CAAFlog » September 2012 Term

Here are the Government’s petition for reconsideration, Appellant’s answer, and a motion by Appellant asking CAAF to issue its mandate forthwith.

The Government’s petition concludes:

In summary, the Supreme Court has consistently held that Edwards and its progeny are intended to apply a clear, bright-line prophylactic rule “to prevent police from badgering a defendant into waiving his previously asserted Miranda rights.” Minnick, 498 U.S. at 150. In this case, not only was Edwards not violated, but there is no evidence of badgering, coercion, or any other improper influence upon Appellant by the police or other Government representatives. On the contrary, Appellant clearly demonstrated a desire to “tell his side of the story,” and persisted in this desire after sleeping on his decision overnight. (J.A. 128.) This reinitation was voluntary, and his subsequent waiver of his right to counsel was knowing and intelligent. This Court should therefore reconsider its application of Edwards, assess the facts and circumstances surrounding Appellant’s subsequent waiver, and affirm the decision of the Court below.

Appellant’s response is, in a word, blunt:

The Government’s Petition for Reconsideration, in direct contradiction to Buber and Rule 32, simply restates arguments already presented and rejected by this Court. Indeed, Petitioner fails to even make a prima facie claim that it is offering new argument, and never specifically alleges that this Court “misapprehended” or “overlooked” facts or law. C.A.A.F. R. 32. This Court should therefore summarily dismiss the petition for non-compliance with Rules 31 and 32.

CAAF decided the certified case of United States v. Porter, No. 12-5003/MC, 72 M.J. 335 (CAAFlog case page) (link to slip op.), on July 8, 2013, finding that portions of the drug testing report were testimonial and that their admission into evidence over Defense objection was preserved constitutional error that was not harmless beyond a reasonable doubt, and affirming the NMCCA’s opinion that set aside Appellee’s convictions.

The court issued a per curiam opinion, and did not hear oral argument. The NMCCA issued two opinions in this case, which we discussed here and here.

(plagiarizing from our prior coverage here:) Appellee was involved in a car crash off-base near MCAS Cherry Point and was taken to a civilian hospital. The doctors performed toxicology tests that indicated drug use. The next day, Appellee went to a military medical facility where doctors suspected he was still under the influence of drugs and ordered toxicology reports for medical reasons. Those tests were positive for cocaine and marijuana. Appellee’s CO then ordered a probable cause seizure and search of Appellee’s blood and urine to test for evidence of drug use. CID sent the samples to the Armed Forces Institute of Pathology (AFIP) for testing. AFIP determined that the samples were positive for cocaine and marijuana. An AFIP expert witness with no involvement in the testing showed up to testify at Appellee’s judge-alone special court-martial. The government offered a 169-page report that included the signatures of analysts and a reviewer who weren’t present at trial. Defense Counsel objected on Confrontation Clause grounds. The Military Judge admitted the exhibit into evidence over the Defense objection.

The CCA found that the admission was error, in violation of Appellee’s rights under the Confrontation Clause, and reversed. The Judge Advocate General of the Navy then certified the case to CAAF, with two issues that questioned the purpose of the statements and their affect on the findings. In its resolution of the case, CAAF notes that “[a]t no time during his testimony, however, did [the expert] specifically interpret or rely on the machine-generated data contained in the [drug testing report] to independently conclude that Appellee’s sample tested positive for [marijuana] and [cocaine].” Slip op. at 5. This becomes dispositive, as two pages from the 169 page report “contain summaries of the test results with signatures of an analyst and a reviewer,” and the expert “primarily relied on these pages to establish that AFIP’s testing controls and standards were met for Appellee’s test.” Slip op. at 6.

CAAF explains that “the two summary confirmation pages at issue squarely qualify as testimonial statements under the Supreme Court’s various formulations.” Slip op. at 6-7. This analysis includes the fact that “the pages, which also summarize the results of Appellee’s test, were prepared by analysts at CID’s request and with certain knowledge that the testing was part of a criminal investigation.” Slip op. at 7. They “were generated by an external request from CID for the purpose of criminal investigation” (slip op. at 7) and “were created for the purpose of “establish[ing] or prov[ing] past events potentially relevant to later criminal prosecution” (slip op. at 8). And CAAF cannot say that their admission was harmless, so the CCA’s decision that set-aside the findings and authorized a rehearing is affirmed.

