CAAFlog » October 2018 Term

CAAF decided the Army case of United States v. Coleman, __ M.J. __, No. 19-0087/AR (CAAFlog case page) (link to slip op.), on July 10, 2019. Reviewing for multiplicity in a case involving convictions of attempted murder (with a firearm) and of willfully discharging a firearm under circumstances to endanger human life, CAAF finds that the convictions are not multiplicious because each offense contains an element that the other does not.

Judge Ohlson writes for a unanimous court.

A general court-martial composed of a military judge alone convicted Private First Class (E-3) Coleman of numerous offenses, including one specification of attempted murder in violation of Article 80 (Specification 1 of Charge I), and one specification of willfully discharging a firearm under circumstances to endanger human life in violation of Article 134 (Specification of Charge VII). Both convictions related to Coleman firing a handgun at a car containing another soldier, that soldier’s fiancé, and the fiancé’s three-year old daughter. The Army CCA affirmed those convictions and CAAF granted review of a single issue:

Whether Specification 1 of Charge VII is multiplicious with Specification 1 of Charge I, as they are part of the same transaction.

Furthermore, when it granted review, CAAF specifically ordered that briefs be filed on only the issue of multiplicity and not on the related concept of unreasonable multiplication of charges (noted here).

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CAAF decided the Army case of United States v. Haynes, __ M.J. __, No. 18-0359/AR (CAAFlog case page) (link to slip op.), on July 2, 2019. A divided court reaches the narrow conclusion that the conduct of defense counsel at trial affirmatively waived the issue of credit for prior punishment (known as Pierce credit). Accordingly, CAAF affirms the decision of the Army CCA that denied credit in this case.

Chief Judge Stucky writes for the court, joined by Judges Ryan and Sparks. Judge Ohlson and Judge Maggs each write separate opinions that concur in the result (the denial of credit) but dissent from the finding of waiver.

Private (E-1) Haynes pleaded guilty to numerous offenses pursuant to a pretrial agreement. Two of those offenses were wrongful use of marijuana, and Haynes admitted that he smoked marijuana on an almost-daily basis in an effort to get kicked out of the Army. But in addition to his court-martial conviction for wrongful use of marijuana, Haynes also received nonjudicial (Article 15) punishment for wrongful use of marijuana in the same general time period. That raised the possibility that Haynes was punished twice – the first time by nonjudicial punishment and the second time by the court-martial – for a single offense.

Thirty years ago, in United States v. Pierce, CAAF’s predecessor explained that such double punishment, while not a violation of the Double Jeopardy clause of the Fifth Amendment or the similar protection in Article 44, “would violate the most obvious, fundamental notions of due process of law,” and so “an accused must be given complete credit for any and all nonjudicial punishment suffered: day-for-day, dollar-for-dollar, stripe-for-stripe.” 27 M.J. 367, 369 (C.M.A. 1989) (emphasis omitted). Ten years later, in United States v. Gammons, 51 M.J. 169, 183 (C.A.A.F. 1999), CAAF gave an accused four options regarding that credit: put the prior punishment into evidence at sentencing before members, raise it with the military judge alone, raise it with the convening authority (who, at the time, had unlimited power to reduce the sentence for that or any other reason), or not raise the issue of credit at all.

Haynes neither requested nor received any credit for his prior nonjudicial punishment at trial or when the convening authority acted. Instead, the issue was raised for the first time at the Army CCA. The CCA, however, found waiver, concluding that CAAF’s opinion in Gammons “requir[es] an accused to raise the issue of Pierce credit to either the court-martial or to the [convening authority] to avoid waiver as a matter of law.” United States v. Haynes, 77 M.J. 753, 756 (A. Ct. Crim. App. 2018). The CCA considered granting Haynes credit anyway (as part of its plenary review of the findings and sentence), but it determined that the facts of this case do not warrant relief despite the waiver. CAAF then granted review of two issues:

I. Whether an appellant is authorized to request Pierce credit for the first time at a Court of Criminal Appeals.

II. If the Army Court of Criminal Appeals erred in holding that the failure to request Pierce credit below constituted waiver, was its actual review of this issue under its article 66(c), UCMJ authority still sufficient?

In yesterday’s decision a majority of the court finds that the conduct of Haynes’ defense counsel at trial amounts to an affirmative waiver of the right to any credit for the nonjudicial punishment, with Chief Judge Stucky explaining that the majority does not reach – and so does not endorse – the question decided by the Army CCA (“whether Appellant also waived the issue of Pierce credit by operation of law,” slip op. at 5). Judge Ohlson and Maggs do not agree that the defense counsel’s conduct amounts to waiver, but they nevertheless agree that Haynes is not entitled to credit based on the record in this case.

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CAAF decided the Air Force case of United States v. Voorhees, __ M.J. __, No. 18-0372/AF (CAAFlog case page) (link to slip op.), on June 27, 2019. Reviewing the closing arguments of an experienced Air Force prosecutor, CAAF finds clear or obvious error in the prosecutor’s personal attacks on Voorhees’ defense counsel, personal attacks on Voorhees himself, expressions of personal opinion, bolstering, and vouching, and it concludes that the “trial counsel’s misconduct amounted to grievous error.” Slip op. at 8. Not too grievous, however, because CAAF also finds that, in context, the “arguments were unlikely to prejudice the panel against Appellant.” Slip op. at 10. The court further concludes that the offense of conduct unbecoming an officer and gentleman, in violation of Article 133, is merely a general intent crime. Accordingly, CAAF affirms the five convictions of conduct unbecoming, the sentence, and the decision of the Air Force CCA.

Judge Sparks writes for a unanimous court.

CAAF granted review of three issues:

I. Whether the AFCCA erred in finding no plain error despite trial counsel’s argument on findings that personally attacked appellant and trial defense counsel, commented on Appellant’s silence, expressed his personal opinions, bolstered his own credibility, vouched for government witnesses, speculated, and made reference to facts not in evidence.

