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Last term, in United States v. Blouin, 74 M.J. 247 (C.A.A.F. 2015) (CAAFlog case page), a sharply-divided CAAF reversed an appellant’s pleas of guilty for the wrongful possession of child pornography consisting of three images depicting a young girl posing provocatively in undergarments (but no sexual activity or full nudity). Despite not showing full nudity or sexual activity, such images may still constitute child pornography (as defined by Title 18 and by the President under Article 134) if they involve a lascivious exhibition of the genitals or pubic area. Whether a particular image involves such an exhibition is subject to a six-factor analysis commonly known as the Dost factors, one of which is “whether the child is fully or partially clothed, or nude.” United States v. Roderick, 62 M.J. 425, 429-30 (C.A.A.F. 2006) (citing United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986), aff’d sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987)).

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In Blouin (an Army case), the Army CCA affirmed the appellant’s guilty pleas by holding that nudity is not required for an image to constitute child pornography. To reach this decision, the CCA relied on a series of decisions originating in the Third Circuit that analyzed the Title 18 definition of child pornography: United States v. Knox, 977 F 2d. 815, (3d Cir. 1992), vacated and remanded, 510 U.S. 939 (1993) (Knox I);United States v. Knox, 32 F.3d at 736, (3d Cir. 1994) (Knox II).  Specifically, in Knox II the Third Circuit held that the “federal child pornography statute, on its face, contains no nudity or discernibility requirement, that non-nude visual depictions, such as the ones contained in this record, can qualify as lascivious exhibitions.” 32 F.3d at 737.

CAAF reversed in a 3-2 decision. In an opinion authored by now-Chief Judge Erdmann, the majority held that the plea inquiry conducted by the military judge was inadequate. The majority also rejected the CCA’s application of Knox. Yet while Knox was rejected, Chief Judge Erdmann’s opinion did not hinge on the absence of nudity in the images at issue. Rather, it hinged on a part of the Title 18 statute that requires that digital images must be graphic (meaning that the genitals or pubic area can be viewed) in addition to involving a lascivious exhibition, “because of the constitutional danger that the images might not be of actual children.” Blouin, slip op. at 8 (citing S. Rep. No. 108-2, at 6-7, 13). CAAF rejected the plea because this requirement was not adequately explained to the appellant.

Recently, the Army CCA revisited the issue of non-nude images in an unpublished decision in United States v. Cuccaro, No. 20130338 (A. Ct. Crim. App. Sep. 28, 2015) (link to slip op.). The appellant in Cuccaro was convicted of wrongful possession of child pornography (in violation of Title 18) for two images showing the 12-year-old sister of a fellow soldier. The images both appeared to have been taken by the girl herself, with one showing little more than a silhouette and the other a topless photo (in which she was wearing shorts). Considering these images, the CCA finds that:

EC’s genitals and pubic area are not exposed, nude, or discernible. Furthermore, we find contrary to the government’s assertion that EC’s “pubic area is in the image and discernible by her form fitting shorts.” Also, the focal point of this image is clearly not the girl’s shorts; rather, it is her exposed breasts.

Applying the applicable standards, we find neither image (b) nor (d) depicts a lascivious display of a minor’s genitalia and, therefore, neither image amounts to child pornography as defined by 18 U.S.C. §2256(8). See Dost, 636 F.Supp 828; Blouin, 74 M.J. 247; Roderick, 62 M.J. 425.

Slip op. at 9.

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

• Katso v. United States, No. 14-5008 (pet. for cert. filed on Sept. 25; resp. due Dec. 2) (CAAFlog case page)
• Schloff v. United States, No. 15-0294 (ext. of time to pet. for cert. granted to Dec. 13) (CAAFlog case page)

This week at CAAF: CAAF will hear oral argument in two cases this week, both on Tuesday, November 17, 2015:

United States v. Bess, No. 15-0372/NA (CAAFlog case page)

Issue: Whether the military judge abused his discretion when he allowed the admission of additional evidence during deliberations but also denied appellant the opportunity to attack the accuracy of that evidence before the factfinder.