I see CAAF’s focus on the reasons the statements were created as particularly significant. In my discussion of the CCA’s second opinion, I noted that even though the entire report was prepared for the purpose of litigation (meaning it was not a business record excepted from the rule against hearsay), the CCA observed that CAAF has relied on an analysis of the reason for each statement – rather than the reason for the original collection of evidence – when determining if a statement is testimonial. The CCA also noted that “CAAF has held that machine-generated data and printouts are not statements and thus not hearsay because machines cannot be considered declarants” (and if there’s no declarant, there’s no hearsay that needs a business record exception). I lamented this development, as I had some years earlier, because it implies that so long as the quest for evidence is conducted by machines, no witness need appear in court in order to admit the results produced by those machines (I think this terribly mistaken).

CAAF’s resolution of this case indicates that the court is not ready to totally abandon the original purpose test when looking at statements, as the court repeatedly references the criminal investigation that lead to the drug testing report. But in an age when the military is automating everything, the court doesn’t have a reason to directly address my concern about prosequi ex machina.

Yet.

Case Links:
NMCCA opinion
Blog post: Significant unpublished NMCCA opinion
NMCCA corrected opinion
Blog post: NMCCA revises reasoning in Porter, result unchanged
Blog post: Porter certified to CAAF
CAAF opinion
Blog post: Opinion analysis

CAAF issued three opinions today:

United States v. Schell, No. 13-5001/AR (opinion) (CAAFlog case page)

United States v. Porter, No 12-5003/MC (opinion) (CAAFlog case page)

United States v. Mott, No. 12-0604/NA (opinion) (CAAFlog case page)

It’s going to be a few days before I’ll have a chance to analyze them.

The court also docketed a certificate of review in another (see Arriaga and Carter) Air Force case involving prejudice and the plain error test:

United States v. Lindgren, No. 13-5009/AF

Issues:
I. Whether Appellee satisfied his burden to demonstrate that the defective specification under Article 134, UCMJ, materially prejudiced his substantial rights when he was provided actual notice of the terminal element through an Article 32 report received prior to trial.
II. Whether the Air Force Court of Criminal Appeals applied an erroneous standard of law when evaluating whether the defective specification under Article 134, UCMJ, materially prejudiced Appellee’s substantial rights by failing to consider whether the evidence on the missing element was “overwhelming and essentially uncontroverted” and by finding notice of the missing element was not extant in the record.
III. Whether this honorable court should apply the fourth prong of the plain error analysis as articulated by the United States Supreme Court in United States v. Olano, 507 U.S. 725 (1993), when assessing whether the defective specification under Article 134, UCMJ, materially prejudiced appellee’s substantial rights in this case.

CAAF decided United States v. Hutchins, No. 12-0408/MC, 72 M.J. 294 (CAAFlog case page) (link to slip op.), on June 26, 2013, finding that the Naval Criminal Investigative Service (NCIS) unlawfully reinitiated communications with Appellant after he requested an attorney, leading to a confession that was erroneously admitted at trial, and that the error was not harmless beyond a reasonable doubt. CAAF reverses the trial military judge’s ruling admitting the confession and the Navy-Marine Corps CCA, and sets aside the findings and sentence. The court does not reach the second issue, which questioned whether the Secretary of the Navy’s post-trial remarks constitute unlawful command influence.

Judge Erdmann writes for the court, joined by Judge Stucky and Senior Judge Effron. Judge Ryan writes separately, concurring in the result and also addressing the Secretary’s comments and finding that they resulted in the appearance of unlawful command influence. Chief Judge Baker dissents, finding no error in the admission of Appellant’s confession because he initiated the communication with NCIS, and finding that Appellant failed to meet his burden to show “some evidence” of unlawful command influence.

