CAAFlog » September 2011 Term

Multiple news agencies report that President Trump issued a pardon to former Army Lieutenant Michael Behenna. Fox News quotes White House Press Secretary Sarah Sanders:

White House Press Secretary Sarah Sanders cited “broad support” for Michael Behenna, of Edmond, Okla., “from the military, Oklahoma elected officials, and the public” — including 37 generals and admirals, along with a former Pentagon inspector general — as the reason for Trump’s clemency grant. Sanders also said Behenna had been a “model prisoner” while serving his sentence.

“In light of these facts, Mr. Behenna is entirely deserving of this Grant of Executive Clemency,” Sanders concluded.

In April 2008, Behenna was a Platoon Leader deployed to Bayji, Iraq (north of Baghdad). That month he shot and killed a detainee named Ali Mansur. The shooting occurred during an unauthorized interrogation in a desert culvert, during which Behenna stripped Mansur naked and threatened him with a pistol. Behenna was charged with murder, and at court-martial in March 2009 he claimed self-defense, asserting that Mansur had thrown a piece of concrete at him and tried to grab his pistol just before the shooting. Nevertheless, members convicted Behenna of unpremeditated murder and assault consummated by a battery, and sentenced him to a dismissal, total forfeitures, and confinement for 25 years., The convening authority later reduced the confinement 20 years, and the clemency and parole board reduced it to 15 years.

CAAF affirmed the convictions in United States v. Behenna, 71 M.J. 228 (C.A.A.F. 2012) (CAAFlog case page), holding that Behenna lost and did not regain the right to self-defense as a matter of law during the encounter, and that the prosecution’s late disclosure of a potentially-exculpatory opinion held by a prosecution expert was harmless. The Supreme Court denied certiorari in 2013. Behenna was subsequently granted parole and released from confinement in 2014, and became a ranch hand.

Behenna’s pardon isn’t President Trump’s first pardon for a former servicemember. The President gave Kristian Saucier a pardon for his conviction of violating 18 U.S.C. § 793(e) for illegally retaining photographs of classified areas of a nuclear submarine.

President Obama also granted clemency, including the commuting the death sentence of Private Loving and commuting the 35-year sentence of Private Manning. Loving murdered two taxicab drivers in Killeen, Texas (near Fort Hood), and attempted to murder a third, on December 12, 1988. Manning stole hundreds of thousands of classified documents and gave them to Wikileaks. Loving’s sentence was commuted to life without the possibility of parole and Manning’s was commuted to confinement until May 17, 2017 (effectively a 7-year term). Both actions were taken on January 17, 2017; three days before the end of Obama’s second term. Loving remains in post-trial confinement, while Manning is newly confined – and has been for the past two months – for contempt of court.

Commutations & Clemency was the #9 Military Justice Story of 2017, and we discussed Presidential pardons for convicted wartime murders last year, in this Scholarship Saturday post.

According to this report, Army LT Behenna was granted parole by the Army Clemency and Parole Board effective March 14.

Behenna, who shot and killed a detainee named Ali Mansur in Iraq in April 2008, was convicted at a general court-martial in March 2009, contrary to his pleas of not guilty, of unpremeditated murder and assault consummated by a battery, and was sentenced to a dismissal, total forfeitures, and confinement for 25 years (reduced by the convening authority to 20 years, and then by the clemency and parole board to 15 years). Appeals followed, and the findings and sentence were ultimately affirmed by CAAF in United States v. Behenna, 71 M.J. 228 (C.A.A.F. 2012) (link to slip op.) (CAAFlog case page). A subsequent petition for certiorari was featured on SCOTUSblog, but the Court denied review in June 2013.

Thanks to reader “D” for the tip.

Last year, CAAF reversed the adultery conviction in United States v. Humphries, No. 10-5004/AF, due to the Government’s failure to charge a terminal element, even though the Appellant did not object to the missing element at trial. We’ve revisited that opinion many times in the past year. But the defective 134 specification was just one of two interesting issues in that case, where SrA (E-4) Humphries was convicted of adultery and consensual sodomy, in violation of Articles 125 and 134, and sentenced to reduction to E-1 and a bad-conduct discharge. The other issue was whether the AFCCA (which does not have the power to suspend a sentence) had the power to find that an unsuspended punitive discharge was an inappropriately severe punishment and return the case to the convening authority to either suspend or disapprove the bad-conduct discharge. The court wrote:

We find no prejudicial error; however, we decline to affirm the findings at this time. For the reasons set forth below, we find that portion of the sentence which provides for an unsuspended bad-conduct discharge inappropriately severe. Accordingly, we set aside the convening authority’s action and return the record of trial to The Judge Advocate General for remand to the convening authority for reconsideration of the sentence.