II. Whether the AFCCA erred in finding that the specifications alleging violations of Article 133, UCMJ, stated an offense despite the fact that they lack words of criminality or a mens rea.

III. Whether plain error occurred when the military judge failed to instruct the members that mens rea was an element of an offense under Article 133

Major (O-4) Voorhees was convicted by a general court-martial composed of members of one specification of sexual assault and five specifications of conduct unbecoming an officer and gentleman, in violation of Articles 120 and 133. The conduct unbecoming specifications alleged that Voorhees improperly communicated with subordinate females (four specifications) and that he massaged the back of one of them (an enlisted Airman). The sexual assault conviction involved intercourse with one of the women, but that conviction was reversed by the Air Force CCA as factually insufficient in 2016, leaving Voorhees convicted of just the five specifications of conduct unbecoming. The CCA ordered a sentence rehearing on those convictions, and Voorhees was sentenced to a reprimand and to be dismissed.

Having won reversal of his sexual assault conviction at the CCA, Voorhees’ appeal to CAAF focused on his five convictions of conduct unbecoming, and CAAF granted review of two basic questions: Was the prosecutor’s closing argument improper, and does conduct unbecoming require a specific mens rea. CAAF rejects Voohees’ mens rea argument entirely, concluding that just like the military-specific offense of maltreatment considered in United States v. Caldwell, 75 M.J. 276 (C.A.A.F. May 16, 2016), cert denied, 137 S. Ct. 248 (Oct. 3, 2016) (CAAFlog case page), “there is no scenario where an officer who engages in the type of conduct [Voorhees] engaged in can be said to have engaged in innocent conduct.” Slip op. at 16 (marks and citation omitted).

Voorhees’ claim that the prosecutor used improper arguments to win the convictions, however, gets remarkably different treatment. Judge Sparks’ opinion for the unanimous court agrees with Voorhees that the arguments were improper, concluding that they “amounted to grievous error,” slip op. at 8, and Judge Sparks castigates the Air Force Appellate Government Division for defending the arguments (though says nothing about the Air Force CCA, which found no error). The opinion also contains a 513-word note on prosecutorial misconduct, slip op. at 12-13, that bemoans “the consistent flow of improper argument appeals to our Court” and ends with the aspirational principle announced last year that “every attorney in a court-martial has a duty to uphold the integrity of the military justice system.” Slip op. at 13 (quoting United States v. Andrews, 77 M.J. 393, 404 (C.A.A.F. 2018) (CAAFlog case page)). Yet all of that is dicta, because “‘regardless of trial counsel’s improper arguments, there was ample evidence in support of’ Appellant’s convictions.” Slip op. at 11 (quoting Andrews, 77 M.J. at 403).

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CAAF decided the Coast Guard case of United States v. Rodriguez, __ M.J. __, No.18-0350/CG (CAAFlog case page) (link to slip op.), on June 20, 2019. Reviewing a conviction of sexual abuse of a child that was based on the act of kissing the child’s feet, CAAF finds the evidence legally sufficient and affirms the conviction and the decision of the Coast Guard CCA.

Judge Sparks writes for a unanimous court.

CAAF granted review to determine:

Whether United States v. Orben, which established what the government must show to prove intent for indecent liberties under Article 134 (the precursor to Article 120b), applies to the intent element of Article 120b(c), sexual abuse of a child.

There are four major versions of Article 120, UCMJ. The first was in effect from 1951 to 2007 and prohibited rape, which was defined as sexual intercourse by force and without consent. The second was in effect from October 1, 2007, to June 27, 2012, and it fundamentally reformed the prosecution of sex crimes under the UCMJ by codifying 36 separate offenses into the one, far-reaching Article. The third was in effect from June 27, 2012, until December 31, 2018, and it largely restyled the 2007 version by dividing it into Article 120 (for adult sex offenses), 120b (for child sex offenses), and 120c (for other sexual misconduct). Finally, the current version was enacted as part of the Military Justice Act of 2016, it took effect on January 1, 2019, and it largely mirrors the 2012 version.

Rodriguez involves the 2012 version; specifically, Article 120b(c) which defined (and still defines) the offense of sexual abuse of a child as committing a lewd act upon a child. A lewd act is a legal term of art that encompasses a wide variety of activity including any sexual contact. A sexual contact is also a legal term of art that is defined in Article 120 (and incorporated into Article 120b by reference). That definition, however, changed significantly between the 2012 and 2019 versions of Article 120. Under the 2012 version, a sexual contact included any touching of any part of the body if accompanied by a sexual intent:

(2) Sexual contact. The term ‘sexual contact’ means . . .

(B) any touching, or causing another person to touch, either directly or through the clothing, any body part of any person, if done with an intent to arouse or gratify the sexual desire of any person.

Article 120(g)(2) (2012). Congress significantly narrowed the definition in the 2019 version, limiting a sexual contact to:

touching, or causing another person to touch, either directly or through the clothing, the vulva, penis, scrotum, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. Touching may be accomplished by any part of the body or an object.

Article 120(g)(2) (2019). Rodriguez, however, involves the broader, 2012 definition.

Boatswain’s Mate Second Class (E-5) Rodriguez was convicted of sexual abuse of a child and adultery in violation of Articles 120b (2012) and 134, and sentenced to reduction to confinement for 18 months, reduction to E-1, and a bad-conduct discharge. Rodriguez’s sexual abuse conviction was of this specification:

In that [Appellant], on active duty, did, at or near Nederland, Texas, on divers occasions, between December 2014 and April 2015, commit a lewd act upon V.G., a child who had not attained the age of 12 years, to wit: kissing V.G.’s feet with his lips, with an intent to arouse and gratify his own sexual desire.

