Wild Blue Yonder

The Navy and the Air Force post their unpublished opinions, other than summary dispositions, with both Westlaw and Lexis. A check of Westlaw and Lexis shows an interesting phenomena. The Navy cases get posted right away. The Air Force has posted several cases on their web site dated August 2007 but none appear on Westlaw or Lexis yet.

I know this is the summer, but let's get it going AF. You haven't posted any cases on your web site in the last two weeks. I know the judges must have been turning out some cases.

Of course, the Army web site is a disaster. They hardly post any cases there. They have posted only 2 unpublished opinions so far in August. Perhaps they are posted at Army Knowledge Online, that seems to be the way the Navy is doing it.

Don't you have some obligation to make them available on a public web site?

New Grant

In its Daily Journal for 28 August, CAAF announced a new petition grant:

07-0519/AR. U.S. v. Luis A. AGUILAR. CCA 20021439. Review granted on the following issue:

WHETHER, IN LIGHT OF CRAWFORD v. WASHINGTON, 541 U.S. 36 (2004), THE ARMY COURT OF CRIMINAL APPEALS COMMITTED REVERSIBLE LEGAL ERROR BY AFFIRMING THE ADMISSION OF TESTIMONY BY A SEXUAL ASSAULT NURSE EXAMINER, WHO SERVED AS A CONDUIT FOR THE INADMISSIBLE HEARSAY STATEMENTS OF AN ABSENT BUT AVAILABLE VICTIM.


This is another case in which I was unable to find the opinion of the CCA. Was it a summary disposition?

Preemptive Strike?

In United States v. Lacy, NMCCA 200600273 (N.M. Ct. Crim. App. Aug. 21, 2007), the prosecutor challenged the only African-American on the court panel. The defense objected.

The CCA's opinion refers to the Government's challenge to the member as a "preemptive strike" and a "preemptory challenge." The correct term is, of course, peremptory challenge. Preemptive relates to a military strike made so as to gain the advantage when an enemy strike is believed to be imminent. Peremptory means not allowing contradiction or refusal. In other words, a challenge that is granted without giving reason.

I was also struck by the analysis of that challenge.

Following a defense objection to the challenge, the Government factually cited to Petty Officer Riley’s prior legal experience, familiarity with the urinalysis collection program, and the fact that she had been a victim of a theft, identity fraud, and rape. Record at 253. The military judge observed that the reasons offered by the Government were justifications normally applicable to a defense preemptory challenge, but acknowledged that “some of the reasons” were valid, non-Batson type bases for challenge and overruled the defense objection. Id. at 257.

. . . .

In essence, trial counsel’s factual reasons simply cannot be “unreasonable, implausible, or otherwise make no sense.” United States v. Tulloch, 47 M.J. 283, 287 (C.A.A.F. 1997). The rationale must be something more factual than a simple assertion of good faith. Id. at 288.

. . . .

The appellant’s focus on the ultimate quality of the trial counsel’s rationale is misplaced. As we observed in Thomas, one doesn’t have to have a “good reason” for a preemptory challenge, only an honestly held non-racial reason. [United States v. ]Thomas, 40 M.J. [726,] 730[ (N.M.C.M.R. 1994)]. The trial judge had the opportunity to observe and listen to the trial counsel’s explanation. Ultimately, it is the sincerity of the trial counsel’s factual articulation rather than the quality of his rationale that is at issue.

Furthermore, as the defense contends, the judge never decided which if any of the proffered reasons was valid. I doubt this will play well at CAAF. Thomas is no longer the law and hasn't been for the past 10 years since Tulloch.

Sentence Reassessment

In two 25 August postings, CAAFlog has interesting discussions on Navy cases concerning sentence reassessment. United States v. Ryan, No. NMCCA 200401577, slip op. at 8 (N-M. Ct. Crim. App. March 29, 2007) and United States v. Bredschneider, __ M.J. ___, No. NMCCA 200700025 (N-M. Ct. Crim. App. Aug. 23, 2007). In the past CAAFlog has criticized the so-called Sales/Peoples standard. So has Sacramentum.

I think it is time we discuss not only what the standard is, but what it should be. But first, some history might be helpful.

We start with the habeas case of Chester Jackson. Jackson v. Taylor, 353 U.S. 569 (1957). Jackson was a soldier stationed in Korea who was convicted, with two others, of premeditated murder and attempted rape. He was sentenced to life in prison, as were his co-accused. The Army Board of Review found the murder convictions unsupported in law and fact, upheld the attempted rape convictions, and affirmed sentences that included confinement for 20 years, the maximum authorized for attempted rape. The Court of Military Appeals affirmed and all three filed habeas corpus petition in federal court. The three accused were confined in separate facilities in different states. The petitioner, Jackson claimed attacked “the sentence of the board alleging that 'the action of the Review Board in reserving twenty (20) years of the life sentence imposed by the Court-Martial for the crime of murder, even though it had reserved and set aside the conviction, was null and void.'” Id. at 571. The district and circuit court of appeals rejected Jackson’s claim, but one of his co-accused prevailed on the same issue in a different circuit. The Supreme Court granted certiorari to resolve the conflict on the “gross sentence” question.