Case Links:
• NMCCA opinion
• Appellant’s brief
• Appellee’s (Government) brief
• Appellant’s reply brief
• Blog post: Argument preview

United States v. Gifford, No. 15-0426/AR (CAAFlog case page)

Issue: Whether the Army Court of Criminal Appeals erred in holding that Second Infantry Division Policy Letter Number 8 (11 January 2010), which prohibits service members who are 21 years of age and older from distributing alcohol to persons under 21 for the purposes of consumption, did not contain an element that appellant knew that the person to whom distribution was made was under 21 years of age, and therefore imposed strict liability for such actions.

Case Links:
• ACCA opinion
• Blog post: The Army CCA finds that furnishing alcohol to a minor (in violation of a general order) is a strict liability (public welfare) offense
• Appellant’s brief
• Appellee’s (Government) brief
• Appellant’s reply brief
• Blog post: Argument preview

This week at the ACCA: The next scheduled oral argument at the Army CCA is on December 3, 2015.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on January 22, 2016.

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

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on December 9, 2015.

In a published decision in United States v. Stevens, __ M.J. __, No. 201400330 (N-M. Ct. Crim. App. Nov. 10, 2105) (link to slip op.), a three-judge panel of the NMCCA holds that “electronic media without corporeal form do not fall within the ambit of Article 121.” Slip op. at 4.

The appellant pleaded guilty to numerous specifications of larceny and attempted larceny based upon his use of other Marines’ credit card information to:

make online purchases of what the Government styled “electronic media.” The “media” included an audiobook and music downloaded to his iPhone, video games to his Sony PlayStation, and two “Boatloads of 2400 donuts” for use as virtual currency in a smart phone game based on the television show “The Simpsons.”

Slip op. at 2. The NMCCA reverses these pleas on the basis that Article 121 larceny requires property in corporeal form:

We find no further guidance in military case law on whether electronic media as alleged here can be the object of larceny under Article 121. But – saddled with a statute anchored to common law developed before electronic media even existed – we conclude that electronic media without corporeal form do not fall within the ambit of Article 121.

The property the appellant obtained using others’ money was intangible. The “donuts” in the Simpsons game – to pick the easiest example – could not be picked up, touched, or carried away because they were not real. They were conceptual, merely entitling the person who paid the fee for them to additional game play. When the appellant obtained them through fraud, these “donuts” existed and had value in the cyber world, but they had no corporeal existence in ours. Similarly, the music, audiobooks, and game software had no physical form, but instead represented the vendors’ willingness to allow the items to be downloaded – copied – for a fee.

Slip op. at 4.

The CCA’s conclusion that electronic media cannot be the object of an Article 121 larceny seems very sensible. However, I think the CCA’s focus on the intangible nature of the property is overly complicated (particularly since money may also be intangible but still the proper object of a larceny). I think a better (and simpler) view is that the appellant stole entertainment services, which is properly punished under Article 134 as obtaining services under false pretenses. See ¶ 78, MCM (“False pretenses, obtaining services under”). The false pretenses is the fraudulent use of the credit information (as a credential; similar to the misuse in United States v. Endsley, 73 M.J. 909 (A. Ct. Crim. App. Oct. 17, 2014) (discussed here), reversed, 74 M.J. __ (C.A.A.F. Jan 14, 2015) (discussed here)).

An analogous situation would be if the appellant had wrongfully used the credit information to obtain access to a book reading (in place of the audiobook), a musical performance (in place of the music download), and a video arcade (in place of the games).

In an unpublished decision in United States v. Maliwat, No. 38579 (A.F. Ct. Crim. App. Oct. 19, 2015) (link to slip op.), a panel of the the Air Force concludes that:

Congress and the courts have repeatedly said that the prior sexual misconduct of an accused is relevant to whether the accused committed the charged offenses. This includes the use of evidence of other charged sexual offenses to demonstrate propensity under Mil. R. Evid. 413.

Slip op. at 9 (citations omitted). In Maliwat, the charged sexual offenses involved two separate women, and the military judge instructed the members that if they found that a preponderance of the evidence supported the allegations then they could use that evidence as evidence the appellant’s propensity to commit sexual assault. The panel then convicted the appellant of the assault of one of the women, but acquitted him of the assault of the other.