Slip op .at 1-2 (emphasis added). The child and her mother (Rodriguez’s fiancé) both testified that Rodriguez kissed the child’s feet, though “their testimony indicates [Rodriguez] exhibited no outward signs he was kissing V.G.’s feet with an intent to arouse or gratify his sexual desire.” Slip op. at 3. Rather, Rodriguez’s sexual intent was proven by text messages that Rodriguez exchanged with his paramour (who was married to one of his subordinates). In those messages Rodriguez expressed a sexual fetish involving feet and also referenced V.G.

On appeal, Rodriguez challenged the legal sufficiency of the evidence to prove the existence of sexual intent at the time he kissed the child’s feet, characterizing the kissing as “a fatherly, nonsexual” act and the text messages “as pure sexual fantasy.” Slip op. at 3. CAAF, however, is unconvinced.

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This week at SCOTUS: The Solicitor General applied for and received an extension of time to file a cert. petition in United States v. Collins, No. 18A1257. CAAF summarily affirmed the Air Force CCA’s decision in Collins (noted here) in light of Briggs, and then it granted Collins a writ of habeas corpus (noted here).

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

This week at CAAF: CAAF has completed its oral argument schedule for the current term. The first argument of the 2019 term is scheduled for October 16, 2019.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Thursday, June 27, 2019, at 10 a.m.:

United States v. Bergdahl, No. 20170582

Issues:
I. Whether the President can unlawfully influence—within the meaning of Rule for Courts-Martial 104—a court-martial the President did not personally convene. The parties should be prepared to discuss the references to apparent unlawful influence by the Secretary of the Air Force in United States v. Boyce, 76 M.J. 242 (C.A.A.F. 2017).

II. If appellant has offered at least some evidence of unlawful influence, has the government demonstrated—beyond a reasonable doubt—that both (a) the appearance of unlawful influence did not place an intolerable strain on the public’s perception of the military justice system and (b) an objective, disinterested observer, fully informed of all the facts and circumstances, would not harbor a significant doubt about the fairness of the Convening Authority’s Action? If so, how?

III. If the Convening Authority’s Action was not free from unlawful influence, what—if any—remedy is required?

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on August 8, 2019.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

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

On Wednesday CAAF issued a short, per curiam opinion in the Air Force case of United States v. McGriff, __ M.J. __, No. 19-0206 (CAAFlog case page) (link to slip op.). The opinion is puzzling. CAAF did not grant review in McGriff, and the opinion merely explains that the denial of the review “carries no support whatsoever for concluding that the lower court either correctly or incorrectly interpreted the [law].” Slip op. at 1-2. In other words, CAAF has no opinion about the case.

The Air Force CCA’s decision in the case is available here. McGriff was an Air Force Staff Sergeant (E-5) who pleaded guilty in 2017 to sexual abuse of a child and was sentenced to confinement for 12 years, reduction to E-1, and a dishonorable discharge. McGriff was then confined at the United States Disciplinary Barracks (USDB) at Fort Leavenworth, Kansas. While confined, McGriff participated in numerous sexual acts with a member of the USDB staff, an Army Staff Sergeant (E-6) identified by the CCA as SSG TH. Sexual acts between USDB staff members and prisoners are, of course, strictly prohibited. After the sexual acts, McGriff tested positive for gonorrhea, a disease that SSG TH later admitted to criminal investigators he had in the past. SSG TH was also HIV-positive, a fact he did not disclose to McGriff.

On appeal, McGriff asserted that he was subjected to cruel and unusual punishment in violation of the Eighth Amendment and Article 55 of the UCMJ, or that the sexual acts with the USDB staff member otherwise justify reduction of his sentence as a matter of sentence appropriateness under Article 66 (an option affirmed by CAAF in United States v. Gay, 75 M.J. 264 (C.A.A.F. May 11, 2016) (CAAFlog case page)). A three-judge panel of the Air Force CCA agreed, finding a violation of both the Eighth Amendment and Article 55, and also finding that relief is warranted under Article 66, and it reduced McGriff’s sentence by one year. McGriff then petitioned CAAF for review of a single issue:

Whether the Court of Criminal Appeals improperly conducted a review of the prejudice resulting from Appellant being subjected to cruel and unusual punishment during his post-trial confinement.

The wording of the issue is a little puzzling because the CCA didn’t actually conduct a review of prejudice from the cruel and unusual punishment. The only use of the term prejudice in the CCA’s opinion involves a separate issue (post-trial delay), and the CCA granted relief for the punishment after applying a three-part test articulated by CAAF in United States v. Lovett, 63 M.J. 211, 215 (C.A.A.F. 2006), and based on Farmer v. Brennan, 511 U.S. 825 (1994), that does not require a showing of prejudice. Furthermore, a quick review of the law suggests that the Eighth Amendment violation might be inherently prejudicial. See In re Hernandez-Miranda, No. 16-12893-J, 2016 U.S. App. LEXIS 13205, at *14 (11th Cir. June 28, 2016) (available here) (Martin, J., dissenting). But it’s likely that what McGriff wanted was for CAAF to grant review and either give him more relief (a greater reduction of his sentence) or order the CCA to apply some set of factors that would lead to more relief.

CAAF, however, denies review and issues the per curiam opinion that states, in its entirety:

On consideration of Appellant’s petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, we deny the petition. However, we note that denial of a petition, although it allows the decision below to stand, does not suggest that we either agree or disagree with the merits of a lower court’s resolution of the case. Cf. Teague v. Lane, 489 U.S. 288, 296 (1989) (recognizing that denial of certiorari by the Supreme Court carries no precedential value as it is not an expression of the Supreme Court’s opinion upon the merits of the case).

Thus, denial of this petition carries no support whatsoever for concluding that the lower court either correctly or incorrectly interpreted the scope and application of Farmer v. Brennan, 511 U.S. 825, 832−34 (1994), United States v. Lovett, 63 M.J. 211, 215 (C.A.A.F. 2006), or United States v. Brennan, 58 M.J. 351, 355 (CA.A.F. 2003). Cf. Maryland v. Baltimore Radio Show, 338 U.S. 912, 919 (1950) (emphasizing that denial of certiorari reflects no judgment on the opinion below); United States v. Mahan, 1 M.J. 303, 307 n.9 (C.M.A. 1976) (reiterating that the denial of a petition is of no precedential value).