Jackson’s argument went something like this: The law officer told the members that they could sentence the accused to death or life in prison. As he was sentenced to life in prison on the murder charge, he was not sentenced on the attempted rape. As the murder charge was dismissed, he should have a rehearing on the sentence or be released because the ABR did not have authority to sentence him. The Supreme Court affirmed the lower court’s denial of his petition.

Petitioner objects, however, that the board of review should not have imposed the maximum sentence for attempted rape because the court-martial might have imposed a lesser sentence had it considered the matter initially. But this is an objection that might properly be addressed to Congress. It has laid down the military law and it can take it away or restrict it. The Congress could have required a court-martial to enter a sentence on each separate offense just as is done in the civilian courts. The board of review would then know the attitude of the court-martial as to punishment on each of its findings of guilt. But this the Congress did not do. The argument, therefore, falls since it is based on pure conjecture. No one could say what sentence the court-martial would have imposed if it had found petitioner guilty only of attempted rape. But Congress avoided the necessity for conjecture and speculation by placing authority in the board of review to correct not only the findings as to guilt but the sentence as well. Likewise the apportionment of the sentence that the court-martial intended as between the offenses would be pure speculation. But because of the gross sentence procedure in military law we need not concern ourselves with these problems. Military law provides that one aggregate sentence must be imposed and the board of review may modify that sentence in the manner it finds appropriate. To say in this case that a gross sentence was not imposed is to shut one's eyes to the realities of military law and custom.

Finally the petitioner suggests that the case should be remanded for a rehearing before the court-martial on the question of the sentence. We find no authority in the Uniform Code for such a procedure and the petitioner points to none. The reason is, of course, that the Congress intended that the board of review should exercise this power. This is true because the nature of a court-martial proceeding makes it impractical and unfeasible to remand for the purpose of sentencing alone. Even petitioner admits that it would now, six years after the trial, be impractical to attempt to reconvene the court-martial that decided the case originally. A court-martial has neither continuity nor situs and often sits to hear only a single case. Because of the nature of military service, the members of a court-martial may be scattered throughout the world within a short time after a trial is concluded. Recognizing the impossibility of remand to the same court-martial, petitioner suggests as an alternative that the case should be remanded for a rehearing before a new court-martial. He admits that it would now be impractical for such a new court-martial to hear all of the evidence, and that the court would have to make its sentence determination on the basis of what it could learn from reading the record. Such a procedure would merely substitute one group of nonparticipants in the original trial for another. Congress thought the board of review could modify sentences when appropriate more expeditiously, more intelligently, and more fairly. Acting on a national basis the board of review can correct disparities in sentences and through its legally-trained personnel determine more appropriately the proper disposition to be made of the cases. Congress must have known of the problems inherent in rehearing and review proceedings for the procedures were adopted largely from prior law. It is not for us to question the judgment of the Congress in selecting the process it chose.

Id. at 578-80 (emphasis added) (footnotes and citations omitted).

Nearyly 30 years later, in United States v. Suzuki, 20 M.J. 248, 249 (C.M.A. 1985), Chief Judge Everett wrote the following:

However, when prejudicial error has occurred in a trial, not only must the Court of Military Review assure that the sentence is appropriate in relation to the affirmed findings of guilty, but also it must assure that the sentence is no greater than that which would have been imposed if the prejudicial error had not been committed. Only in this way can the requirements of Article 59(a), UCMJ, 10 U.S.C. § 859(a), be reconciled with the Code provisions that findings and sentence be rendered by the court-martial, see Articles 51-52, UCMJ, 10 U.S.C. §§ 851 and 852, respectively.

The following year, writing for Court, Chief Judge Everett said the following:

Although reassessment does not provide the accused an opportunity to be present or to offer new evidence in mitigation and extenuation, this procedure complies with constitutional requirements, see Jackson v. Taylor, 353 U.S. 569 (1957) and it has often been employed by Courts of Military Review without criticism from this Court. Of course, if the error at trial was one of constitutional magnitude, then it would seem necessary that the Court of Military Review should be persuaded beyond a reasonable doubt that its reassessment has rendered harmless any error affecting the sentence adjudged at trial. Cf. United States v. Ramai, 19 M.J. 229(C.M.A. 1985); see Chapman v. California, 386 U.S. 18 (1967).

United States v. Sales, 22 M.J. 305, 307 (C.M.A. 1986).