The AFCCA joins two other CCAs in concluding that the charged sexual offenses may be used as evidence of propensity to commit the charged sexual offenses. The Army CCA reached that conclusion in United States v. Barnes, __ M.J. __, No. 20120308 (A. Ct. Crim. App. May 8, 2015) (discussed here), review denied, __ M.J. __ (C.A.A.F. July 28, 2015), and the NMCCA reached that conclusion in United States v. Bass, 74 M.J. 806 (N-M. Ct. Crim. App. Aug. 18, 2015) (discussed here).

CAAF will hear oral argument in the Army case of United States v. Gifford, No. 15-0426/AR (CAAFlog case page), on Tuesday, November 17, 2015. The court specified an issue for review, questioning the Army CCA’s conclusion that furnishing alcohol to a minor in violation of a general order is a strict liability (public welfare) offense:

Whether the Army Court of Criminal Appeals erred in holding that Second Infantry Division Policy Letter Number 8 (11 January 2010), which prohibits service members who are 21 years of age and older from distributing alcohol to persons under 21 for the purposes of consumption, did not contain an element that appellant knew that the person to whom distribution was made was under 21 years of age, and therefore imposed strict liability for such actions.

The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of three specifications of failure to obey a lawful general order (by providing alcohol to persons under the age of 21) and one specification of aggravated sexual assault upon one who was substantially incapacitated, in violation of Articles 92 and 120. The members sentenced the appellant to confinement for 45 days, reduction to E-1, total forfeitures, and a bad-conduct discharge.

The charges involved a party that the 29-year old appellant hosted in his barracks room. Four other soldiers were present, all of whom were allegedly under the age of 21 and all of whom were allegedly provided alcohol by the appellant in violation of a general order. The military judge entered a finding of not guilty to one of these allegations. and the Army CCA found the evidence supporting a second allegation to be insufficient because “although [the soldier] testified at trial, no evidence was presented as to his age.” United States v. Gifford, __ M.J. __, __, slip op. at 3 (A. Ct. Crim. App. Jan. 22, 2015). The CCA affirmed the remaining findings and the sentence.

The CCA’s decision rejected the appellant’s claim that there was no evidence that he knew that the attendees at the party were under 21 years of age. Notably, the military judge actually instructed the members that such knowledge is an element of the offense:

The military judge instructed the panel:

You may be satisfied beyond a reasonable doubt that the accused actually knew at the time of the alleged offense that the person named in a given specification was under the age of 21 years.

The relevant portion of the general order in question states, “service members who are 21 years of age and over may not distribute or give alcohol to anyone under 21 years of age for the purpose of consumption.”

Gov’t Br. at 9. But rather than weigh the evidence against this instruction, the CCA found:

that a provision in a military general order which regulates the distribution of alcohol to underage recipients is analogous to a “public welfare offense.” As such, under these circumstances and given the specific language of this particular general order, we conclude the offense of which appellant was convicted did not include a knowledge of age requirement.

Gifford, __ M.J. at __, slip op. at 4-5 (quoting Staples v. United States, 511 U.S. 600, 607 (1994)). Accordingly, the CCA concluded that “when appellant gave alcohol to his colleagues, he assumed the risk that his behavior fell within the bounds of the proscription, regardless of whether he knew them to be underage or not.” Gifford, __ M.J. at __, slip op. at 5.

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CAAF’s daily journal has this entry from yesterday:

No. 16-0091/AR. U.S. v. Djoulou K. Caldwell. CCA 20140425.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue personally asserted by Appellant:

WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR WHEN HE INSTRUCTED THE PANEL USING A NEGLIGENCE STANDARD FOR MALTREATMENT OF A SUBORDINATE IN VIOLATION OF ARTICLE 93.

Briefs will be filed under Rule 25.

(emphasis added). The right of an appellant to personally assert an error was solidified in United States v. Grostefon, 12 M.J. 431, 436-437 (C.M.A. 1982), in which the court held that a detailed appellate defense counsel must inform the military appellate courts of any issues raised by an appellant, even if the counsel believes they are frivolous:

Henceforth, we will require that when the accused specifies error in his request for appellate representation or in some other form, the appellate defense counsel will, at a minimum, invite the attention of the Court of Military Review to those issues and, in its decision, the Court of Military Review will, at a minimum, acknowledge that it has considered those issues enumerated by the accused and its disposition of them. If the Court of Military Review decides that the issues have no merit, appellate defense counsel will so notify the accused and make his recommendations as to whether the accused should petition for further review to this Court and of his recommendations as to submission of the same issues. Unless the accused consents to withdrawal or abandonment of the issues before this Court, appellate defense counsel will, in the petition for review, identify the issues. If the accused wishes to withdraw the issues, or change or modify them, appellate defense counsel will so state in the petition. Of course, this in no way prevents or discourages appellate defense counsel from submitting briefs and arguments on those issues which, in his professional judgment, have arguable merit. However, in no case will the issues submitted by the accused be ignored without evidence of the accused’s concurrence in that decision.