Appellant, Sergeant Hutchins, U.S. Marine Corps, was tried in 2007 by a general court-martial composed of members with enlisted representation, and convicted contrary to his pleas of conspiracy, false official statement, unpremeditated murder, and larceny, in violation of Articles 81, 107, 118, and 121, UCMJ. Appellant’s conviction resulted from his participation a 2006 kidnap-murder conspiracy in Iraq that is colloquially known as the “Hamdania incident.” He was sentenced to reduction to E-1, a reprimand, confinement for 15 years, and a dishonorable discharge. The Convening Authority disapproved the reprimand and all confinement in excess of 11 years.

This case was at CAAF for the second time. The first time, CAAF reversed in part a decision of the NMCCA (Hutchins I) that  set-aside the findings after the CCA determined that Appellant’s detailed defense counsel was improperly released from the representation upon his end of active service. The CCA’s opinion resulted in Appellant’s brief release from confinement. After CAAF’s ruling reversing the CCA (Hutchins II), Appellant was returned to the brig, and the case was returned to the CCA for further consideration. On remand, the NMCCA affirmed the findings and sentence (Hutchins III). CAAF then granted review of two issues, both of which were considered by the NMCCA in Hutchins III:

I. Whether the findings and sentence must be dismissed with prejudice where unlawful command influence from the Secretary of the Navy has undermined substantial post-trial rights of the Appellant.

II. The Appellant was interrogated by NCIS concerning his involvement in the alleged crimes, and terminated the interview by invoking his right to counsel.  Appellant was thereafter held incommunicado and placed in solitary confinement where he was denied the ability to communicate with a lawyer or any other source of assistance.  Appellant was held under these conditions for 7 days, whereupon NCIS re-approached Appellant and communicated with him regarding their ongoing investigation.  In response, Appellant waived his previously invoked right to counsel and subsequently provided NCIS a sworn statement concerning the alleged crimes. Did the military judge err when he denied the defense motion to suppress the Appellant’s statement?  See Edwards v. Arizona, 451 U.S. 477 (1981), and United States v. Brabant, 29 M.J. 259 (C.M.A. 1989).

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United States v. Hutchins is out.  I’m sure Zack will have some pithy analysis soon.

Last week CAAF published a short per curiam opinion in United States v. Whitaker, No. 13-5004/CG, 72 M.J. 292 (CAAFlog case page) (link to slip op.). The case was certified by the Judge Advocate General of the Coast Guard in February, as something of a Medina trailer addressing the Coast Guard CCA’s application of Hartman.

In United States v. Hartman, 69 M.J. 467 (C.A.A.F. 2011), CAAF reversed the NMCCA and set aside that appellant’s plea of guilty of consensual sodomy in violation of Article 125 because the military judge’s inquiry with the appellant into the factual basis for his plea did not adequately establish why that appellant’s conduct was criminal in light of the liberty interest identified by the Supreme Court in  Lawrence v. Texas, 539 U.S. 558 (2003), and applied by CAAF in United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004).

Earlier this term, in United States v. Medina, 72 M.J. 148 (C.A.A.F. 2013) (which like this case was also certified by the Coast Guard JAG), CAAF explained that a plea of guilty to consensual sodomy could not survive review where “the inquiry did not establish the accused’s personal understanding of the relationship between the facts he was admitting and why his plea to voluntary sexual activity with an adult could nonetheless be subject to criminal sanction.” Slip op. at 5. CAAF affirmed the CGCCA’s decision vacating the conviction in Medina.

In Whitaker, the CGCCA also reversed the conviction for consensual sodomy, entered in accordance with the Appellee’s pleas at a general court-martial composed of a military judge alone. He pleaded guilty to sodomy, assault consummated by a battery (three specifications), and providing alcohol to a minor, in violation of Articles 125, 128, and 134, UCMJ, and was sentenced to confinement for fifteen months, reduction to E-1, total forfeitures, and a dishonorable discharge.