So there must be some ideas out there. Should every case in which the sentence needs to be reassessed be sent back to a trial court? Is that a good reason to go to judge alone sentencing? Should we just keep on with the Suzuki/Sales doctrine? Should we adopt the Jackson v. Taylor doctrine? Or is there some better idea out there?

Fox in the Henhouse

The Military Times website reports here that TSgt Jeffrey Carlson, the NCO in charge of the Air Force Academy's Alcohol and Drug Abuse Prevention and Treatment Program pled guilty to using ecstasy and soliciting another person to purchase drugs. The article claims he was sentenced to confinement for 24 months, total forfeitures, and reduction to E-1. It doesn't say whether he received a punitive discharge.

Missing Millions

The Military Times website is reporting the indictment of an Army Major and his wife in federal court on charges of bribery, conspiracy, money laundering and obstruction, for taking bribes from Defense Department contractors in 2004 and 2005. The indictment claims they took at least $9.6 million in bribes while Cockerham was stationed in Kuwait and responsible for contracts for Defense Department services, including bottled water for soldiers in Kuwait and Iraq.

Lt Col Jordan Revisited

On 20 August I reported that the military judge dismissed some of the most serious charges against Lt Col Jordan, alleging involvement in the Abu Ghraib scandal.

In today's Washington Post, Dana Millbank, somewhat of a loose cannon, announces another bad day for the prosecution. It is worth a quick read. Even the prosecution's witnesses claim Lt Col Jordan had nothing to do with the abuse of detainees. It appears he never saw any of the abuse either.

Dismissal of Charges

The GCMCA's order dismissing the charges against L/Cpl Justin Sharratt has been passed around in Navy-Marine Corps circles. Not knowing how to attach a document to a blog, and unable to copy and paste it into this document, I sent a copy off to Colonel Sullivan at CAAFlog for possible posting on his new website: caaflog.com.

The letter attached to the order addressed to L/Cpl Sharratt is very interesting. It is not an apology, but a reiteration of Marine Corps values and recognition of the difficult choices Marines are required to make in combat every day. It ends with the following:

"And as you have always remained cloaked in the presumption of innocence, with this dismissal of charges, you remain in the eyes of the law - and in my eyes - innocent."

I have to admit I have never seen anything like this before. Perhaps others have.

If Colonel Sullivan posts it on the web, it is worth reading the entire document.

Sentence Rehearing

The NMCCA returned the appellant’s case for a rehearing on the sentence. The appellant claims that the military judge erred in not finding that the Government’s failure to convene the rehearing within 120 days violated R.C.M. 707. The Government comes up with a rather brazen defense— “the novel procedures involved in accomplishing a sentence-only rehearing after more than 5 1/2 years since the original trial date, and not due to bad faith or neglect on their part.” Oh, so all the delays in the original case were not due to neglect. And what exactly is novel about a rehearing on sentence. It’s not as if they have to go looking for the record of trial. It was returned with the order to hold a rehearing. In defense of the Government, they did as the Navy-Marine Corps Appellate Review Activity for an extension and it was granted. Citing R.C.M. 707(c)(1), the NMCCA says that was error. Because the charge was still referred, the Government should have asked the military judge for the extension. That’s what the rule says, but I wonder if it was really meant to apply to rehearings when you have to go find the accused and bring him back on active duty etc.

Regardless, the NMCCA determines no relief is necessary for this dirtbag—he took nude photos of an 18-month old child. So his BCD stands. Not much of a sentence for a pervert.

United States v. Sorenson, NMCCA 200001969 (N.M.C.C.A. Aug. 9, 2007).

"Especially Troubling" Fine

The appellant was sentenced to a dismissal, confinement for 1 year, total forfeitures, and a fine of $10,000 after pleading guilty to two specifications of attempting to persuade or entice minors under the age of 16 to engage in sexual activity. The appellant claimed the fine was inappropriately severe in light of the total forfeitures, and violated the “Excessive Fines” clause of the Eighth Amendment to the Constitution. The NMCCA disagreed but granted relief anyway. It disapproved the fine.

The military judge advised the appellant that he could be sentenced to forfeitures and a fine, but his PTA just said that the convening authority could approve forfeitures or a fine as adjudged. The NMCCA concluded that this creates a “clear ambiguity" as to whether the convening authority was authorized to approve both forfeitures and a fine. The court goes on to say that the judge was required to get the accused to acknowledge that his financial liability could exceed total forfeitures. The NMCCA finds this “especially troubling” because of the ambiguity in the PTA. Despite how troubling this all is to the court, they find it does not make his plea involuntary.

Had the accused claimed he misunderstood or was misled, I might be sympathetic. But the accused never claimed that he misunderstood or was misled as to the maximum punishment. So how and to whom is it ambiguous. And in light of his confinement he was going to forfeit all of his pay and allowances by statute. I just don’t see the logic of this opinion.

