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In a published opinion issued yesterday in United States v. Roller, __ M.J. __, No. 201600008 (N-M. Ct. Crim. App. Mar. 31, 2016) (link to slip op.), a three-judge panel of the Navy-Marine Corps CCA finds that the staff judge advocate’s recommendation contained “an affirmative misstatement of the law that effectively precluded the appellant’s opportunity to receive clemency.” Slip op. at 3.

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Specifically, the SJA improperly advised the convening authority about his power to act on the findings and sentence adjudged by the court-martial. The SJA wrongly claimed that the convening authority’s power to act on the findings and sentence was limited by the 2013 revision of Article 60(c).

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In United States v. Davis, 75 M.J. 537 (A. Ct. Crim. App. Nov. 25, 2015) (en banc) (discussed here), the Army CCA held that the failure of the defense to request an instruction on an affirmative defense (mistake of fact as to consent) forfeited the issue absent plain error.

Yesterday CAAF granted review:

No. 16-0306/AR. U.S. v. Joshua C. Davis. CCA 20130996. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, said petition is granted on the following issue:

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN REFUSING TO APPLY DE NOVO REVIEW FOR FAILURE TO INSTRUCT ON AN AFFIRMATIVE DEFENSE RAISED BY THE EVIDENCE, AND INSTEAD FOUND FORFEITURE AND APPLIED A PLAIN ERROR ANALYSIS, CONTRARY TO THIS COURT’S PRECEDENTS IN UNITED STATES v. TAYLOR, 26 M.J. 127 (C.M.A. 1988); UNITED STATES v. DAVIS, 53 M.J. 202 (C.A.A.F. 2000); AND UNITED STATES v. STANLEY, 71 M.J. 60 (C.A.A.F. 2012).

Briefs will be filed under Rule 25.

As the Army CCA’s site is still inaccessible to the public, the CCA’s slip op. is available here.

In United States v. Caldwell, No. 16-0091/AR (CAAFlog case page), CAAF is considering 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. The case is one of a handful this term that rely on the Supreme Court’s recent decision in Elonis v. United States, 135 S. Ct. 2001 (2015), to argue that the offense does not require a sufficiently culpable mens rea (mental state).

CAAF already decided two such cases: United States v. Gifford, 75 M.J. 140 (C.A.A.F. Mar. 8, 2016) (CAAFlog case page) (applying Elonis to conclude that the appellant must have acted with at least reckless disregard for the true age of the minors to whom he provided alcohol in order to be convicted of violating an order prohibiting such action), and United States v. Rapert, __ M.J. __ (C.A.A.F. Mar. 18, 2016) (CAAFlog case page) (holding that the element of wrongfulness in the Article 134 offense of communicating a threat, as specified by the President, requires adequate proof of an accused’s mens rea). In addition to Caldwell, I’m tracking one other such case (Goffe).

Yesterday the court granted review in a Caldwell trailer:

No. 16-0357/AR. U.S. v. Derick D. Granderson. CCA 20140178. 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:

WHETHER THE MILITARY JUDGE ERRONEOUSLY USED A NEGLIGENCE STANDARD TO FIND APPELLANT GUILTY OF MALTREATMENT UNDER ARTICLE 93, UCMJ.

No briefs will be filed under Rule 25.

CAAF will hear oral argument in the Marine Corps case of United States v. Martin, 15-0754/MC (CAAFlog case page), on Wednesday, April 6, 2016, at 9 a.m., at the Wood Auditorium at the Air Command and Staff College, Maxwell AFB, Alabama. The case presents two issues involving improper human lie detector testimony; the first specified by the court and the second certified by the Judge Advocate General of the Navy:

Specified issue: 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.

Certified 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 appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer and enlisted members, of one specification of wrongful sexual contact in violation of Article 120(m) (2006). The members sentenced him to reduction to E-1 and a bad-conduct discharge.