Put differently, the CCA told the convening authority that he could have a suspended BCD or no BCD, while retaining the possibility that it might disapprove the findings outright. The AFCCA issued that opinion in 2010. The Government sought en banc reconsideration, which was denied. The Air Force JAG then certified the case to CAAF, with the following issue questioning the scope of the CCA’s authority:

Whether the Air Force Court of Criminal Appeals erred in finding appellee’s sentence inappropriately severe under the unique circumstances of this case and erred in an attempt at exercising appellate clemency by remanding the case to the convening authority with instructions that the convening authority may approve an adjudged sentence no greater than a suspended bad conduct discharge and a reduction to the grade of E-1.

CAAF heard oral argument in January 2011 but then remanded the case back to the AFCCA because CAAF can’t review a case where the CCA hasn’t taken dispositive action on the findings. The CCA issued another opinion in August 2011, this time approving the findings but again returning the case to the convening authority with the limitation of only a suspended bad-conduct discharge. And again the JAG certified the case to CAAF. But CAAF granted a cross-appeal on the adultery charge, and when CAAF decided the case in June 2012, it set aside the adultery charge and remanded for a sentence reassessment without ever reaching the certified issue (though both Chief Judge Baker and Judge Stucky would have reached the certified issue, and would have reversed).

So, in December of last year, the CCA issued its third opinion in this case. Noting the opinions of Chief Judge Baker and Judge Stucky disagreeing with its treatment of the bad-conduct discharge, the CCA maintained that its determination regarding an unsuspended punitive discharge is “entirely consistent” with its sentence-appropriateness powers. But, considering that the adultery conviction had been set aside, the CCA reassessed the sentence, disapproved the discharge, and approved only the reduction to E-1. So, the JAG certified the case to CAAF a third time, this time asking:

Whether the Air Force Court of Criminal Appeals erred in finding Appellee’s sentence inappropriately severe under the unique circumstances of this case.

But again, CAAF doesn’t answer this question. Instead, last week it set aside the consensual sodomy conviction in light of this term’s decision in United States v. Castellano, No. 12-0684/MC, leaving SrA Humphries convicted of nothing:

No. 10-5004/AF.  U.S. v. Ryan D. HUMPHRIES.  CCA 37491.  On further consideration of the granted issue, 72 M.J. ___ (C.A.A.F. 2013), and in view of United States v. Castellano, 72 M.J. 217 (C.A.A.F. 2013), it is ordered that the decision of the United States Air Force Court of Criminal Appeals is reversed.  The findings of guilty to the Additional Charge and its specification and the sentence are set aside.  The record is returned to the Judge Advocate General of the Air Force.  A rehearing on the affected charge and the sentence is authorized.

In light of the above order, we dismiss the certified issue as moot.

So after three certifications, we still don’t know whether a CCA can force a convening authority to suspend a punitive discharge. But thinking about this case, this comes to mind.

Cert. denied in Behenna, SCOTUSBlog coverage here and orders list here.  H/t SCOTUSBlog.

This week at SCOTUS: The Supreme Court denied the petition in Ali v. United States, No. 12-805. Behenna is scheduled for conference on May 30, 2013. I’m not aware of any other military justice developments at the Supreme Court. There is just one military justice case pending SCOTUS action:

This week at CAAF: The next scheduled oral argument at CAAF is on June 11, 2013.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Wednesday, May 22, 2013:

United States v. Marino, No. 20120107

Issue: [Whether t]he charge is invalid under the preemption doctrine of the Uniform Code of Military Justice because it prohibits the charging of General Article 134 when the appropriate charge is the enumerated offense of article 92.

Note: A friend informs me that this case involves a soldier in Germany who pleaded guilty to two specifications of wrongful possession of child pornography in violation of Article 134 (prior to the President’s enumeration of that offense). But there is also a local general order prohibiting possession of such materials. The Appellant argues that the existence of the order preempts the application of Art. 134 to his misconduct.

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

This week at the CGCCA: The Coast Guard Trial Docket shows no pending cases at the Coast Guard CCA.