“At trial, Appellee stipulated that he committed oral sodomy upon a sleeping shipmate by inserting his penis between her lips and that he knew she ‘was asleep and an unwilling participant.'” Slip op. at 2. The CGCCA focused its analysis “on the absence of the type of
guilty plea colloquy discussed in [Hartman]. The CGCCA concluded that the military judge’s failure to explain to Appellee either that certain sexual activity is constitutionally protected under [Lawrence], or why an act of sodomy committed upon a sleeping victim fell outside the bounds of Lawrence’s protected liberty interest, rendered Appellee’s plea improvident.” Id. (citations omitted). But CAAF reverses, finding that the Appellee’s plea was provident:

Here, Appellee admitted in the stipulation of fact to an act of sodomy occurring without consent, since a sleeping victim cannot consent. Nonconsensual sexual activity is simply not protected conduct under Lawrence, and an act of sodomy with a sleeping victim does not implicate constitutional protections or even arguably constitute permissible behavior. Thus, contrary to the CGCCA’s reasoning, the military judge did not err in failing to explain why Appellee’s conduct was subject to criminal sanction.

Slip op. at 3-4 (citations omitted).

Even though this plea survived review, I suspect that any military judge hearing a plea in a similar case today would conduct a Hartman inquiry as a matter of prudence.

CAAF decided United States v. Squire, No. 13-0061/AR, 72 M.J. 285 (CAAFlog case page) (link to slip op.), on June 13, 2013, finding that the statements the 8 year old child sexual assault victim made to medical providers were not testimonial and the Appellant was not deprived of his Sixth Amendment right to confront his accuser when the military judge admitted the statements as having been made for purposes of medical diagnosis or treatment. CAAF affirms the Army CCA and the findings and sentence.

Judge Erdmann writes for a unanimous court.

The Appellant was convicted contrary to his pleas, by a general court-martial composed of members, of engaging in a sexual act with a child who had not attained the age of twelve years, in violation of Article 120 (2006). He was sentenced to confinement for 20 years and reduction to E-1.

The conviction was based on an alleged encounter between the Appellant and his fiance’s 8 year old daughter. After coming home early, the girl’s mother encountered the girl leaving the master bedroom wearing only a long t-shirt (and not the underwear and pants she had been wearing). The Appellant was in the master bed, also without pants. The mother questioned the girl, and the girl said that the Appellant had touched her vagina. Medical treatment was sought, and two doctors conducted separate examinations of the girl. During those examinations the girl made additional statements, including saying that the Appellant “put his wee wee inside me and it hurt.” DNA analysis of swabs taken from the girl’s genitals and underwear further implicated the Appellant in the assault. Neither side called the child to testify at trial, but the Government successfully moved to introduce her statements to the doctors under the exception to the general rule against hearsay for statements made for the purposes of medical diagnosis or treatment.

CAAF granted review to determine:

Whether Appellant was denied his Sixth Amendment right to confront his accuser when the military judge permitted testimonial hearsay in the form of SL’s statement to a physician.

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CAAF decided United States v. Jasper, No. 13-0013/AR, 72 M.J. 276 (CAAFlog case page) (link to slip op.), on June 4, 2013, finding that the trial judge erred when he prohibited the Defense from introducing statements made by the child victim to her pastor concerning her allegations that the Appellant sexually abused her, after the trial judge concluded that the victim did not waive the clergy privilege despite both her and her mother giving the pastor permission to disclose the statements to the trial counsel. CAAF reverses the Army CCA and sets aside the findings and sentence, and authorizes a rehearing.

Judge Ryan writes for a unanimous court.

The Appellant was convicted contrary to his pleas, by a general court-martial composed of officer and enlisted members, of one specification of indecent conduct, two specifications of committing an indecent act with a child, and one specification each of knowingly possessing child pornography, knowingly receiving child pornography, persuasion and enticement of sexually explicit conduct for the purpose of producing visual depictions, and obstruction of justice, in violation of Articles 120 and 134. He was sentenced to confinement for 23 years (reduced to 18 by the convening authority), total forfeitures, reduction to E-1 and a dishonorable discharge.

The convictions are all related to sexual conduct between the Appellant and his stepdaughter [BK], alleged to have occurred in 2006-2007, and then again in 2009. Prior to trial, the Trial Counsel notified the Defense that BK’s pastor had disclosed (with the permission of both BK and her mother AJ), to the Trial Counsel, that in 2007 BK told the pastor that she had fabricated the earlier allegations to get attention. The Defense then sought to call the pastor at trial to testify about this admission, but BK and AJ asserted the clergy privilege (having been advised by the Trial Counsel that they could do so).