The appellant’s conviction arose from an alleged incident involving a female subordinate (identified as “CRI”) who was also the wife of another Marine. While CRI and her husband slept in a bed at a house party, the appellant allegedly entered the room and penetrated CRI’s vagina with his fingers. CRI awoke to this violation, “felt Appellant’s fingers inside her vagina,” and saw the appellant “kneeling on the floor next to the bed.” Gov’t Br. at 3. She didn’t move for “approximately three to five minutes,” and then rolled away from the appellant and unsuccessfully attempted to wake her husband. Gov’t Br. at 4. She then went to the bathroom and cried, and then returned to the bed and fell back asleep. Gov’t Br. at 4. CRI told her military mentor and her husband about the alleged incident within approximately one week of its occurrence, but no report to law enforcement was made until the mentor made a report approximately one year later. Gov’t Br. at 4-5. An investigation followed that report and the appellant was charged.

The appellant’s trial strategy was to attack CRI’s credibility and assert that her allegation was fabricated. This strategy was supported by the fact that CRI’s husband initially disbelieved her allegation, with the husband going so far as to initially believe that he was the one who touched her (if anyone had touched her). The husband testified at trial and was asked by both sides to opine about the truth of his wife’s allegation. He testified about his initial disbelief but that his opinion changed based on his wife’s conduct. Neither side objected to this improper human lie detector testimony, and the NMCCA found that it was plain error for the military judge to admit it. However, the CCA found no prejudice from this error based on four factors: (1) other testimony that CRI was an untruthful person; (2) the likely negligible impact of a husband’s testimony that he believes his wife; (3) the defense role in the error and failure to request a curative instruction, and; (4) the (standard form) instructions ultimately provided to the members. United States v. Martin, No. 201400315, slip op. at 9 (N-M. Ct. Crim. App. Jun. 18, 2015).

CAAF then granted review of the specified issue (questioning the CCA’s finding of harmlessness). The JAG subsequently certified the invited error issue; a certification that I discussed here as strange because the CCA’s opinion specifically noted the defense’s role in the husband’s improper commentary on the truthfulness of his wife’s allegation against the appellant.

The briefs suggest that next week’s oral argument will be lively. While the appellant largely focuses on the centrality of CRI’s credibility to the prosecution’s case, the Government disputes that the trial counsel elicited human lie detector testimony from the husband on direct examination. Instead, the Government makes the incredible assertion that the husband’s direct testimony about her wife’s conduct after the alleged assault was merely the husband’s admissible lay opinion that he could not have touched his wife on the night in question.

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CAAF will hear oral argument in the Air Force case of United States v. Harrell, No. 16-007/AF (CAAFlog case page), on Tuesday, April 5, 2016, at 12:15 p.m., at the University of Alabama School of Law. The court will consider the admission of the fruits of a search of the appellant’s vehicle by civilian police officers during a traffic stop, with 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.

The appellant is a First Lieutenant who – while pending court-martial for the wrongful use of marijuana – was stopped for speeding by a civilian police officer in Ohio. The stop occurred at 26 minutes after midnight. After obtaining the appellant’s information and returning to his police cruiser, the officer radioed for a canine unit. The appellant then exited her vehicle and the officer also exited the cruiser, they spoke, and the officer asked the appellant if she had any illegal drugs in her vehicle. The canine unit arrived soon after, and the dog indicated the presence of narcotics in the vehicle. A subsequent search discovered 1.8 grams of marijuana and two glass smoking pipes with marijuana residue. The appellant was arrested and later surrendered additional marijuana that she had on her person.

The appellant moved to suppress the fruits of the search of the vehicle at trial, asserting that the officer unlawfully prolonged the stop and that the canine was improperly allowed to enter the vehicle (by sticking its nose into an open window) as it walked around the vehicle. The military judge rejected both claims and denied the motion to suppress. The appellant was then allowed to enter conditional pleas of guilty to wrongful possession of marijuana and drug paraphernalia in violation of Articles 112a and 133, UCMJ.

The appellant renewed her claims at the Air Force CCA, where they were also rejected. CAAF then granted review.

