October 2018 Term of Court

Cases heard at oral argument this term: 32
Argued cases decided by authored decision: 30
Argued cases decided per curiam or by summary disposition: 2
Argued cases pending decision: 0
Other cases noted below: 2

Blog post: 2018 Term End o’ Term Stats

 

Authored Decisions (chronological by date of decision):

United States v. Eugene, 78 M.J. 132 (C.A.A.F. Oct. 29, 2018) (CAAFlog case page): Holding that the question of whether an accused revoked consent to a search is a question of fact, not a question of law, a unanimous CAAF finds no error in the military judge’s finding that the appellant did not revoke the consent his wife gave to law enforcement to search his phone.

United States v. Criswell, 78 M.J. 136 (C.A.A.F. Nov. 16, 2018) (CAAFlog case page): Reviewing a military judge’s ruling that allowed the alleged victim to identify the appellant as her assailant during her testimony, even though she did not know him before the alleged assault and she was shown a picture of him (and only him) before trial in a way that was found to be unnecessarily suggestive, CAAF narrowly affirms with a 3-2 decision. The majority applies a highly-deferential standard of review that focuses on the appellant’s appellate-stage objections to the military judge’s ruling, while the dissenters conduct a broader review, find numerous flaws in the military judge’s ruling, and would reverse the findings and authorize a rehearing.

United States v. Tucker, 78 M.J. 183 (C.A.A.F. Nov. 29, 2018) (CAAFlog case page): In its second review of a conviction of violation of Article 134 for negligently providing alcohol to a minor, CAAF holds that negligence is an insufficient mens rea (mental state) for the offense. The court reverses the Army CCA (for the second time), reverses the guilty plea to the offense, and remands for further action.

United States v. King, 78 M.J. 218 (C.A.A.F. Jan. 4, 2019) (CAAFlog case page): Emphasizing the ability of prosecutors to prove guilt with circumstantial evidence, the court finds that a conviction of viewing child pornography is legally sufficient even though computer forensics could not conclusively prove that the images were knowingly viewed.

United States v. Nicola, 78 M.J. 223 (C.A.A.F. Jan. 9, 2019) (CAAFlog case page): Because an accused who testifies in his own defense may be disbelieved by the trier of fact (members, in this case), and because such disbelief – coupled with other evidence – may form the basis for a conviction, CAAF finds a conviction for indecent viewing legally sufficient and affirms the decision of the Army CCA.

United States v. Bodoh, 78 M.J. 231 (C.A.A.F. Jan. 23, 2019) (CAAFlog case page): Reviewing a number of instances during the trial where the prosecution referenced the Army’s Sexual Harassment/Assault Response and Prevention (SHARP) program – none of which drew a defense objection – the court finds some of the references improper but harmless.

United States v. Hale, 78 M.J. 268 (C.A.A.F. Feb. 6, 2019) (CAAFlog case page): Addressing the limited (though recently expanded) UCMJ jurisdiction over members of the reserve components and the prosecution’s use of evidence of conduct that occurred outside of those limits in this case, a majority of CAAF finds the evidence was properly used to prove intent associated with conduct that was subject to UCMJ jurisdiction, and it affirms the findings, sentence, and decision of the Air Force CCA.

United States v. Forbes, 78 M.J. 279 (C.A.A.F. Feb. 7, 2019) (CAAFlog case page): CAAF unanimously affirms guilty pleas to three specifications of sexual assault by causing bodily harm based on the appellant intentionally hiding his HIV-positive status from his sexual partners.

United States v. Cooper, 78 M.J. 283 (C.A.A.F. Feb. 12, 2019) (CAAFlog case page): A nearly-unanimous court finds that an accused’s affirmative 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.

United States v. Briggs, 78 M.J. 289 (C.A.A.F. Feb. 22, 2019) (CAAFlog case page): Applying last term’s decision in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), CAAF holds that the 2006 amendment to the statute of limitations for the offense of rape was not retroactive, and that military law requires a military judge to advise an accused on the statute of limitations if it applies. Accordingly, because plain error applies the law as it exists at the time of the appeal (and not as it existed at the time of trial), Magahas makes the erroneous failure to advise on the statute of limitations plain, and Briggs’ conviction of a rape alleged to have occurred in 2005 is reversed.

