CAAF decided the Air Force case of United States v. Condon, 77 M.J. 244, No.17-0392/AF (CAAFlog case page) (link to slip op.), on March 1, 2018. In a short, fact-specific opinion the court unanimously concludes that it was harmless to show the members a video of the appellant’s interrogation during which he invoked his right to counsel, affirming the decision of the Air Force CCA.

Chief Judge Stucky writes for a unanimous court.

CAAF granted review of one issue and specified a second:

Granted Issue: Upon request by the defense counsel and utilizing a defense proposed instruction, should the military judge have provided the members with an explanation of the term “incapable”?

Specified Issue: Whether the military judge erred in admitting Appellant’s invocation of his right to counsel in his AFOSI interview at trial over defense objection, and, if so, whether that error was harmless beyond a reasonable doubt.

The granted issue is identical to the issue in United States v. Bailey, 77 M.J. 11 (C.A.A.F. Nov. 29, 2017) (CAAFlog case page), in which a unanimous CAAF held that the term incapable in the element of incapable of consenting has such a plain meaning that no instruction is required to define the term for members. It is similarly – and almost summarily – resolved here, with Chief Judge Stucky writing “that the military judge did not abuse his discretion in failing to give the proposed incorrect instruction, or a sua sponte instruction, on a term readily understandable by the members.” Slip op. at 3.

The specified issue, however, addresses the fact that Condon was interrogated by the Air Force Office of Special Investigations (AFOSI), during which he invoked his right to counsel. The investigators then told Condon that they had a warrant to search his home and asked for a key. Condon then decided to resume the interrogation. The entire process was recorded on video.

Over defense objection, the entire video (including the rights invocation) was played for the members, because the military judge “conclud[ed] it would be less confusing for the members if he gave the limiting instruction on the invocation than to redact the invocation and instruct the members on the resulting gap in the recording.” Slip op. at 3.

CAAF doesn’t find this was error. Instead, it concludes that:

we need not determine whether the admission of [Condon’s] invocation was error because we conclude he suffered no prejudice as a result—that is, even if the members were aware of the invocation later, the inclusion of it was unimportant in relation to everything else the panel considered in the case.

Slip op. at 4 (marks and citation omitted).

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

United States v. Condon, No.17-0392/AF (CAAFlog case page): Oral argument audio.

United States v. Wheeler, No.17-0456/AF (CAAFlog case page): Oral argument audio.

CAAF will hear oral argument in the Air Force case of United States v. Condon, No.17-0392/AF (CAAFlog case page), at 9:30 a.m. today. The court granted review of one issue and specified a second:

Granted Issue: Upon request by the defense counsel and utilizing a defense proposed instruction, should the military judge have provided the members with an explanation of the term “incapable”?

Specified Issue: Whether the military judge erred in admitting Appellant’s invocation of his right to counsel in his AFOSI interview at trial over defense objection, and, if so, whether that error was harmless beyond a reasonable doubt.

The granted issue is identical to the issue in United States v. Bailey, 77 M.J. 11 (C.A.A.F. Nov. 29, 2017) (CAAFlog case page), in which a unanimous CAAF held that the term incapable in the element of incapable of consenting has such a plain meaning that no instruction is required to define the term for members.

The specified issue addresses the fact that:

Prior to trial, the defense moved to suppress the statements contained in Pros. Ex. 6 (PE-6), Appellant’s videotaped AFOSI interrogation, and the motion was denied. (JA 75-81, 624-685.) During this interrogation, Appellant invoked his right to remain silent and requested counsel. (JA 524.) Subsequent to his decision to remain silent and to request counsel, he continued speaking to the law enforcement agents present (JA 524.) Based on how the events progressed and the agents’ responses to his questions, Appellant chose to continue the interrogation. (JA 524.)

App. Br. at 4. The video of the interrogation was played to the members in its entirety, including the invocation of rights (over defense objection).

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Last week CAAF granted review in this Air Force case:

No. 17-0392/AF. U.S. v. Robert A. Condon. CCA 38765. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue raised by appellate defense counsel:

UPON REQUEST BY THE DEFENSE COUNSEL AND UTILIZING A DEFENSE PROPOSED INSTRUCTION, SHOULD THE MILITARY JUDGE HAVE PROVIDED THE MEMBERS WITH AN EXPLANATION OF THE TERM “INCAPABLE”?

And the following issue specified by the Court:

WHETHER THE MILITARY JUDGE ERRED IN ADMITTING APPELLANT’S INVOCATION OF HIS RIGHT TO COUNSEL IN HIS AFOSI INTERVIEW AT TRIAL OVER DEFENSE OBJECTION, AND IF SO, WHETHER THAT ERROR WAS HARMLESS BEYOND A REASONABLE DOUBT.

Briefs will be filed under Rule 25.

The CCA’s opinion is available here. The appellant raised a whopping 21 assignments of error, including 15 personally-asserted pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and the CCA’s opinion is a hefty 40 pages long with a six-page partial dissent. The CCA doesn’t mention the issue specified by CAAF, but it does address the granted issue explaining:

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