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

• Katso v. United States, No. 14-5008 (pet. filed Sept. 25; resp. filed Feb. 26; pend. conf. Apr. 1) (CAAFlog case page)
• Sullivan v. United States, No. 15-0186 (resp. requested by Court, due Apr. 29) (CAAFlog case page)
• Akbar v. United States (ext. of time to file cert. granted to Apr. 7) (CAAFlog case page)

This week at CAAF: The next scheduled oral argument at CAAF is on April 5, 2016.

This week at the ACCA: The Army CCA’s website is still not accessible to the public (discussed here). I’m not aware of any scheduled oral arguments at the Army CCA.

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’s website shows no scheduled oral arguments.

The court martial of Army Master Sgt Omar Velez Pagan began in Fayetteville, NC reprots the Fayetteville Observer here.  The Master Sgt. is accused of murderimg his mistress while assigned as a geo-bachelor in Panama.

The WaPo editorial board weighs in on the Sgt. Bowe Bergdahl case, here. From the editorial:

We agree with those who say that Mr. Bergdahl’s conduct in leaving his unit was wrong, that it put lives at risk and that, despite his psychological issues, he should be accountable. At the same time, the Army may have contributed to this debacle by enlisting a soldier it shouldn’t have. And even without formal accountability, he has already suffered horribly for his actions.

In our view, the military justice system will pass this test to the extent it tempers judgment with due consideration of everything the case reveals about human frailty — and with mercy.

I am sure this will ignite comments, so please be mindful of the comments policy.

In a published decision in Chapman v. United States, __ M.J. __, No. 2014-16 (A.F. Ct. Crim. App. Feb. 18, 2016) (link to slip op.), a three-judge panel of the Air Force CCA finds that the court lacks jurisdiction to consider a petition for a writ of habeas corpus because the court-martial is final under Article 76. The decision is in harmony with a conclusion of the Army CCA in a capital case.

In 2002 the petitioner was sentenced to confinement for life with the possibility of parole for convictions of attempted premeditated murder, rape, sodomy, and burglary. The findings and sentence were affirmed and direct appellate review of the case is complete. United States v. Chapman, No. 35564 (A.F. Ct. Crim. App. 14 July 2006) (unpub. op)., aff’d, 65 M.J. 289 (C.A.A.F. 2007) (summary disp.), cert. denied, 552 U.S. 952 (2007).

Writing for the CCA, Senior Judge Fisher explains that:

We agree with our sister service court that military courts do not have jurisdiction over habeas corpus petitions when a court-martial has completed direct review under Article 71, UCMJ, and is final under Article 76, UCMJ. Gray v. Belcher, 70 M.J. 646, 647 (Army Ct. Crim. App. 2012); see also United States v. Denedo, 556 U.S. 904, 920 n.1 (2009) (Roberts, C.J., dissenting) (noting that the Supreme Court has never questioned that Article 76, UCMJ, limits the jurisdiction of military courts). *FN

We find additional support for this conclusion in the Supreme Court’s rationale when they concluded that military courts have jurisdiction over coram nobis petitions even after the proceedings are final under Article 76, UCMJ. Denedo, 556 U.S. at 916– 17. In doing so, they relied upon a coram nobis petition being an extension of the original proceeding. Denedo, at 912–13. Habeas corpus, conversely, is considered a separate civil case and record. See United States v. Morgan, 346 U.S. 502, 505 n.4 (1954). Consequently, a habeas corpus petition is not an extension of the direct appeal, and the rationale in Denedo does not apply to extend jurisdiction beyond the finality of Article 76, UCMJ.

 

*FN The Navy-Marine Corps Court of Criminal Appeals reached a different conclusion in Fisher v. Commander, 56 M.J. 691 (N-M. Ct. Crim. App. 2001). However, that court relied on Dew v. United States, 48 M.J. 639 (Army Ct. Crim. App. 1998), which was repudiated in United States v. Arness, 74 M.J. 441, 443 (C.A.A.F. 2015) [(CAAFlog case page)]. Because the underlying rationale has been rejected, we conclude Fisher is no longer persuasive authority on this issue.

Slip op. at 3.

In a pair of Federal Register notices available here and here, the JSC publishes its final proposed amendments to the MCM (initial proposal discussed here) and also publishes revised supplementary materials.