The Defense asserted that the privilege was waived when the pastor was authorized to disclose the communications to the Trial Counsel. But the military judge found no waiver and applied the privilege to prevent the testimony of the pastor or any examination regarding the statements made to the pastor. BK and AJ then testified at trial, constituting the principle evidence against the Appellant, and the Trial Counsel argued in closing that BK was credible, saying:

“you can’t make [BK’s testimony] up,” “the kinds of details [that BK recalled] that if you’re making something up, just don’t come out,” and “[i]t went down just the way she explained it.”

Slip op. at 6.

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Audio of today’s oral argument in LRM v. Kastenberg, No. 13-5006/AF, is available at this link.

I haven’t listened to the recording yet, but I do see that it’s an hour and 18 minutes long. Since each of the participants was to receive 15 minutes to argue, there was apparently a lot of bonus time granted.

CAAF will hear oral argument in LRM v. Kastenberg, No. 13-5006/AF, on Tuesday, June 11, 2013. The case involves three issues certified to CAAF by the Judge Advocate General of the Air Force addressing whether LRM (an alleged victim in a sexual assault case pending trial by court-martial) has a right to make legal arguments to the trial judge on evidentiary matters by and through her counsel. That counsel is an Air Force judge advocate provided to LRM through the Air Force Special Victims’ Counsel (SVC) program.

The military judge denied LRM’s request, finding that the right to be heard in the Military Rules of Evidence only allows an alleged victim the right to be heard personally, of through a guardian in the case of incompetency. LRM petitioned the AFCCA for a writ of mandamus, but that court found that it lacked jurisdiction to grant the writ “regarding this particular, collateral, civil/administrative issue involving a non-party to the court-martial.” The JAG then certified the following issues:

I. Whether the Air Force Court of Criminal Appeals erred by holding that it lacked jurisdiction to hear A1C LRM’s petitino for a writ of mandamus.
II. Whether the military judge erred by denying A1C LRM the opportunity to be heard through counsel thereby denying her due process under the Military Rules of Evidence, the Crime Victims’ Rights Act and the United States Constitution.
III. Whether this Honorable Court should issue a writ of mandamus.

The parties to the petition are the alleged victim and Appellant (LRM), the trial military judge and Appellee (Lieutenant Colonel Kastenberg), and the accused and Real Party in Interest (Airman First Class Daniels). The Appellant’s brief provides the only real glimpse into the facts of the case:

Airman LRM, 627 LRS, McChord AFB, Washington, reported to authorities that on 13 August 2012, [the Accused], 49 CES, Holloman AFB, New Mexico, penetrated her vagina and anus with his finger and penis despite her repeated statements to him to stop, that he was hurting her, and that she was done having sex. This allegation led to two specifications of a violation of UCMJ Article 120 being preferred against him on 16 October 2012 and then being referred to trial by General Court-Martial on 28 November 2012.

This case has attracted numerous amicus briefs: The Air Force Appellate Government division wrote a brief that has been re-captioned as the Amicus Brief of the United States, and the division will receive time during oral argument. This brief supports finding that the AFCCA erred in finding no jurisdiction, and remanding the case to the CCA for consideration of the underlying issues. Additionally, the United States Air Force Trial Defense Division, Navy-Marine Corps Appellate Defense Division, the Army Appellate Defense Division, and the United States Marine Corps Defense Services Organization wrote in support of the Appellee and Real Party in Interest. Finally, the National Crime Victim Law Institute and “Protect Our Defenders,” wrote in support of the Appellant. Some of these briefs are available on CAAF’s website (links provided at the end of this post).

While the jurisdictional issue is a threshold question, I think that any practical consideration of this case first requires determining if an alleged victim has a firmly-grounded right to engage in what amounts to interpleading in a court-martial. If the answer to this question is yes (and I doubt that it is), then the rulings of the military judge (i.e., should the writ issue) and the jurisdiction of the appellate courts to review them (i.e., can the writ issue) must be addressed.