(paragraphing added) (footnote omitted).

It’s hard to understand why CAAF writes that now, in this case, and this way (and I’ve spent some time enlarging the forehead-shaped dent in my desk trying to figure it out). CAAF has periodically reminded counsel during oral arguments that a denial of review is not an endorsement of the opinion below. One recent and notable example was in the oral argument of United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page) (the #3 Military Justice Story of 2016), and the court’s subsequent decision in Hills (an Army case) was a reversal of the Army CCA’s decision in United States v. Barnes, 74 M.J. 692 (A. Ct. Crim. App. May 8, 2015) (discussed here), pet. denied, 75 M.J. 27 (C.A.A.F. July 28, 2015). Similarly, CAAF’s recent decision in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page) (the #3 Military Justice Story of 2018), shows that court will reverse even oft-applied, decades-old precedent when the circumstances are right.

But McGriff doesn’t present any obvious challenge to any precedent, and even if the CCA’s finding of cruel and unusual punishment is wrong, Gay makes it clear that the court has plenary authority to reduce the sentence under Article 66 anyway. Accordingly, all CAAF’s denial of review really does is deprive the Supreme Court of jurisdiction to consider a petition for certiorari. See 28 U.S.C. § 1259.

CAAF decided the Army case of United States v. Gonzales, __ M.J. __, No. 18-0347/AR (CAAFlog case page) (link to slip op.), on Friday, June 7, 2019. Analyzing the version of Article 120 effective from 2007-2012, the court holds that the offense of aggravated sexual contact with a child is not a lesser included offense of rape of a child. Nevertheless, reviewing the appellant’s conviction of the lesser offense for plain error (because there was no objection at trial), CAAF finds that the error is not plain or obvious because the law was unsettled, and the court affirms the conviction.

Judge Maggs writes for a unanimous court.

Specialist (E-4) Gonzales was convicted by a general court-martial composed of a military judge alone of aggravated sexual contact with a child, aggravated sexual abuse of a child, indecent liberty with a child, and child endangerment, and sentenced to confinement for 22 years, reduction to E-1, total forfeitures, and a dishonorable discharge. CAAF’s review involves only the conviction of aggravated sexual contact with a child. Gonzales was actually charged with the offense of rape of a child, with a specification that alleged that he:

engage[d] in a sexual act, to wit: penetrating, with his penis, the vulva of Miss AP, a child who had not attained the age of 12 years.

Slip op. at 9 (marks omitted). The evidence at trial, however, did not prove the element of penetration, and the military judge acquitted Gonzales of rape but convicted him of aggravated sexual contact, ostensibly as a lesser included offense. The two offenses are different, in that rape of a child (in violation of Article 120(b) (2006)) requires a sexual act (potentially without any specific intent), while aggravated sexual contact requires only sexual contact but with specific intent. The defense did not object when the military judge announced the findings, and CAAF eventually granted review to determine:

Whether aggravated sexual contact of a child is a lesser included offense of rape of a child.

Applying both versions of the elements test outlined in United States v. Armstrong, 77 M.J. 465 (C.A.A.F. 2018) (CAAFlog case page), Judge Maggs explains that the statutory elements of aggravated sexual contact with a child are not necessarily included in the statutory elements of rape of a child, and that the charge sheet did not provide notice of the different elements of the sexual contact offense. Accordingly, the military judge erred in convicting Gonzales of aggravated sexual contact with a child. The error, however, was not plain or obvious because “it was subject to reasonable doubt both at the time of trial and on appeal,” slip op. at 10, and so – because Gonzales failed to object at trial – he gets no relief.

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CAAF decided the Army case of United States v. Gleason, __ M.J. __, No. 18-0305/AR (CAAFlog case page) (link to slip op.), on June 6, 2019. The court rejects a novel specification under Article 134, concluding that it is barred by the prohibition in the Manual for Courts-Martial against charging a novel specification when the offensive conduct is already covered by an offense enumerated in the Manual. CAAF reverses the decision of the Army CCA, dismisses the specification at issue, sets aside the sentence, and remands for further proceedings.

Judge Sparks writes for the court, joined by Chief Judge Stucky and Judge Ohlson. Judge Ryan and Judge Maggs both dissent, each filing an opinion.

CAAF granted review of a single issue:

Whether the Army Court erred by affirming a novel specification covered by an enumerated Art. 134, UCMJ offense.

Article 134 criminalized three categories of conduct: “[1] all disorders and neglects to the prejudice of good order and discipline in the armed forces, [2] all conduct of a nature to bring discredit upon the armed forces, and [3] crimes and offenses not capital.” 10 U.S.C. § 934. The President – exercising his rulemaking authority under Article 36 – enumerated in the Manual for Courts-Martial a wide variety of offenses that may be charged as violations of Article 134 (like obstruction of justice, child pornography offenses, and extramarital sexual conduct (formerly adultery)). Outside of those enumerated offenses, however, servicemembers may also be charged with other, novel, violations of Article 134, so long as the conduct falls into one of the three statutory categories. But the President also prescribed three specific conditions for how such novel specifications may be used:

  • The first is the preemption doctrine, which states that Article 134 cannot be used to prosecute conduct covered by Articles 80-132. See ¶ 91.c.(5)(a), Part IV, Manual for Courts-Martial (2019 ed.). See also United States v. Wheeler, 77 M.J. 289 (C.A.A.F. Mar. 22, 2018) (CAAFlog case page).
  • The second is that “a capital offense may not be tried under Article 134.” ¶ 91.c.(5)(b), Part IV, Manual for Courts-Martial (2019 ed.).
  • The third – and the one at issue in this case – is the provision that “if conduct by an accused does not fall under any of the enumerated Article 134 offenses (paragraphs 92 through 109 of this Part), a specification not listed in this Manual may be used to allege the offense.” ¶ 91.c.(6)(a), Part IV, Manual for Courts-Martial (2019 ed.) (formerly ¶ 60.c.(6)(a)).