I’m not sure when CAAF last considered an issue raised personally by an appellant at CAAF, however the court has recently considered issues raised personally by an appellant at a CCA, such as in  United States v. Rose, 71 M.J. 138 (C.A.A.F. May 24, 2012) (CAAFlog case page), and United States v. King, 71 M.J. 50 (C.A.A.F. Mar. 13, 2012) (CAAFlog case page).

Notably, in Caldwell, there doesn’t appear to be a decision on the Army CCA’s website (that implies that it was summarily affirmed).

CAAF will hear oral argument in the Navy case of United States v. Bess, No. 15-0372/NA (CAAFlog case page), on Tuesday, November 17, 2015, at 9:30 a.m. The court specified an issue involving the unusual procedural ability of court-martial members to request evidence:

Whether the military judge abused his discretion when he allowed the admission of additional evidence during deliberations but also denied appellant the opportunity to attack the accuracy of that evidence before the factfinder.

The appellant was tried by a general court-martial composed of members with enlisted representation. He was convicted contrary to his pleas of not guilty of two specifications of attempting to commit an indecent act and four specifications of committing indecent acts, in violation of Articles 80 and 120. The members sentenced the appellant to confinement for two years and a dishonorable discharge.

The appellant was a Navy x-ray technician and the indecent acts at issue in his case involved the appellant instructing female patients to be completely naked for x-ray examinations. The appellant was tried on various charges (including allegations of physical contact) involving seven alleged victims, and he was convicted of one offense for six of those seven. The alleged victims identified the appellant during their in-court testimony, however the appellant’s identity as the x-ray technician for the alleged victims was a hotly contested issue in the trial in part because the appellant’s actions were not immediately reported.

The appellant testified in his own defense. During cross-examination by the prosecution, the appellant was asked “if he was aware the Hospital’s ‘muster reports’ showed he was at work for some of the dates in question.” App. Br. at 9. The appellant answered “that he had no idea what the muster reports said.” App. Br. at 9. The prosecution did not offer the muster reports into evidence. Afterward, in closing argument, the appellant’s defense counsel “commented on Trial Counsel’s decision not to seek admission of the muster reports.” Gov’t Br. at 23.

The members began their deliberations but stopped after about an hour to ask the military judge for additional evidence, specifically:

Will we be allowed to view statements from NCIS investigations? Will we be allowed to see the muster reports? Will we be allowed to see any counseling chits? Or any other documents used throughout the proceedings or are the exhibits we currently have all that we can view?

App. Br. at 9. After some consideration, the military judge provided the members with the muster reports, over defense objection. The military judge also denied the defense the opportunity to call additional witnesses to challenge the accuracy of the muster reports, and the military judge denied a defense request to give a new closing argument. Soon afterward, the members returned with their findings.

Article 46(a) of the UCMJ provides explicit statutory authorization for the court-martial to obtain evidence on its own initiative:

Opportunity to Obtain Witnesses and Other Evidence. The trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the President may prescribe.

This power is not at issue in Bess. Rather, the issue is what procedural safeguards must accompany it.

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The Navy JAG certified a case to CAAF last week:

No. 16-0122/MC. U.S. v. Beau T. Martin. CCA 201400315. Notice is hereby given that a certificate of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 this date on the following issue:

DID TRIAL DEFENSE COUNSEL INVITE ERROR WHEN HE OPENED THE DOOR TO HUMAN LIE DETECTOR TESTIMONY DURING THE CROSS-EXAMINATION OF THE VICTIM’S HUSBAND?