The proposed amendments make a number of changes that are relatively unsurprising considering recent caselaw.

The revised supplementary materials continue the positive trend (previously noted and discussed here) of the JSC independently publishing these non-binding materials. They include new Part IV discussion sections that state that bona fide suicide attempts should not be charged as criminal offenses (see United States v. Caldwell, 72 M.J. 137 (C.A.A.F. 2013) (CAAFlog case page)), and additions to the analysis of the Military Rules of Evidence that primarily identify which of the 2013 changes were merely stylistic (see my note here).

In light of some comments in the Bergdahl discussion thread that were brought to our attention, which have now been removed, we’d like to remind everyone of the comments policy on this little blog, here and here.  In particular, keep this eloquent summary from ODFL:

The Internet, of course, is a wide-open place and anyone can upload content on the Internet saying anything he or she pleases.  Heck, there’s even a website that devotes itself to, among other causes, attacking CAAFlog.  (I find it surprising that anyone cares enough about what we say in our little gabfest to go to the trouble, but the author certainly has the right to attack us.)  Anyone who wants to could set up a website to post anonymous personal attacks against military justice practitioners and judges.  But we at CAAFlog have no obligation to host such content.

Thanks for keeping it classy, San Diego.

Yesterday CAAF granted review of a Grostefon issue in an Army case:

No. 16-0301/AR. U.S. v. Luis G. Nieto. CCA 20150386.  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 granted on the following issue personally asserted by Appellant:

WHETHER THE MILITARY JUDGE ERRED IN DENYING APPELLANT’S MOTION TO SUPPRESS THE EVIDENCE SEIZED FROM APPELLANT’S LAPTOP COMPUTER.

Briefs will be filed under Rule 25.

(emphasis added). This is the second Grostefon issue granted this term, the first being in United States v. Caldwell, No. 16-0091/AR (CAAFlog case page).

The Army CCA’s website is still not publicly accessible, so I don’t have a link to the CCA’s opinion (assuming it wasn’t a summary disposition). I will post the opinion if someone with access will email it to [email protected]

Additionally, yesterday CAAF denied the latest writ-appeal from Sergant Bergdahl:

No. 16-0339/AR. Robert B. Bergdahl v. United States. CCA 20160073.  On consideration of Appellant’s writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on a petition for a writ of prohibition to stay the proceedings and Appellant’s motion for an order requiring Appellee to file and serve a transcript, it is ordered that said writ-appeal is denied and said motion is denied as moot.

This was the fourth trip to Judiciary Square by the Bergdahl defense team. The first, second, and third were all also unsuccessful.

CAAF decided the interlocutory Army case of United States v. Henning, __ M.J. __, No. 16-0026/AR (CAAFlog case page) (link to slip op.), on Monday, March 21, 2016. Directly reviewing the military judge’s ruling – without considering the opinion of the Army CCA that reversed the judge – CAAF concludes that the military judge did not abuse his discretion when he excluded DNA evidence. CAAF reverses the CCA’s decision, reinstates the military judge’s ruling, and lifts a stay of the trial proceedings.

Chief Judge Erdmann writes for a unanimous court.

The accused is charged with “waking the alleged victim by touching her breast, then wrongfully penetrating her vagina with his tongue before moving her to the floor and allegedly raping her.” Slip op. at 2. The DNA evidence at issue is from genetic material found in the alleged victim’s underwear that matches a sample from the accused but would also match a sample from approximately 1 in 220 unrelated individuals in the general population.

The DNA analysis was performed by the Kansas City Police Crime Laboratory using a modified version of the Scientific Working Group on DNA Analysis Methods (SWGDAM) guidelines. Further, beyond the modified analytical formula, the analysis involved a very small sample of genetic material consisting of “the equivalent to three or four human cells.” Slip op. at 5. According to a defense expert witness, “the slight amount of DNA analyzed was about one-fiftieth the amount recommended for a reliable result.” Slip op. at 4.