Two years ago, United States v. Reese, 76 M.J. 297 (C.A.A.F. Jun. 14, 2017) (CAAFlog case page), CAAF interpreted that third condition as flatly prohibiting use of a novel specification to allege an offense under Article 134 where the offense is already listed inside the Article’s framework. Reese involved a specification that functionally alleged the offense of obstruction of justice – as enumerated by the President under Article 134 – without requiring the prosecution to prove two of the four elements of obstruction. Reese was quickly applied in United States v. Guardado, 77 M.J. 90 (C.A.A.F. Dec. 12, 2017) (CAAFlog case page), to reverse two novel specifications that were encompassed by the enumerated offense of indecent language.

Now, in Gleason, CAAF applies Reese to a specification that alleged that:

[Appellant] knowingly and wrongfully interfere[d] with Private First Class J.W.’s ability to place an emergency phone call by taking her telephone from her when she went to call the police and that such conduct was to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces.

Slip op. at 4 (modifications in original). The majority finds that the conduct at issue “falls squarely within the President’s explanation of the obstruction of justice offense.” Slip op. at 5. The dissenters, however, would hold that “the novel specification here is not contained within the elements of the listed Article 134, UCMJ, [offense] of obstruction of justice.” Diss. op. of Ryan, J., at 3 (citing Diss. op. of Maggs, J. at 1-4).

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CAAF decided the Army case of United States v. Tovarchavez, __ M.J. __, No. 18-0371/AR (CAAFlog case page) (link to slip op.), on Friday, May 31, 2019. A divided court concludes that any time an error is constitutional in nature – even if it was forfeited by the failure to object at trial and is reviewed on appeal under the plain error standard – reversal is required unless the error is harmless beyond a reasonable doubt. Non-constitutional errors, in contrast, need only be merely harmless to avoid reversal. Accordingly, CAAF reverses the decision of the Army CCA that affirmed the conviction by applying the mere harmlessness standard, and it also reverses the findings and sentence due to a Hills error.

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

CAAF granted review of a single issue:

Whether the Army Court erred, first, in finding that this Court overruled sub silencio the Supreme Court holding in Chapman v. California, 386 U.S. 18, 24 (1967), and this Court’s own holdings in United States v. Wolford, 62 M.J. 418, 420 (C.A.A.F. 2006), and in United States v. Hills, 75 M.J. 350, 357 (C.A.A.F. 2016), and, consequently, in testing for prejudice in this case using the standard for nonconstitutional error.

In 2015, Specialist (E-4) Tovarchavez was tried by general court-martial for sexually assaulting another soldier on two occasions. The military judge instructed the members that they could use the charged offenses as evidence of Tovarchavez’s propensity to commit the charged offenses (the Hills error), and the defense did not object to the instruction. Tovarchavez was then convicted of one of the two charged offenses and sentenced to confinement for two years, reduction to E-1, total forfeitures, and a dishonorable discharge.

An error is when something is done wrong at trial. As a general rule, errors can be preserved, forfeited, and waived. An error is preserved by a timely objection, it is forfeited by the failure to object, and it is waived when the accused knowingly and intentionally relinquishes the underlying right (or when a rule makes the failure to assert the right a waiver). At the two extremes, an accused is entitled to relief from a preserved error, and a waiver means that there is no error. Forfeited errors are in the middle, and they are reviewed using the plain error test. The plain error test penalizes the accused (who failed to object at trial) by requiring on appeal that he show that there (1) was an error, (2) that is plain or obvious, and (3) that caused material prejudice to a substantial right.

Identifying prejudice, however, is a key component of appellate review. Early American courts – applying English common law rules – would reverse a conviction (and authorize another trial) for any error. Congress eventually enacted rules that permitted reversal only where the error affected substantial rights, creating the harmless error doctrine. Under the harmless error doctrine, a conviction may be affirmed despite almost any kind of error at trial if the error is found to be harmless. See Fed. R. Crim. Proc. 52. See also Stephen A. Saltzburg, The Harm of Harmless Error, 59 Va. L. Rev. 988, 1006 n.57 (1973) (discussing 28 U.S.C. § 2111 as identical to language first enacted in 1911).

Congress explicitly incorporated the harmless error doctrine into military law in Article 59(a), which states:

A finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.

The harmlessness of an error (or the existence of prejudice) is a separate consideration from whether an error was preserved, forfeited, or waived, and it involves separate tests. An ordinary error is harmless “if the factfinder was not influenced by it, or if the error had only a slight effect on the resolution of the issues of the case.” United States v. Muirhead, 51 M.J. 94, 97 (C.A.A.F. 1999). But if the error affects a constitutional right, then a heightened standard applies: the error must be harmless beyond a reasonable doubt and an “error is not harmless beyond a reasonable doubt when there is a reasonable possibility that the error complained of might have contributed to the conviction.” United States v. Hills, 75 M.J. 350, 357 (C.A.A.F. 2016) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)) (additional citation omitted).

Chapman was a hugely important case in the area of harmless error because it held that even constitutional errors (in that case it was commenting on the accused’s failure to testify) can be harmless, but only if the error meets the higher standard of harmlessness beyond a reasonable doubt. The facts and procedural posture of Chapman are very similar to those of Tovarchavez: Both cases involve constitutional error with no objection at trial and a post-trial change in the law that clarified that the error was actually an error, and in both cases the lower court applied mere harmlessness to affirm the conviction.

Specifically, when it reviewed the improper use of charged offenses for propensity purposes (the Hills error) in Tovarchavez, the Army CCA applied the mere harmlessness standard (used for nonconstitutional errors) rather than the harmless-beyond-a-reasonable-doubt standard (used for constitutional errors like a Hills error). Writing for a two-judge majority of a three-judge panel of the CCA, Judge Wolfe held that:

the appropriate prejudice analysis for unpreserved error–even error of a constitutional magnitude–is whether the error [merely] materially prejudiced the substantial rights of appellant.