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CAAF decided United States v. Bennitt, No. 12-0616/AR, 72 M.J. 266 (CAAFlog case page) (link to slip op.), on June 3, 2013, finding that the Appellant’s conviction for involuntary manslaughter in violation of Article 119(b)(2) is legally insufficient because the Appellant’s conduct was not an offense directly affecting the person as envisioned by Congress or as determined by precedent, reversing the ACCA, and setting aside the findings in part and the sentence.

Judge Stucky writes for the court, joined by Judges Erdmann and Ryan, and Senior Judge Cox. Chief Judge Baker dissents in a separate opinion in which he explains that he would affirm the ACCA and the conviction.

The Appellant was convicted, contrary to his pleas by a general court-martial composed of a military judge alone, of involuntary manslaughter by aiding and abetting in violation of Article 119(b)(2), UCMJ. He was acquitted of involuntary manslaughter by culpable negligence under Article 119(b)(1), UCMJ. He was also convicted, in accordance with his pleas, of four specifications each of wrongful use and distribution of a controlled substance in violation of Article 112a, UCMJ. He was sentenced to confinement for 70 months, total forfeitures, reduction to E-1, and a dishonorable discharge.

The facts of the case involved the Appellant’s use and distribution of prescription opioid painkillers to his 16 year-old girlfriend, who overdosed and died while in the Appellant’s barracks room in 2009. The girlfriend [LK], and her friend [TY], had asked the Appellant for the drugs, and he had “crushed the pill on the nightstand for them, and divided it with a card from his wallet. The girls then snorted the crushed pill using a dollar bill.” Slip op. at 4. LK was later found unresponsive, and then died, and TY was hospitalized for a drug overdose.

Article 119(b), UCMJ, provides:

(b) Any person subject to this chapter who, without an intent to kill or inflict great bodily harm, unlawfully kills a human being —

(1) by culpable negligence; or
(2) while perpetrating or attempting to perpetrate an offense, other than those named in [Article 118(4)], directly affecting the person;

is guilty of involuntary manslaughter and shall be punished as a court-martial may direct.

The Appellant was charged under both theories (the culpable negligence being providing the pill and snorting device to a young person with a propensity to take drugs; the offense directly affecting the person being aiding and abetting wrongful use of drugs), but was acquitted of the culpable negligence theory and convicted of (what I consider) the more creative charge. CAAF reviewed two issues. The first questioned whether the Appellant’s distribution of drugs to the deceased was an offense directly affecting the person. The second (unreached by the majority) questioned whether the deceased’s use of drugs is an “offense” to support a conviction via aiding and abetting, as the deceased was a civilian not subject to the UCMJ’s prohibition on drug use.

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CAAF has issued its opinion in United States v. Jasper, No. 13-0013/AR, (opinion) (CAAFlog case page).

The Appellant was convicted, contrary to his pleas by a general court-martial composed of officer and enlisted members, of one specification of indecent conduct in violation of Article 120, two specifications of committing an indecent act with a child, and one specification each of knowingly possessing child pornography, knowingly receiving child pornography, persuasion and enticement of sexually explicit conduct for the purpose of producing visual depictions, and obstruction of justice, all in violation of Article 134. He was sentenced to confinement for 23 years (reduced to 18 by the convening authority), total forfeitures, reduction to E-1 and a dishonorable discharge. The Army CCA affirmed.

Judge Ryan writes for a unanimous court. The trial judge ruled that the “putative child victim” did not waive the privilege for communications she made to her pastor concerning her allegations against Appellant that he sexually abused her (including a statement that “she had made it all up . . . to get attention”), despite both the victim and her mother giving the pastor permission to disclose the statements to the trial counsel, and pastor actually disclosing the statements. CAAF finds that the determination that the privilege was not waived was erroneous.

Here, there is no question that both BK and her guardian, AJ, affirmatively consented to Pastor Ellyson’s disclosure of the statements to trial counsel. Under such circumstances, and for the reasons below, we think that it would be inappropriate to allow the claim of privilege to prevent defense counsel from using BK’s statements at trial.