United States v. Kohlbek, 28 M.J. 326 (C.A.A.F. Feb. 25, 2019) (CAAFlog case page): A unanimous court concludes that the seemingly-blanket prohibition in Mil. R. Evid. 707 against admitting evidence of polygraph examinations is not so broad; military judges may exercise their discretion in deciding whether to admit evidence regarding the facts and circumstances surrounding a polygraph examination to explain the reason or motivation for a confession.

United States v. Hamilton, 78 M.J. 335 (C.A.A.F. Feb. 28, 2019) (CAAFlog case page): Concluding that the military judge erred in admitting three victim impact statements into evidence during the sentencing phase of the court-martial – because they were not admissible under any rule – a unanimous CAAF avoids answering the separate question of whether a statement by a crime victim admissible under R.C.M. 1001A (the President’s implementation of the Article 6b right to be reasonably heard) (moved to R.C.M. 1001(c) in the 2019 MCM) is evidence that is subject to any of the Military Rules of Evidence.

United States v. McDonald, 78 M.J. 376 (C.A.A.F. Apr. 17, 2019) (CAAFlog case page): A unanimous CAAF holds that the mens rea (mental state) for the offense of sexual assault by causing bodily harm in violation of Article 120(b)(1)(B) (2012), where the bodily harm is a nonconsensual sexual act, is only the general intent to commit the sexual act, because “the burden is on the actor to obtain consent, rather than the victim to manifest a lack of consent.”

United States v. Perkins, 78 M.J. 381 (C.A.A.F. Apr. 23, 2019) (CAAFlog case page): Selectively reading Mil. R. Evid. 311 (which codifies various rules for evidence obtained as the result of an unlawful search or seizure), a majority of the court holds that Mil. R. Evid. 311(c)(3)(B) does not mean what it says, repudiating the recent unanimous decision in United States v. Hoffmann, 75 M.J. 120 (C.A.A.F. 2016) (CAAFlog case page), that applied the rule as written, and reinvigorating the not-quite-unanimous United States v. Carter, 54 M.J. 414, 421 (C.A.A.F. 2001), that held that “the phrase ‘substantial basis’ has different meanings, depending on the issue involved.

United States v. Meakin, 78 M.J. 396 (C.A.A.F. May 7, 2019) (CAAFlog case page): CAAF unanimously rejects a claim of constitutional protection for indecent online communications about sexual fantasies involving children prosecuted as conduct unbecoming an officer and a gentleman in violation of Article 133.

United States v. Harris, 78 M.J. 434 (C.A.A.F. May 16, 2019) (CAAFlog case page): A unanimous CAAF finds that the military judge rightly denied 291 days of credit for civilian pretrial confinement, affirming the published decision of the Army CCA.

United States v. Hutchins, 78 M.J. 437 (C.A.A.F. May 29, 2019) (CAAFlog case page): In its third review of this long-running prosecution, CAAF unanimously 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.

United States v. Lewis, 78 M.J. 447 (C.A.A.F. May 30, 2019) (CAAFlog case page): CAAF unanimously affirms the Army CCA’s decision that partially reversed a military judge’s ruling suppressing statements made by the accused. In a concurring opinion, Judge Ryan doubts the court’s jurisdiction to review an interlocutory appeal upon petition by the accused.

United States v. Tovarchavez, 78 M.J. 458 (C.A.A.F. May 31, 2019) (CAAFlog case page): 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.

United States v. Gleason, 78 M.J. 473 (C.A.A.F. Jun. 6, 2019) (CAAFlog case page): Sharply divided, a majority of CAAF 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.

United States v. Gonzales, 78 M.J. 480 (C.A.A.F. Jun. 7, 2019) (CAAFlog case page): 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 unanimously finds that the error is not plain or obvious because the law was unsettled, and so the court affirms the conviction.

United States v. Rodriguez, 79 M.J. 1 (C.A.A.F. Jun. 20, 2019) (CAAFlog case page): Reviewing a conviction of sexual abuse of a child in violation of the 2012 version of Article 120 and 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.