United States v. Tovarchavez, No. ARMY 20150250, slip op. at 10 (A. Ct. Crim. App. July 19, 2018) (link to slip op.). Then the majority found the error harmless (though not harmless beyond a reasonable doubt):

Given the strength of the evidence . . . we fail to find a material prejudice to any of appellant’s substantial rights. . . .

But to the extent we are wrong, we have also considered whether the evidence is strong enough to convince us that the error was harmless beyond a reasonable doubt. . . . We are not convinced.

Tovarchavez, slip op. at 14. Senior Judge Campanella dissented, castigating “the majority [for] creat[ing] a dispute where there is none between the parties,” slip op. at 18, while “agree[ing] with the majority’s assessment that the instructional error here was not harmless beyond a reasonable doubt,” slip op. at 19. CAAF then granted review.

In Friday’s opinon a majority of CAAF concludes that regardless of whether an error is preserved or forfeited, if the error is constitutional in nature then reversal is required unless the error is harmless beyond a reasonable doubt.

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CAAF decided the Army case of United States v. Lewis, __ M.J. __, No.19-0109/AR (CAAFlog case page) (link to slip op.), on Thursday, May 30, 2019. In this interlocutory appeal of a military judge’s ruling that suppressed three statements made by the accused, CAAF affirms the decision of the Army CCA that reversed the military judge’s ruling as to the third (and most damaging) statement, allowing its admission into evidence at the accused’s court-martial.

Chief Judge Stucky writes for all but Judge Ryan, who concurs with the majority’s opinion in full but writes separately in order to express skepticism about CAAF’s jurisdiction to grant an accused’s petition for review of a prosecution interlocutory appeal.

CAAF granted review of one issue:

Whether the military judge abused his discretion when he suppressed SPC Lewis’s third statement as involuntary under Military Rule of Evidence 304.

Specialist (E-4) Lewis is charged with the sexual assault of a child and faces trial by general court-martial. Prior to being charged, Lewis was interrogated by Army criminal investigators on three occasions. On the first occasion the lead investigator – identified in the opinion as Investigator Lizivette Delgado, even though she “has since changed her last name,” slip op. at 3 n.3 – deliberately did not give Lewis the mandatory rights advisory because she “feared that [Lewis] might invoke his Article 31(b) rights if she brought them to his attention.” Slip op. at 3-4 (citation omitted). Lewis made some admissions during that first interrogation. One month later he was interrogated again but by a different agent who promptly gave a rights warning. Lewis waived his rights and made more admissions. Finally, one month after the second interrogation Lewis was interrogated by a third agent, warned about his rights, waived his rights, agreed to take a polygraph examination, and:

became “overwhelmingly sad and then admitted to penetrating Miss ZC’s vagina with his finger after she had told him no.” He stated he had done this in an attempt to convince Miss ZC to have sex with him.

Slip op. at 5 (quoting United States v. Lewis, 78 M.J. 602, 608 (A. Ct. Crim. App. 2018)).

Lewis moved to suppress the fruits of all three interrogations at trial and the military judge agreed, concluding that the prosecution failed to prove that any of Lewis’ statements were voluntary. The prosecution appealed that ruling under Article 62 for the second and third interrogations, and the Army CCA agreed in part. The CCA affirmed the suppression of the second interrogation but reversed the suppression of the third interrogation, concluding that the military judge made an erroneous finding of fact and applied the wrong law. Lewis then petitioned CAAF for review of that decision.

Chief Judge Stucky’s opinion conducts a necessarily fact-specific analysis of the issue to reach the same conclusions as the Army court: The military judge made a clearly-erroneous finding of fact (regarding whether Lewis suffered from adjustment disorder at the time of the third interrogation based on a diagnosis of that condition six months after the interrogation), slip op. at 10-11, and the military judge “erred by failing to distinguish between the three interrogations,” slip op. at 13. Accordingly, CAAF holds that the suppression of the fruits of the third interrogation was an abuse of discretion.

Judge Ryan’s separate opinion poses no challenge to Chief Judge Stucky’s decision in this particular case, however it lobs a firebomb into CAAF’s jurisprudence involving interlocutory appeals. She writes:

I write separately only to express my skepticism that an accused may permissibly appeal an adverse ruling of a Court of Criminal Appeals (CCA) where the case came before the CCA as an interlocutory appeal by the government under Article 62, UCMJ, 10 U.S.C. § 862. I fully recognize that this Court has long considered petitions in this posture without question, even rarely granting and deciding cases in favor of the accused. See, e.g., United States v. Mangahas, 77 M.J. 220 (C.A.A.F. 2018). Nevertheless, this practice runs contrary to the well-established principles guiding criminal appeals.

. . . We should therefore be hesitant to extend the purview of interlocutory appeals under Article 62, UCMJ, absent compelling justification.

Con. op. at 1. What follows is a truncated analysis of Article 62 (that authorizes interlocutory appeals by the prosecution only “under the strict requirements specified by Congress,” con. op. at 4) and the observation that “there is no reason Article 62, UCMJ, must or should be read to give an accused the opportunity to appeal.” Con. op. at 2.

Judge Ryan’s belief that Article 62 should be read narrowly is nothing new; she authored a dissenting opinion in United States v. Lopez de Victoria, 66 M.J. 67 (C.A.A.F. 2008), that concluded that CAAF lacked jurisdiction to review any interlocutory appeal. Her decision to question the court’s jurisdiction in this case, however, where the Gov’t Division’s brief conceded that the court has jurisdiction (and the Division was not asked about that concession during oral argument), is hard to understand in light of recent events. Specifically, just 15 months ago, in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), CAAF not only granted review of an accused’s petition in an interlocutory case, but it decided the case in favor of the accused on an issue other than the one specified in the original grant and presented at oral argument. CAAF’s decision in Mangahas was a surprising reversal of decades of precedent, had an immediate effect on a number of relatively high-profile cases, and was the #3 Military Justice Story of 2018.