Slip op. at 9 (marks omitted).

CAAF also finds that this error was constitutional in nature, as it deprived the Appellant of the opportunity for effective cross-examination, and that it was not harmless.

There is little question that in cases such as these, the credibility of the putative victim is of paramount importance, and that a statement by that person that she had made up some or all of the allegations to get attention might cause members to have a significantly different view of her credibility.

Slip op. at 14.

The ACCA is reversed and the findings and sentence are set aside, with a rehearing authorized. Further analysis to follow.

CAAF has decided United States v. Bennit, in his favor on the granted issue.

Judge Stucky writes for the court, with a written dissent by Chief Judge Baker.

Appellant was convicted of involuntary manslaughter while perpetrating an offense directly affecting the person of LK by aiding or abetting her wrongful use of a controlled substance.  Article 119(b)(2), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 919(b)(2) (2006). We granted review to determine whether Appellant’s conviction is legally insufficient because Appellant’s distribution of the controlled substance was not an “offense . . . directly affecting the person.” Additionally, we specified a related legal sufficiency issue — whether a civilian’s use of a controlled substance is an “offense” under federal or state law sufficient to support a conviction for involuntary manslaughter via aiding and abetting the civilian’s wrongful use of drugs under Article 119(b)(2), UCMJ. We hold that Appellant’s conduct was not an offense directly affecting the person as envisioned by Congress, or as interpreted by this Court’s precedent. Therefore, Appellant’s conviction for involuntary manslaughter under Article 119(b)(2), UCMJ, is legally insufficient; we need not reach the specified issue.

Remanded for a new sentencing review.

CAAF decided United States v. Kelly, No. 12-0524/AR, 72 M.J. 237 (CAAFlog case page) (link to slip op.), on May 23, 2013, finding that the search of the Appellant’s personal computer was neither a valid inventory nor an inspection under Military Rule of Evidence 313(b) or (c), reversing the Army CCA, setting aside the Appellant’s convictions (entered pursuant to his conditional pleas) for disobeying a general order and possession of child pornography, and remanding the case for a sentence reassessment or sentence rehearing.

Judge Erdmann writes for a unanimous court.

The Appellant was injured when his four-vehicle convoy struck a roadside bomb in Iraq in April, 2007, and his personal effects are inventoried. An Army policy in effect at the time required that the effects of a dead or missing soldier be sent to the Joint Personnel Effects Depot (“JPED”) to be screened for classified material or any other material “that may cause embarrassment or added sorrow if forwarded to an eligible recipient.” While this Appellant was not dead or missing, his effects were sent to the JPED, and his personal computer was examined. The computer was first searched for classified material, with negative results. It was then searched for “gore, porn, and inappropriate,” and child and adult pornography was discovered, leading to charges of an orders violation (because possession of otherwise-lawful pornography was prohibited in Iraq) and of possession of child pornography.

At trial, the Appellant unsuccessfully moved to suppress the evidence discovered on his computer. He then entered conditional pleas of guilty of violating a general order and possession of child pornography, in violation of Articles 92 and 134. He also entered unconditional pleas of guilty of attempted larceny, larceny, and fraudulent claims, in violation of Articles 80, 121, and 132 (based on acts that occurred while he was pending trial on the pornography offenses). A military judge sitting as a general court-martial convicted the Appellant pursuant to his pleas, and sentenced him to confinement for 18 months, reduction to E-1, and a bad-conduct discharge. The Convening Authority reduced the confinement to 17 months.

The Army CCA reviewed the case and affirmed the military judge’s denial of the motion to suppress, finding that the examination of the Appellant’s computer by JPED was a valid inventory pursuant to M.R.E. 313(c), and its primary purpose was administrative. CAAF then granted review, and before CAAF the Appellant argued that “the inventory process was invoked as a pretext to ferret out possible evidence of a crime.” App. Br. at 21 (discussed here). CAAF agrees with the Appellant.