United States v. Voorhees, 79 M.J. 5 (C.A.A.F. Jun. 27, 2019) (CAAFlog case page): A unanimous court finds that the prosecutor’s personal attacks on defense counsel, personal attacks on the accused, expressions of personal opinion, bolstering, and vouching, amount to grievous error. Not too grievous, however, because the court also finds no prejudice. CAAF also concludes that the offense of conduct unbecoming an officer and gentleman, in violation of Article 133, is merely a general intent crime.

United States v. Haynes, 79 M.J. 17 (C.A.A.F. Jul. 2, 2019) (CAAFlog case page): 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).

United States v. Coleman, 79 M.J. 100 (C.A.A.F. Jul. 10, 2019) (CAAFlog case page): 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.

United States v. Frost, 79 M.J. 104 (C.A.AF. Jul. 30, 2019) (CAAFlog case page): A majority of CAAF finds that a military judge wrongly admitted a prior consistent statement by an alleged child victim of rape because the statement was made after the improper influence asserted by the defense. Considering that error in the context of otherwise-weak evidence of guilt, a smaller majority of the court concludes that it was not harmless, and reverses the findings and sentence.

United States v. English, 79 M.J. 116 (C.A.A.F. Jul. 30, 2019) (CAAFlog case page): Considering a conviction of forcible rape where the charged force was the accused grabbing the alleged victim’s head with his hands, CAAF holds that because the Army CCA found the evidence insufficient to prove that specific force, the CCA was prohibited from affirming the conviction on an alternative basis because exceptions and substitutions may not be made at the appellate level.

United States v. Navarette, 79 M.J. 123 (C.A.A.F. Aug. 1, 2019) (CAAFlog case page): Without explicitly holding that the Army CCA was wrong to deny the appellant’s request for an examination to determine his mental capacity to participate in the appellate process, a majority of CAAF remands the case to the Army court for further review of the request.

United States v. Hyppolite, II., 79 M.J. 161 (C.A.A.F. Aug. 1, 2019) (CAAFlog case page): Reviewing a military judge’s ruling under Military Rule of Evidence 404(b) that allowed the prosecution to use charged offenses as evidence that the accused acted pursuant to a common plan or scheme, a majority of the court finds no error and it affirms the findings and sentence.

United States v. Stout, 79 M.J. 168 (C.A.A.F. Aug. 22, 2019) (CAAFlog case page): Reviewing pre-referral changes to the dates of the alleged acts, CAAF finds that the changes were authorized because Article 34(c) specifically permits such changes to conform the charges to the evidence in an Article 32 report.

 

Summary & Per Curiam Decisions in Argued Cases (chronological by date of decision):

United States v. Smith, 78 M.J. 325 (C.A.A.F. Feb. 22, 2019) (CAAFlog case page): In a short, per curiam opinion, CAAF applies Mil. R. Evid. 312(d)(2)(A) and last term’s decision in United States v. Robinson (AF), 77 M.J. 303 (C.A.A.F. Mar. 26, 2018) (CAAFlog case page), to hold that the failure to raise a basis for suppression of evidence at trial waived the basis on appeal.

Hasan v. U.S. Army Court of Criminal Appeals, and United States, 79 M.J. 29 (C.A.A.F. Apr. 2, 2019) (CAAFlog case page): Just six days after hearing oral argument, CAAF summarily denied Major Hasan’s petition for a writ of mandamus ordering the judges of the Army Court of Criminal Appeals to disqualify themselves from his case, observing in part that Hasan “failed to demonstrate that he cannot obtain relief through alternative means.”

 

Other Decisions:

United States v. McGriff, 78 M.J. 487 (C.A.A.F. Jun. 12, 2019) (per curiam) (CAAFlog case page): A short, per curiam opinion explains that CAAF denies review in this case and that denial “carries no support whatsoever for concluding that the lower court either correctly or incorrectly interpreted the [law].”

United States v. Collins, 78 M.J. 415 (C.A.A.F. Mar. 12, 2019) (sum. disp.) (CAAFlog case page): CAAF summarily affirmed the decision of the Air Force CCA (after JAG certification), that applied United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), to reverse a 2017 conviction for a rape alleged to have occurred in 2000. CAAF subsequently granted Collins a writ of habeas corpus.

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