The author of that unanimous opinion? Judge Ryan.

Furthermore, Judge Ryan belittles CAAF’s decision to grant review:

This case is a perfect example of needless delay and interruption. There is no colorable claim that Appellant was entitled to relief, as the CCA clearly explained. We nonetheless interrupted the trial—at which Appellant may still yet be acquitted—for an additional period of time only to conclude that the CCA was precisely correct.

Con. op. at 4-5 (emphasis added). CAAF has discretionary jurisdiction and it rejects the vast majority of petitions for review. The court rejects so many petitions that it didn’t fill its oral argument calendar this term. Or last term. Or the term before that. Yet it granted review in this case. Judge Ryan’s castigation of this appeal as “a perfect example of needless delay and interruption,” and as presenting “no colorable claim” suggests that the court was either bamboozled into granting review, or that it granted review in this case – and maybe denied review in other cases – for the wrong reasons.

Case Links:
ACCA opinion (78 M.J. 602)
Appellant’s brief
Appelllee’s (Gov’t Div.) brief
Appellant’s reply brief
• Oral argument audio (wma)(mp3)
CAAF opinion
Blog post: Opinion analysis

CAAF decided the Marine Corps case of United States v. Hutchins, __ M.J. __, No. 18-0234/MC (CAAFlog case page) (link to slip op.), on Wednesday, May 29, 2019. In its third review of this long-running prosecution, CAAF finds that no issue of ultimate fact was determined by Hutchins’ acquittal of certain offenses in his first trial and also that the prosecution could prove all the elements of the offenses at his second trial without invoking the elements of the acquitted offenses. Accordingly, the doctrine of issue preclusion – as embodied by the Double Jeopardy Clause of the Fifth Amendment and codified in Rule for Courts-Martial 905(g) – does not apply, and CAAF affirms the decision of the NMCCA that affirmed the findings and sentence.

Judge Ohlson writes for a unanimous court.

Sergeant (E-5) Hutchins was tried twice by general court-martial for his participation in a 2006 kidnap-murder conspiracy in Iraq that is colloquially known as the Hamdania incident. His first court-martial was in 2007 and resulted in convictions of conspiracy, false official statement, unpremeditated murder, and larceny, but acquittals of other related offenses. Hutchins was sentenced to reduction to E-1, a reprimand, confinement for 15 years, and a dishonorable discharge, however the convening authority disapproved the reprimand and all confinement in excess of 11 years.

A roller-coaster of appellate litigation followed. The Navy-Marine Corps CCA initially reversed Hutchins’ convictions in 2010 (decision analyzed here), but CAAF reversed the CCA’s decision in 2011 (noted here). On remand in 2012, the NMCCA affirmed the findings and the sentence (noted here). But CAAF reversed that decision too, and then it set aside Hutchins’ convictions and authorized a rehearing in United States v. Hutchins, 72 M.J. 294 (C.A.A.F. 2013) (CAAFlog case page).

The rehearing occurred in 2015, and Hutchins was again convicted of conspiracy, murder, and larceny. Those convictions, however, implicated conduct that that was also implicated by the offenses that Hutchins’ was acquitted of at the first trial. Specifically, the prosecution was allowed to introduce evidence implicating the acquitted offenses in order to prove that Hutchins had a plan to commit the charged offenses (that he had been convicted of committing at the first trial). Hutchins claimed that violated the constitutional prohibition against double jeopardy on the basis of collateral estoppel or issue preclusion (different names for the same thing), and CAAF granted review to determine:

Whether the military judge erred when he denied the defense motion to suppress evidence of conduct for which Appellant had been acquitted at his first trial.

Judge Ohlson’s opinion for the unanimous CAAF holds that issue preclusion does not apply to the facts of Hutchins’ case and so the military judge could properly apply Mil. R. Evid. 403 and 404(b) to the prosecution’s evidence that implicated the acquitted offenses. Furthermore, because Hutchins “does not meaningfully contest the military judge’s application of those rules on their own terms,” CAAF does not review the military judge’s underlying ruling admitting the evidence.

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

United States v. Coleman, No. 19-0087/AR (CAAFlog case page): Oral argument audio (wma) (mp3)

United States v. Hyppolite, II., Nos.19-0119/AF & 19-0197/AF (CAAFlog case page): Oral argument audio (wma) (mp3)

The audio is also available on our oral argument audio podcast.

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

United States v. English, No. 19-0050/AR (CAAFlog case page): Oral argument audio (wma) (mp3)

United States v. Navarette, No. 19-0066/AR (CAAFlog case page): Oral argument audio (wma) (mp3)

The audio is also available on our oral argument audio podcast.

CAAF decided the Army case of United States v. Harris, __ M.J. __, No.18-0364/AR (CAAFlog case page) (link to slip op.), on May 16, 2019. The court finds that the military judge rightly denied 291 days of credit for civilian pretrial confinement, affirming the published decision of the Army CCA.

Judge Ryan writes for a unanimous court.

In 2013, Staff Sergeant (E-6) Harris was arrested by Florida authorities and charged with 44 counts of possessing child pornography. He was released on bond pending trial. He absconded, fleeing to Cambodia.

Eventually, Harris surrendered and was confined by Florida authorities (not at the request of military authorities), and Florida added a felony charge of failure to appear. Ultimately, however, the state prosecutor elected not to pursue a child pornography conviction because the state was unable to secure a key witness. Instead, Harris pleaded no contest to the failure to appear and was sentenced to confinement for 364 days. But by that point, Harris had spent 655 days in pretrial confinement; 291 days more than his state sentence.