The NMCCA’s decision is available here. The certification is strange because the CCA didn’t just affirm the findings and sentence (after finding that the admission of human lie detector testimony was harmless), but it also noted that:

We are aware that the inadmissible opinion testimony originated with the defense during cross-examination. We are also aware of the “invited response” or “invited reply” doctrine, which permits the prosecution to offer comment or testimony as a fair response to claims made by the defense. See United States v. Carter, 61 M.J. 30, 33 (C.A.A.F. 2005). See also United States v. Lewis, 69 M.J. 379, 384 (C.A.A.F. 2011) (“limitation on comments cannot be used by the defense as both a shield and a sword.”) (citations omitted). However, this doctrine does not obviate the error.

United States v. Martin, No. 201400315, slip op. at 8, n.10 (N-M. Ct. Crim. App. Jun. 18, 2015) (emphasis added). The certified issue seems to merely force CAAF to reach the tautological conclusion that an invited error is still an error. Though, perhaps CAAF will go further and limit the use of this doctrine. After all:

Courts have not intended by any means to encourage the practice of zealous counsel’s going “out of bounds” in the manner of defense counsel here, or to encourage prosecutors to respond to the “invitation.” Reviewing courts ought not to be put in the position of weighing which of two inappropriate arguments was the lesser. “Invited responses” can be effectively discouraged by prompt action from the bench in the form of corrective instructions to the jury and, when necessary, an admonition to the errant advocate.

United States v. Young, 470 U.S. 1, 13 (1985).

Update: I forgot that CAAF previously granted review in this case (discussed here) of the CCA’s finding of harmlessness. However, I still think the certification is strange.

CAAF also granted review in an Air Force case:

No. 16-0007/AF. U.S. v. Calyx E. Harrell. CCA 38538. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:

WHETHER EVIDENCE OBTAINED FROM A POLICE SEARCH OF APPELLANT’S VEHICLE ON OR ABOUT AUGUST 4, 2010, WAS OBTAINED IN VIOLATION OF THE FOURTH AMENDMENT AND SHOULD HAVE BEEN SUPPRESSED.

Briefs will be filed under Rule 25.

The AFCCA’s decision is available here and reveals that the search of the appellant’s vehicle occurred after a police dog gave indications of contraband drugs within (marijuana and glass pipes were found).

Finally, CAAF summarily reversed convictions of aggravated assault and reckless endangerment – but affirmed a conviction of the lesser included offense of assault consummated by a battery – in a trailer case to United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. Feb. 23, 2015) (CAAFlog case page):

No. 15-0747/AR. U.S. v. Kenneth A.R. Pinkela. CCA 20120649. On consideration of Appellant’s petition for grant of review of the decision of the United States Army Court of Criminal Appeals, and in light of United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. 2015), we conclude that the evidence was legally insufficient to find beyond a reasonable doubt that Appellant committed the offenses of aggravated assault and reckless endangerment. We further conclude that the evidence was sufficient to affirm assault consummated by a battery as a lesser included offense of aggravated assault. Accordingly, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT TO FIND BEYOND A REASONABLE DOUBT THAT APPELLANT COMMITTED AGGRAVATED ASSAULT AND RECKLESS ENDANGERMENT IN VIOLATION OF ARTICLES 128 AND 134, UCMJ, BY ENGAGING IN UNPROTECTED SEX WHILE HIV-POSITIVE IN LIGHT OF UNITED STATES v. GUTIERREZ, 74 M.J. 61 (C.A.A.F. 2015).

The decision of the United States Army Court of Criminal Appeals as to Charges I and IV and their specifications and the sentence is reversed. The findings of guilty as to Charge IV and its specification are set aside and dismissed. The findings of guilty as to Charge I and its specification are affirmed only as to the lesser included offense of assault consummated by a battery. The remaining findings are affirmed. The record is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals to either reassess the sentence based on the affirmed findings or order a sentence rehearing.

A recent unpublished and per curiam decision by a three-judge panel of the Navy-Marine Corps CCA raises a serious concern: A military judge’s use of a prosecutors’ case tracking system.

On 9 October 2014, the appellant signed a PTA, agreeing to plead guilty to four specifications of possession and one specification of receipt of child pornography before a military judge. In return, the CA agreed to suspend any awarded confinement in excess of two years. While preparing for trial, the judge logged into Case Management System (CMS), the Navy’s online court-martial management database. Looking for confirmation of the appellant’s arraignment, the judge accessed a tab where court-martial milestone dates are recorded. While scanning that screen, the judge inadvertently stumbled upon a data entry he recognized as a PTA term capping confinement. The judge exited CMS and notified trial and defense counsel of the accidental disclosure via email.