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CAAF decided United States v. Castellano, No. 12-0684/MC, 72 M.J. 217 (CAAFlog case page) (link to slip op.), on May 23, 2013, finding that since an act of sodomy may not be criminalized unless there are factors that remove sexual activity from the protected liberty interest identified by the Supreme Court in Lawrence v. Texas, then the existence of such factors must be determined by the trier of fact, reversing the NMCCA and setting aside the finding of guilty of sodomy and the sentence.

Judge Ryan writes for a unanimous court, with Judge Stucky concurring in a separate opinion in which he voices some non-dispositive (to this case) disagreement with the rest of the court.

The Appellant was convicted (in accordance with his pleas) of adultery, and (contrary to his pleas) of one specification of attempted adultery, two specifications of indecent conduct, one specification of sodomy (as a LIO of forcible sodomy), and two specifications of assault consummated by a battery (as LIOs of aggravated sexual contact), by a general court-martial composed of members with enlisted representation. He was sentenced to confinement for eighteen months, reduction to E-1, total forfeitures, and a bad-conduct discharge.

The NMCCA set-aside the assault convictions due to the trial military judge’s failure to properly instruct the members on the availability of the defense of mistake of fact as to consent. The CCA then reassessed and approved the adjudged sentence.

The NMCCA also considered, and rejected, a challenge to the trial military judge’s application of the factors outlined in United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004). In Marcum, CAAF applied the liberty interest identified by the Supreme Court in Lawrence v. Texas, 539 U.S. 558 (2003), to sodomy prosecutions under Article 125, UCMJ, via a three-part test: “First, was the conduct that the accused was found guilty of committing of a nature to bring it within the liberty interest identified by the Supreme Court? Second, did the conduct encompass any behavior or factors identified by the Supreme Court as outside the analysis in Lawrence? Third, are there additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest?” Marcum, 60 M.J. at 206-207.

The Appellant argued that the trial military judge erred when he considered the Marcum factors as a question of law, and refused to submit them to the members for their determination as de facto elements. The NMCCA rejected this argument, as it had before (see United States v. Useche, 70 M.J. 657 (N-M.Ct.Crim.App. 2012), rev. denied, 71 M.J. 379 (C.A.A.F. 2012); see also United States v. Stratton, No. 201000637 (N-M.Ct.Crim.App. Jan. 26, 2012) (unpublished) (discussed here)), and as it did again afterward (see United States v. Pearce, No. 201100110 (N-M.Ct.Crim.App. Nov. 28, 2012) (unpublished)). The NMCCA’s rejection of the Marcum-factors-as-elements argument hasn’t prevented that court from granting relief (it set-aside the findings in Stratton after concluding that the military judge improperly applied the factors), but that court has consistently held – as it did in this case – that “[j]udicially created principles, such as the Marcum factors, are not elements of offenses.” United States v. Castellano, No. 201100248 (N-M.Ct.Crim.App. Jun. 26, 2012). And the NMCCA is not alone. The AFCCA reached the same conclusion in United States v. Harvey, 67 M.J. 758, 763 (A.F.Ct.Crim.App. 2009), rev. denied, 68 M.J. 489 (C.A.A.F. 2010) (“The appellant asserts that the Marcum factors are de facto elements of his Article 133, UCMJ, offense and that it was error for the military judge not to instruct the members on the Marcum factors. We disagree.”).

But CAAF explains that this conclusion is wrong. Judge Ryan begins her discussion by explaining that “in Lawrence, the Supreme Court identified a constitutionally protected liberty interest in private sexual activity between ‘full[y] and mutual[ly] consent[ing]’ adults.” Slip op. at 10 (quoting Lawrence v. Texas, 539 U.S. 558, 578 (2003)). She continues, explaining that in Marcum, the court upheld the constitutionality of Article 125’s criminalization of sodomy by construing the statute to apply only to acts of sodomy that involve a factor identified by the Supreme Court as not involved in Lawrence, or a factor unique to the military environment that affect the nature and reach of Lawerence. This leads to a critical analytical turning point: Marcum factors are not statutory elements, however “but for the presence of a Marcum factor, the act of sodomy would not be subject to criminal sanction.” Slip op. at 11-12. Accordingly, the existence of such a factor cannot be left to the military judge’s discretion.

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