CAAF decided the certified Air Force case of United States v. Atchak, 75 M.J. 193, No. 16-0054/AF (CAAFlog case page) (link to slip op.), on Tuesday, April 12, 2016. Observing that Article 66(d) permits – but does not require – a court of criminal appeals to authorize a rehearing when it disapproves a finding of guilty, CAAF finds that the Air Force CCA did not abuse its discretion by not authorizing a rehearing in this case. The court answers the certified question in the negative and affirms the CCA’s decision that reversed the appellee’s guilty pleas to aggravated assault for engaging in unprotected sexual contact with two fellow servicemen after the appellee was informed that he is HIV-positive.

Judge Ryan writes for a unanimous court.

The appellee pleaded guilty to two orders violations, one specification of dereliction of duty, and three specifications of aggravated assault by a means likely to cause death or grievous bodily injury in violation of Articles 92 and 128, and was sentenced to confinement for three years, total forfeitures, and a bad-conduct discharge. The orders violations and aggravated assaults arose out of the appellee’s unprotected sexual activity with other Airmen after the appellee was informed that he is HIV-positive and was ordered to inform his partners of his status and only engage in protected sexual activity. On appeal, however, the Air Force CCA applied CAAF’s recent decision in United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. Feb. 23, 2015) (CAAFlog case page), to reverse the pleas of guilty to aggravated assault, finding insufficient evidence of a risk of transmission of HIV from the appellee to his sexual partners. The CCA also found that it could not affirm a conviction of the lesser included offense of assault consummated by a battery because the plea inquiry did not adequately address the defense of consent. Accordingly, the CCA dismissed the assault charge and reassessed the sentence (reducing it to confinement for eight months and a bad-conduct discharge).

The Judge Advocate General of the Air Force then certified the case to CAAF with the following issue:

Whether the Air Force Court of Criminal Appeals erred in setting aside and dismissing the specifications of aggravated assault without authorizing the convening authority to order a rehearing for the lesser included offenses of assault consummated by a battery.

Judge Ryan’s opinion highlights the discretionary nature of a CCA’s decision to authorize a rehearing and resolves this case on the absence of evidence that the Air Force court abused its discretion. But while the Government loses the battle, I think it wins the war.

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

United States v. Gay, Nos. 15-0742/AF & 15-0750/AF (CAAFlog case page): Oral argument audio

United States v. Atchak, No. 16-0054/AF (CAAFlog case page): Oral argument audio

Two new Air Force certified cases were docketed at CAAF on Wednesday. In the first case, the AFCCA found (link to slip op.) that the military judge improperly admitted evidence of a prior alleged sexual offense under Mil. R. Evid. 413:

No. 16-0053/AF. U.S. v. Shelby L. Williams. CCA 38454.  Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 on this date on the following issues:

I. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY FINDING THAT THE TRIAL DEFENSE COUNSEL SUFFICIENTLY OBJECTED TO THE ADMISSION OF THE EVIDENCE RELATING TO A PREGNANCY AND MISCARRIAGE.

II. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY FINDING THAT THE MILITARY JUDGE ABUSED HER DISCRETION WHEN SHE ADMITTED TESTIMONY PURSUANT TO MIL. R. EVID. 413, AND ERRED IN FINDING PREJUDICE.

III. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS COMMITTED A LEGAL ERROR BY DENYING THE UNITED STATES’ MOTION TO SUBMIT A DECLARATION FROM AN EXPERT WHO ADDRESSED THE MEDICAL CONCLUSIONS RAISED FOR THE FIRST TIME IN THE MAJORITY OPINION.

Appellant will file a brief under Rule 22(b) in support of said certificate on or before November 6, 2015.

In the second case, the AFCCA (link to slip op.) applied CAAF’s recent decision in United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. Feb. 23, 2015) (CAAFlog case page), to reverse the HIV-positive appellant’s pleas of guilty to aggravated assault with a means likely to produce death or grievous bodily harm, finding insufficient evidence of a risk of transmission of HIV from the appellant to his sexual partners. However, the CCA affirmed other pleas of guilty, and reassessed the sentence, resulting in the dismissal of the assault charge and prompting the certification:

No. 16-0054/AF. U.S. v. Gavin B. Atchak. CCA 38526.  Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 on this date on the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN SETTING ASIDE AND DISMISSING THE SPECIFICATIONS OF AGGRAVATED ASSAULT WITHOUT AUTHORIZING THE CONVENING AUTHORITY TO ORDER A REHEARING FOR THE LESSER INCLUDED OFFENSES OF ASSAULT CONSUMMATED BY A BATTERY.

Appellant will file a brief under Rule 22(b) in support of said certificate on or before November 6, 2015.

Additionally, CAAF granted review in a Marine Corps case involving human lie detector testimony, the admission of which the CCA found was obvious but harmless error:

No. 15-0754/MC. U.S. v. Beau T. Martin. CCA 201400315.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:

WHETHER THE COURT OF CRIMINAL APPEALS ERRED IN HOLDING THAT THE HUMAN LIE DETECTOR TESTIMONY OFFERED BY THE ALLEGED VICTIM’S HUSBAND WAS NOT MATERIALLY PREJUDICIAL.

Briefs will be filed under Rule 25.

The NMCCA’s decision is available here.