. 17-0231/AR (CAAFlog case page) (link to slip op.), on Monday, March 26, 2018. One of two cases by the same name (but with different appellants) decided today, CAAF finds any error harmless and a sexual assault conviction legally sufficient, dodging a contentious debate about the reach of the constitutionally-required exception to Mil. R. Evid. 412 (the military’s rape shield rule). The court unanimously affirms the findings, sentence, and decision of the Army CCA.

Judge Ohlson writes for the court, joined by all but Senior Judge Effron who concurs in part and in the result.

CAAF granted review of two issues and specified a third:

Granted Issues:
I. Whether the miltiary judge erred by failing to admit constitutionally required evidence under Military Rule of Evidence 412(b)(1)(C).

II. Whether the military judge committed plain error when he failed to instruct the panel on the mens rea required for the specification of Charge 1, which involved an Article 92, UCMJ, violation of Army Regulation 600-20.

Specified Issue:
Whether the evidence was legally sufficient to establish that Appellant knew or reasonably should have known that SPC VM was too intoxicated to consent to a sexual act.

In 2013 Specialist (E-4) Robinson – who was a Sergeant (E-5) at the time – attended a party at the residence of another specialist. Many were in attendance, including junior enlisted soldiers. Among those in attendance was Specialist (SPC) VM, who “was the only female at the party.” Slip op. at 3.

Much alcohol was consumed, and “SPC VM abruptly left the party after she became uncomfortable with another guest’s behavior and drove back to her barracks.” Slip op. at 3. Robinson later went to SPC VM’s barracks room, having “told his wife that he was leaving home to go check on a ‘drunk Soldier’ in the barracks.” Slip op. at 7. While SPC VM testified to little memory of the events in her barracks room, Robinson and VM both testified at trial that sexual intercourse occurred. Robinson, however, testified that the intercourse was consensual. But the military judge applied Mil. R. Evid. 412 to prohibit Robinson from testifying “that SPC VM had flirted with [him] for several months before [the party].” Slip op. at 4. The military judge “concluded that the evidence of SPC VM’s flirting on the night of the party was admissible, but not the evidence of flirting in the months leading up to the party.” Slip op. at 4.

A general court-martial composed of members with enlisted representation convicted Robinson of violating a lawful general regulation (fraternization) and sexual assault of a person who was incapable of consenting due to impairment by an intoxicant, in violation of Articles 92 and 120. The members sentenced Robinson to reduction to E-1, total forfeitures, and a bad-conduct discharge (and no confinement). The Army CCA affirmed in a summary disposition.

CAAF’s grant of the issue questioning whether the military judge’s Mil. R. Evid. 412 ruling was error got attention, including from the victims-rights advocacy group, Protect Our Defenders (POD) which filed an amicus brief asserting that an alleged victim’s privacy interests can override an accused’s right to present constitutionally-required evidence.

But today’s opinion doesn’t address that contentious issue, nor does it address the mens rea required for fraternization in violation of Army Regulation 600-20. Rather, finding the sexual assault conviction legally sufficient (an unsurprising result considering the high burden for reversal on this basis), a majority of CAAF concludes that any error in the military judge’s Mil. R. Evid. 412 ruling and the instructions on the fraternization offense was harmless because the evidence of guilt is overwhelming.

Only Senior Judge Effron would go further, but not much further. He finds that the “wide range of behavior from mild teasing to sexual innuendo” excluded under Mil. R. Evid. 412 “was, at best, marginally relevant to the charged offenses and relevant defenses.” Con. op. at 5-6. Accordingly, while Senior Judge Effron does not agree that the excluded evidence “was so inconsequential that the error was harmless beyond a reasonable doubt,” con. op. at 4, he nevertheless concludes that Robinson has not shown error in its exclusion.

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CAAF decided the Air Force case of United States v. Robinson, 77 M.J. 303, No.17-0504/AF (CAAFlog case page) (link to slip op.), on Monday, March 26, 2018. One of two cases by the same name (but with different appellants) decided today, in this case a majority of the court finds no constitutional violation in military investigators requesting a device passcode from a suspect who consented to a search of the device after invoking his right to remain silent and requesting an attorney, affirming the published decision of the Air Force CCA.

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

Last term, in the interlocutory case of United States v. Mitchell, 76 M.J. 413 (C.A.A.F. Aug. 30, 2017) (CAAFlog case page), CAAF held that because continued questioning of a suspect after he invokes his right to counsel violates the Fifth Amendment, the contents of a cell phone must be suppressed when military investigators request the passcode to decrypt the phone after the suspect requests an attorney. The decision was the #4 Military Justice Story of 2017.

Senior Airman (E-4) Robinson was convicted of communicating indecent language to a minor in violation of Article 120b, and sentenced to confinement for one month, reduction to E-1, and a bad-conduct discharge. The evidence admitted against Robinson included text messages extracted from his cell phone. Those messages were obtained after the investigators asked Robinson for the passcode to the phone. That request, however, came after Robinson informed the investigators that he had an attorney and invoked his right to remain silent.

At trial, Robinson’s defense counsel moved to suppress the text messages on the basis that Robinson’s consent to search and his disclosure of the passcode were both involuntary. The military judge denied the motion and the Air Force CCA affirmed in a published decision (76 M.J. 663) (analyzed here). The CCA also rejected a claim that the search of the device exceeded the scope of the consent, finding that the failure to raise the issue at trial waived it. CAAF then granted review of two issues:

I. Whether the military judge abused his discretion by failing to suppress evidence obtained from Appellant’s cell phone.

II. Whether the Air Force Court erred in holding Appellant waived objections regarding investigators’ exceeding the scope of Appellant’s consent.

In today’s opinion Judge Ohlson and the majority reject application of Mitchell by distinguishing the facts of this case from the facts of Mitchell. Judge Ohlson also explains that waiver applies to the scope issue raised for the first time on appeal based on the wording of the applicable Military Rule of Evidence and CAAF’s precedent interpreting that rule.

Chief Judge Stucky, however, dissents from the court’s resolution of the first issue. The Chief Judge – who authored the court’s opinion in Mitchell – finds this case indistinguishable from Mitchell, and he would not reach the second issue.

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