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on Wednesday, May 22, 2013:

United States v. Paris

Case Summary:
A panel of members with enlisted representation, sitting as a special court-martial, convicted the appellant, contrary to his plea, of attempting to access, with the intent to view, child pornography in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. The members sentenced the appellant to reduction to the pay grade E-1 and a bad-conduct discharge. The convening authority approved the sentence as adjudged, and except for the punitive discharge, ordered it executed.

I. Whether the appellant’s entry of terms into a search engine was a “substantial step” toward the commission of the offense.
II. Whether the evidence proved beyond a reasonable doubt that the appellant had the specific intent to access websites containing child pornography.

Yesterday 1LT Behenna’s counsel filed this reply brief responding to the SG’s brief in opposition in Behenna v. United States, No. 12-802.  And today, SCOTUS scheduled the case for the 30 May conference.

Today the Golden CAAF II was spotted hanging hooves off Waikiki.  Cowabunga!

Cowabunga 2

For those of you who are new to CAAFlog, the Golden CAAF is a trophy that we send to any counsel who gets a cert grant to review a CAAF decision.  The Golden CAAF I was awarded to Code 46 for the Denedo grant.

Will the Golden CAAF II soon be returning to the Mainland, destination DuPont Circle or Palo Alto?  We should know the answer to the former at 1000 EDT a week from today.

Yesterday’s SCOTUSblog petition of the day was Behenna v. United States, No. 12-802.

The cert petition in Ali v. United States, No. 12-805, has been circulated for the Supremes’ Thursday, 9 May conference.  That means we’ll likely know the result at 1000 on Monday, 13 May.

Too bad the Kabul Klipper has sworn off blogging.  I’d be interested in the odds he places on whether the Golden CAAF II will be making a trip to DuPont Circle.

Here’s a link to the petitioner’s reply to the SG’s opposition the the cert petition in Ali v. United States, No. 12-805.

Here’s the Solicitor General’s opposition to the cert petition in Ali v. United States, No. 12-805, dealing with the permissibility of court-martialing a civilian contractor accompanying U.S. forces in a combat zone.

The cert petition is available here.

The Questions Presented by the cert petition are:

1. Whether Congress’s decision not to create federal district court jurisdiction for the trial of a class of civilians supporting military forces overseas provides sufficient constitutional justification for subjecting such civilians to trial by court-martial.

2. Whether a citizen of a foreign country serving as a civilian contractor in support of the United States military’s mission overseas is entitled to Fifth and Sixth Amendment rights in connection with criminal prosecution by the United States.

Here are the QPs as presented by the SG’s opp:

Under 10 U.S.C. 802(a)(10), “persons serving with or accompanying an armed force in the field”  during a “declared war or a contingency operation” may be tried for violations of the Uniform Code  of Military Justice (UCMJ) in a court-martial.  Petitioner, a citizen of both Iraq and Canada who  served as a civilian interpreter with a U.S. Army unit in Iraq, was charged in a court- martial  with three violations of the UCMJ. He pleaded guilty and was sentenced to 115 days of confinement  previously served. The questions presented are as fol- lows:
   1. Whether Congress lacked the power under Arti- cle I of the Constitution to authorize  the  exercise of court-martial jurisdiction over petitioner.
   2. Whether the exercise of court-martial jurisdiction over petitioner violated the Fifth and Sixth  Amendments.

Here’s an amicus brief filed by 37 retired generals and admirals (including 5 retired 4-stars) supporting certiorari in Behenna v. United States, No. 12-802.

Professor Steve Vladeck, one of the counsel on NACDL’s amicus brief in Behenna, No. 12-802, has posted this comment on the amicus brief.  Professor Vladeck explains that “by virtue of both its own jurisprudence and subsequent legislation, our brief explains why the Supreme Court should do more ‘error-correcting’ in military appeals than in any other category of cases.”

NACDL has filed this amicus brief supporting certioarari in Behenna.

The SG almost always, but not invariably, waives the United States’ right to respond to military cert petitions.  It appears that Ali, No. 12-805, will be one of the rare exceptions.  Yesterday, the SG’s deadline for filing an opposition was extended to 6 March 2013.

I believe that this will be the fourth time since 2006 that the SG has chosen to respond to a military cert petition without a call for response from the Supremes.  The previous cases were  Loving, No. 09-989; Smith, No. 10-18; and Huntzinger, No. 10-158.  In all three of those cases, the Supremes denied cert despite substantial speculation on CAAFlog that Smith would be a Golden CAAF winner.