United States v. Torres, No. 201500117, slip op. at 2 (N-M. Ct. Crim. App. Oct. 29, 2015) (link to slip op.) (emphases added). The appellant in Torres pleaded guilty to numerous offenses pursuant to a pretrial agreement, and then on appeal asserted that his trial defense counsel was ineffective for failing to thoroughly investigate the military judge’s actions or move for recusal. The CCA rejects the claim, finding neither deficient performance nor prejudice. But the opinion notes that:

the military judge invited voir dire from both counsel. TDC began his voir dire by apologizing that he had not seen the data entry at issue, because he did not have access to CMS. The record contains no indication that TDC requested access to CMS or a screen shot or printout of the entry. The judge recalled the CMS entry being five or six words announcing that parties had reached a PTA and the maximum sentence.

Slip op. at 2-3 (emphasis added).

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The Military Officers Association of America is hosting a Military to Civilian Success for Legal Professionals event on December 15, 2015, at the Ritz-Carlton, Pentagon City, 1250 S Hayes St, Arlington VA 22202:

While the broader economic recovery is underway, a lagging job market and excess real estate plague many metropolitan areas. Big law and government relations firms are adjusting to less work and constrained government spending. Accordingly, many once dependable job markets are sputtering. Judge Advocates preparing to depart military service need a focused program to expand their network and accelerate their transition from military service to civilian career success.

The workshop will focus on key aspects of a successful transition for military leaders, including:

• An expert panel of successfully transitioned legal professionals from a range of practice areas.
• Connections with legal recruiters.
• Networking strategies to accelerate your job search.
• Understanding the cultural and psychological aspects of career transition.

JAGs in Transition Seminar costs: $125
JAA Members: $99

Additionally, the Navy is hiring a Highly Qualified Expert for its Defense Counsel Assistance Program. The position announcement is available here.

In United States v. Benjamin, No. 20130092 (A. Ct. Crim. App. Oct. 29, 2015) (link to slip op.), a three-judge panel of the Army CCA finds that the appellant – a retirement-eligible Chief Warrant Office 3 who was convicted of forcible rape and adultery, and sentenced to confinement for ten years and total forfeitures but not a dismissal – was prejudiced by his military defense counsel’s (apparent) failure to properly submit a post-trial request for resignation for the good of the service (RFGOS) that could have resulted in the appellant’s release from post-trial confinement.

The appellant “contends he was denied effective assistance of counsel during the post-trial portion of his case because his trial defense counsel failed to properly submit a request for resignation to the convening authority following his conviction.” Slip op. at 2.

The CCA grants relief without making an explicit finding deficient performance by counsel:

Without reaching the ultimate issue of ineffective assistance of counsel, we conclude post-trial error and a colorable showing of possible prejudice have been sufficiently established. As a result, we set aside the action of the convening authority to provide appellant the requested opportunity to submit a resignation request to the Secretary of the Army through the convening authority.

Slip op. at 2. Interestingly, the CCA’s opinion notes that the appellant’s defense counsel did request “that the ‘Convening Authority disapprove the findings and sentence adjudged at the general court martial . . . and instead grant CW3 Wendell Benjamin’s request for resignation, conditioned on the disapproval of the findings and sentence.’” Slip op. at 3 (quoting clemency request). However,

The clemency submission did not specifically reference either AR 600-8-24 or AR 635-200 nor was the request for resignation submitted on the form or format required by controlling regulations. The convening authority did not formally recommend approval or disapproval of the “resignation request” nor was anything forwarded to the Secretary of the Army.

Slip op. at 3. The CCA concludes its decision by explaining that it “solely address[es] the appellant’s right to formally and properly submit a post-trial RFGOS request through the convening authority to the Secretary of the Army.” Slip op. at 6.

This week at SCOTUS: The motion to proceed as a veteran in Arness was denied by the Supreme Court. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking three cases:

• Katso v. United States, No. 14-5008 (pet. for cert. filed on Sept. 25; resp. due Dec. 2) (CAAFlog case page)
• Schloff v. United States, No. 15-0294 (ext. of time to pet. for cert. granted to Dec. 13) (CAAFlog case page)
• Arness v. United States, No. 14-8014 (mot. to proceed as vet. denied on Nov. 2) (CAAFlog case page)

This week at CAAF: The next scheduled oral argument at  CAAF is on November 17, 2015.