The defense challenged the admissibility of the DNA evidence and the military judge concluded that the results were unreliable and suppressed them. However, the Army CCA reversed after 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. CAAF then stayed the trial proceedings and granted review of a single issue:

Whether the Army Court applied the wrong standard of review to this Article 62, UCMJ, appeal when it found the military judge made erroneous findings of fact and erroneous conclusions of law.

Chief Judge Erdmann’s opinion for the unanimous court makes two key holdings.

First, despite the wording of the granted issue, Chief Judge Erdmann explains that in an Article 62 appeal CAAF reviews the military judge’s ruling directly, and he notes that “the CCA’s decision and analysis is not relevant to [that] review.” Slip op. at 7 n.13.

Second, considering the record and the military judge’s ruling, Chief Judge Erdmann finds no flaw in either the military judge’s findings of fact or his conclusions of law. Slip op. at 10. However, the court does not go so far as to actually agree with the military judge on the underlying question of reliability:

We do not hold that the KCPCL’s modified formula is unreliable. We only hold it was not an abuse of discretion for the military judge to find the government had not met its burden of showing the formula was reliable in this case.

Slip op. at 11 n.16.

Case Links:
• ACCA opinion
• Blog post: The Army CCA allows DNA evidence where “approximately 1 in 220 unrelated individuals in the general population would be a match”
• Appellant’s Brief (supplement to the petition for grant of review)
• Appellee’s (Government) Brief (answer to the petition)
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis

CAAF’s docket for last week has two interesting entries.

First, the court granted review of an Army case:

No. 16-0184/AR. U.S. v. Bradley T. Fontenelle. CCA 20140424. 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:

WHETHER THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUSTAIN A CONVICTION FOR THE SPECIFICATION OF THE ADDITIONAL CHARGE IN THAT APPELLANT’S COMMUNICATIONS DO NOT CONSTITUTE “INDECENT LANGUAGE.”

Briefs will be filed under Rule 25.

The Army CCA’s website is still not publicly accessible, so I don’t have a link to the CCA’s opinion (assuming it wasn’t a summary disposition). I will post the opinion if someone with access will email it to [email protected]

Next CAAF docketed a writ-appeal from what I assume is an alleged victim:

No. 16-0398/MC. EV, Appellant v. E.H. Robinson, Jr., Lieutenant Colonel, U.S. Marine Corps, Military Judge, Appellee and David A. Martinez, Real Party In Interest. Notice is hereby given that a writ-appeal petition for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals on application for extraordinary relief was filed under Rule 27(b) on this date.

The Bergdahl case (CAAFlog’s #8 military justice story of 2015) now has its own online repository of case-related documents called The Bergdahl Docket: bergdahldocket.wordpress.com

CAAFlog’s complete Bergdahl coverage is available at: www.caaflog.com/category/court-martial-news/sgt-bergdahl/

In an en banc published opinion in United States v. Hackler, __ M.J. __, No. 201400414 (N-M. Ct. Crim. App. Mar. 17, 2016) (link to slip op.), the NMCCA rejects an appellant’s Equal Protection challenge to the enumerated offense of adultery in violation of Article 134.

The appellant was convicted of adultery in connection with an alleged sexual assault of a fellow Marine. On appeal he challenged this conviction, asserting:

an “equal protection violation,” arguing that adultery charged under Article 134, UCMJ exposes service members in opposite-sex marriages to a harsher punishment than it does to those in a same-sex marriage. The appellant also asserts third party standing to challenge the statute on grounds that it “den[ies] homosexuals marriage on the same terms and conditions” as heterosexuals.

Hackler, slip op. at 8. The crux of the appellant’s argument was that “adultery does not apply to service members with same-sex spouses because the offense requires ‘sexual intercourse,’ which he claims is defined such that only members of the opposite sex may perform the act.” Slip op. at 9.

Writing for the court Senior Judge King explains that even assuming the appellant’s argument about the meaning of sexual intercourse is accurate (and the NMCCA’s opinion functionally does so), the mere fact that it is part of an enumerated offense under Article 134 does not mean that other types of sexual activity are not equally punishable under similar circumstances and with similar consequences. This strikes me as the only sensible result. So too the CCA, it seems, as the opinion is unanimous.

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