After the state completed the prosecution, the Army took its turn. Harris was charged with possession of child pornography and desertion, eventually pleading guilty to both and receiving a sentence of confinement for five years, reduction to E-1, and a bad-conduct discharge. The military judge ordered that Harris receive 191 days of confinement credit for time spent in military pretrial confinement, but he denied Harris’ request for an additional 291 days of credit for the time spent in civilian pretrial confinement in excess of the state sentence. The military judge did so after concluding that those days of confinement were for the charge of failure to appear that occurred after Harris’ desertion and possession of child pornography, meaning that they were ineligible for credit under the applicable DoD regulation. On appeal, the Army CCA agreed with the military judge. CAAF then granted review of one issue:

Whether the Army court erroneously affirmed the military judge’s denial of 291 days of Allen credit for pretrial confinement Appellant served in a civilian confinement facility awaiting disposition of state offenses for which he was later court-martialed.

Judge Ryan’s opinion for the unanimous CAAF is short and to the point, concluding:

The record provides adequate support for [the military judge’s] determination. First, Appellant was only placed in pretrial confinement after he fled to Cambodia while out on bond and was charged with failure to appear after his return to the United States. Second, Appellant was not confined for the child pornography charges prior to his flight to Cambodia. It seems perfectly accurate to say that Appellant was placed in confinement because he fled the country and failed to appear at his hearing and not because he possessed child pornography. The record thus supports the military judge’s finding that Appellant’s confinement in Florida was “for” his failure to appear. Having determined that the military judge’s factual finding was not clearly erroneous, we find no error in his application of the law to that factual finding. The denial of the 291 days of civilian pretrial confinement credit aligns squarely with the plain language of DoDI 1325.07 encl. 2, para. 3.c.

Slip op. at 6 (citation omitted).

Case Links:
ACCA opinion (78 M.J. 521)
Blog post: CAAF grants review
Appellant’s brief
Appelllee’s (Gov’t Div.) brief
Appellant’s reply brief
• Oral argument audio (wma)(mp3)
CAAF opinion
Blog post: Opinion analysis

This week at SCOTUS: A new cert. petition (available here) was filed in Cooper v. United States, No. 18-423, on May 13, 2019. In United States v. Cooper, 78 M.J. 283 (C.A.A.F. Feb. 12, 2019) (CAAFlog case page), a nearly-unanimous court found finds that the failure to request individual military defense counsel after a military judge discusses the right to make such a request with the accused is a knowing and intentional waiver of the right. The question presented in the petition is:

Whether the United States Court of Appeals for the Armed Forces exceeded its statutory authority under 10 U.S.C. § 867(c) when it took action with respect to a matter of fact.

The petition asserts:

The CAAF reversed the lower court because it found Cooper knowingly and intelligently waived his right to IMC. (Pet. App. 4a, 16a.) But what a defendant knew or understood at any given moment in time is a historical fact: making a state of mind determination calls for a “recital of external events and the credibility of their narrators.” Thompson v. Keohane, 516 U.S.99, 110 (1995) (internal quotations omitted).

The CAAF took action on a matter of fact—an authority specifically withheld from CAAF and provided to the NMCCA. Compare 10 U.S.C. § 866(c) with 10 U.S.C. §867(c). In exercising its authority under 10 U.S.C. § 866(c), the NMCCA found, as fact, that Cooper did not make a knowing and intelligent waiver of his right to IMC. Without so much as a declaration that this finding was clear error, the CAAF disagreed.

Pet at 12.

Additionally, the Solicitor General requested and has received an extension of time – until June 22, 2019 – to seek certiorari of CAAF’s decision in United States v. Briggs, 78 M.J. 289 (C.A.A.F. Feb. 22, 2019) (CAAFlog case page).

Finally, the cert. petition in Hale was distributed for conference on May 30, 2019.

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

This week at CAAF: CAAF will hear oral argument infour cases this week:

Tuesday, May 21, 2019, at 9:30 a.m.:

United States v. English, No. 19-0050/AR (CAAFlog case page)

Issue: Whether the Army Court of Criminal Appeals can find the unlawful force, as alleged, factually insufficient and still affirm the finding based on a theory of criminality not presented at trial.

Case Links:
ACCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Appellant’s reply brief

Followed by:

United States v. Navarette, No. 19-0066/AR (CAAFlog case page)

Issues:
I. Whether the Army Court erroneously denied appellant a post-trial R.C.M. 706 inquiry by requiring a greater showing than a non-frivolous, good faith basis articulated by United States v. Nix, 15 C.M.A. 578, 582, 36 C.M.R 76, 80 (1965).
II. Whether the Army Court erred when it held that submitting matters pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), was evidence of Appellant’s competence during appellate proceedings.

Case Links:
ACCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Appellant’s reply brief

Wednesday, May 22, 2019, at 9:30 a.m.:

United States v. Coleman, No. 19-0087/AR (CAAFlog case page)

Issue: Whether Specification 1 of Charge VII is multiplicious with Specification 1 of Charge I, as they are part of the same transaction.

Case Links:
ACCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Appellant’s reply brief

Followed by:

United States v. Hyppolite, II., Nos.19-0119/AF & 19-0197/AF (CAAFlog case page)

Granted issue: Whether the military judge’s erroneous admission of evidence regarding Specifications 1, 2, and 3 as a common plan or scheme for Specifications 4 and 5 was harmless.

Certified issue: Did the Air Force Court of Criminal Appeals err when it found the military judge abused his discretion by ruling that the evidence regarding Specifications 1, 2, and 3 could be considered as evidence of a common plan or scheme for Specifications 4 and 5.

Case Links:
AFCCA opinion
Blog post: CAAF grants review
Blog post: JAG cross-certifies
Granted Issue: Appellant’s brief
Granted Issue: Appellee’s (Gov’t Div.) brief (granted issue
Certified Issue: Cross-Appellant’s (Gov’t Div.) brief
Certified Issue: Cross-Appellee’s brief
Certified Issue: Cross-Appellant’s (Gov’t Div.) reply brief

This week at the ACCA: The Army CCA’s website shows no scheduled oral arguments.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

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