This week at the ACCA: The Army CCA will hear oral argument in two cases this week:

Monday, November 9, 2015, at 10 a.m.: United States v. Randall, No. 20130452

Issues:
I. Whether the military judge abused his discretion by failing to suppress Specialist Randall’s admissions because these admissions were made as a result of a coercive environment and Captain [MP] failed to read SPC Randall his Article 31 [UCMJ] rights. The military judge also failed to apply the proper objective standard of whether the questioning could reasonably be considered pursuant to an official law enforcement or disciplinary purpose.
II. Whether the evidence is legally and factually insufficient to support the findings that Specialist Randall unlawfully struck PWR and ELC on divers occasions.

Friday, November 13, 2015, at 2 p.m.: United State v. Ingle, No. 20121022

Issues:
I. Whether the evidence is factually and legally insufficient to support the findings of guilty, except the findings of guilty of Charge III and the Specifications thereunder and Specification 2 of Charge IV.
II. Whether the approved sentence to confinement for 20 years is inappropriately severe.

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 oral argument schedule shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on November 10, 2015, at 10 a.m. The oral argument will occur at the University of North Carolina, School of Law, Chapel Hill, NC:

United States v. Johnston

Case summary: A panel of members sitting as a general court-martial convicted the appellant, contrary to his pleas, of four specifications of committing a lewd act upon a child and one specification of indecent exposure in violation of Articles 120b and 120c, UCMJ, 10 U.S.C. §§ 920b and 920c. The members sentenced the appellant to reduction to E-1, forfeiture of all pay and allowances, confinement for eight months, and a badconduct discharge. The convening authority approved the sentence as adjudged.

Issues:
I. Whether the proscription of indecent exposure under Article 120c(c), UCMJ, is void for vagueness.
II. Whether Article 120c(c) violates the First Amendment overbreadth doctrine.

In a Government interlocutory appeal in United States v. Henning, No. 20150410 (A. Ct. Crim. App. Sep. 3, 2015) (link to slip op.), a three-judge panel of the Army CCA reverses a military judge’s ruling that suppressed DNA evidence in a sexual assault case. Specifically:

The alleged victim, SLN, reported that appellee raped her. [The appellee] denied any and all sexual contact with SLN. Genetic material was recovered from the underwear SLN wore the evening in question. The Kansas City Police Crime Laboratory (KCPCL) conducted deoxyribonucleic acid (DNA) testing on that genetic material. After testing and analysis, the KCPCL reported that [the appellee] could not be excluded as a potential minor contributor to the tested sample. Furthermore, the KCPCL is of the opinion that approximately 1 in 220 unrelated individuals in the general population would be a match to the minor contributor’s profile. [The appellee] was charged with the rape of, and other sexual crimes against, SLN.

Slip op. at 1-2. Additional notable facts include that the genetic material tested was “an exceedingly small quantity,” slip op. at 5, and that “according to KCPCL, the two other males present in SLN’s home on the night in question were both excluded after comparison to the DNA profile.” Slip op. at 2 n.3.

The defense moved to suppress any evidence about the DNA analysis on the basis that it “does not meet the requirements for expert testimony established by Military Rule of Evidence 702.” Slip op. at 2 (marks omitted). The military judge granted the motion, concluding in part that the formula that the laboratory used to draw conclusions about the DNA was not reliable, that the ensuing battle of the experts would create a trial-within-a-trial, and that:

9. “Using the 1 in 220 statistic, in a population as small as Weston, Missouri [the location of the alleged assault –ZDS] (1,641 in the 2010 census (citation omitted)), only 7 people could be contributors to the genetic material in Mrs. [SLN]’s underwear.”

10. Because the “Government is sure to point out that of those seven possible people, only one was in Mrs. [SLN]’s house, . . . the probative value is substantially outweighed by the danger of unfair prejudice, misleading the panel members, and waste of time.”

Slip op. at 6 (quoting military judge’s ruling) (all marks other than my notation are in original).

The Government appealed and the CCA reverses by concluding that some of the judge’s findings of fact (regarding the procedure used by the laboratory) were clearly erroneous and also that his conclusions of law were erroneous.
The CCA’s opinion might reach the right result, however it will likely have unintended consequences that will fuel some (unfair) criticisms of the military justice system.

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The Army CCA issued two interesting decisions on petitions for extraordinary relief in the Bergdahl case (complete coverage here). The first decision involves a petition by Sergeant Bergdahl (last discussed here) seeking a writ of mandamus that would permit the public release of the AR 15-6 investigation conducted by Major General Dahl into the circumstances of Sergeant Bergdahl’s capture. The CCA’s decision denying the writ states that:

Although not phrased as such, the relief petitioner seeks is for this court to countermand an order given by a military commander, in a circumstance where there is not yet—and may never be—a court-martial. This would be a broad view of this court’s jurisdiction.

. . .

Viewing [ABC, Inc. v. Powell, 47 M.J. 363 (C.A.A.F. 1997)] in light of [Clinton v. Goldsmith, 526 U.S. 529 (1999)], we reject the invitation to extend the jurisdiction of this court under the All Writs Act to the pre-referral matter raised in this writ.

Bergdahl v. Burke & the United States, No. 20150624, slip op. at 3 (A. Ct. Crim. App. Oct. 8, 2015) (link to slip op.). The CCA also concluded that even if it had jurisdiction, the petition failed to establish any right to relief.

The second decision involves a similar petition from Bergdahl and multiple media organizations, and the CCA again finds that it lacks jurisdiction:

The jurisdiction of this court to issue process under the All Writs Act is limited to issues having “the potential to directly affect the findings and sentence.” LRM v. Kastenberg, 72 M.J. 364, 368 (2013); 28 U.S.C. § 1651. This court does not have jurisdiction to oversee the administration of military justice generally. Clinton v. Goldsmith, 526 U.S. 529, 534 (1999). Petitioner has not demonstrated that the release of documents to the public, prior to any decision on whether this case should be referred to trial, has the potential to directly affect the findings and sentence.

Hearst Newspapers, LLC, et al., & Bergdahl v. Abrams, Burke, Visger & the United States, No. 20150652, slip op. at 2 (A. Ct. Crim. App. Oct. 14, 2015) (link to slip op.).

Writ-appeal petitions of both decisions have been filed at CAAF.

In a published opinion in United States v. Catano, No. 2015-04, __ M.J. __ (A.F. Ct. Crim. App. Oct. 14, 2015) (link to slip op.), a three-judge panel of the Air Force CCA denies a Government appeal of a military judge’s ruling that suppressed the accused’s statements to his first sergeant, additional statements made at a hospital, and the results of a probable cause urinalysis, because of the provisions of Air Force Instruction 44-121 that provide protections for an Airman who “voluntarily disclose[s] evidence of personal drug use or possession to the unit commander, first sergeant, substance use/misuse evaluator, or a military medical professional.” The accused in Catano made statement that included the admission: “I’m addicted to heroin.” Slip op. at 7.

The CCA finds that the military judge did not abuse her discretion in suppressing the evidence based upon the protections of AFI 44-121. Notably, the CCA’s decision includes consideration of the fact that after the military judge issued her initial ruling and the prosecution gave notice of its intent to appeal, the military judge:

issued a 6-page supplemental ruling that incorporated the entirety of her original ruling and added several findings of fact and conclusions of law. Her ultimate conclusion was unchanged.

Slip op. at 2. The Government asked the CCA to strike the supplemental ruling, asserting that “the automatic stay provision related to government appeals divested the military judge of jurisdiction over the court-martial once the notice of appeal was filed.” Slip op. at 2. But the CCA denied the motion and in its opinion it finds that a “military trial judge may sua sponte reconsider a ruling or order after notice of an Article 62, UCMJ, appeal and before the record of proceedings is authenticated.” Slip op. at 5.

Notably, in reaching this conclusion, the CCA describes the Government’s position in very harsh terms:

The Government expresses concern that the military judge amended her initial ruling in an effort “to strengthen her ruling with additional facts and analysis so that she would not be overturned.” Whether the changes found in the supplemental ruling favor the Government or Appellee is not the measure by which we determine the authority of the military judge to reconsider a prior ruling. We doubt the Government would object if the military judge had reconsidered her ruling and ruled in favor of the Government.

Slip op. at 6 (emphasis added).