United States v. Norman, NMCCA 200700042 (N.M.C.C.A. Aug. 8, 2007).

Seaman Mitchell--Panderer

Seaman Mitchell is one of the pillar's of the Navy. On a couple of occasions he tried to force his girlfriend to have sex with some of his shipmates while he watched. She refused. On one occasion, after she refused, he told her repeatedly that "she was 'going to do it' and 'tomorrow’s the day'. The next morning, DS testified that she approached SN Adhemar to have sex with her. She indicated that she just wanted to get it over with, so the appellant would not hound or hit her anymore. After acceding to the appellant’s demands to have sex with SN Adhemar, DS testified that the verbal abuse by the appellant increased significantly."

The appellant contended that his convictions for pandering and attempted pandering violated his constitutional right to privacy under the Supreme Court's decision in Lawrence v. Texas, which held unconstitutional a Texas statute that criminalized consensual sodomy between adults. The NMCCA took the issue seriously--and denied the claim.

United States v. Mitchell, NMCCA 200602365 (N.M.C.C.A. Aug. 7, 2007)

NMCCA Issues Opinions

Today the NMCCA released 15 opinions. Although this may have been discussed earlier on CAAFlog, the Navy-Marine Corps Court appears to have taken a page from Judge Crawford's book on how to fix the problems with SJARs and perhaps delays. At the top of their opinions, they are now including the name of the SJA who signed off on the SJAR and on the addendum. The other services might think of adopting the same tactic. That may give some SJAs an incentive to see that their cases are handled expeditiously.

Did they also change the font of their opinions? They used to be in courier, but now appear to be in courier new.

U.S. v. Haney

An essential element of the offense of carnal knowledge is that the person with whom the accused committed an act of sexual intercourse was not his or her spouse. Article 120(b)(1), UCMJ. The prosecutor in United States v. Haney, NMCCA 200600631 (N.M.C.C.A. Aug. 7, 2007), should be embarrassed that s/he never presented direct evidence of this fact. Lucky for him or her that the NMCCA was able to find substantial circumstantial evidence to overcome the prosecutor’s deficiency—the young lady was 15; lived at home with her mother who had never met the accused; Appellant referred to her as his girlfriend in his statement to investigators; and in his sworn statement said the acts of intercourse occurred while he was dating her.

The appellant also claimed the military judge should not have allowed the trial counsel to cross-examine defense witnesses about their association with the appellant. As the appellant failed to object at trial, the NMCCA correctly determined that plain error analysis is appropriate. It then declared that if the court finds plain error, the burden shifts to the Government to show that the error was harmless beyond a reasonable doubt. Citing United States v. Carter, 61 M.J. 30, 33 (C.A.A.F. 2005). But Carter was a case in which the trial counsel in sentencing argument commented on the failure of the accused to present evidence. That is a 5th amendment constitutional issue. The trial counsel’s questions in this case are not a constitutional issue, merely an evidentiary issue. Thus, the test the NMCCA should have used was whether the plain error was harmless, not harmless beyond a reasonable doubt.

New CAAF Grant

The Daily Journal for 17 August announced the following grant:

No. 07-0384/MC. U.S. v. Anthony T. HALL. CCA 200600805. Review granted on the following issues:

WHETHER THE LOWER COURT ERRED IN STATING THAT APPELLANT HAD RECEIVED A DISHONORABLE DISCHARGE AT TRIAL, WHEN THE MEMBERS SENTENCED HIM TO A BAD-CONDUCT DISCHARGE, AND THE CONVENING AUTHORITY APPROVED ONLY A BAD-CONDUCT DISCHARGE.

WHETHER THE LOWER COURT ERRED IN FINDING THAT THE MILITARY JUDGE'S DECISION TO ALLOW, OVER DEFENSE OBJECTION, A NONEXPERT NCIS AGENT TO PROVIDE EXPERT TESTIMONY TO THE MEMBERS WAS HARMLESS, WHERE THIS WAS IN VIOLATION OF MILITARY RULE OF EVIDENCE 701(c), AND THE GOVERNMENT HAS CONCEDED THAT THIS TESTIMONY WAS BOTH MATERIAL TO ITS CASE AND WAS OF HIGH QUALITY.

I was unable to find the lower court opinion.

Ooooops!

The New York Times reported today that a military judge dismissed two of the most serious charges against Army Lt. Col. Steven L. Jordan, the only officer charged with abusing detainees at Iraq's Abu Ghraib, after Maj Gen George Fay, the officer who investigated the scandal, told Army prosecutors that he had "misspoke" when he testified during the Article 32 investigation that he had advised Jordan of his rights during an interview in 2004. "In that 2004 interview, Jordan had told Fay he never saw detainees being abused and never saw nude detainees."


Wow! Now, after all that time, the General decides he didn't advise the guy of his rights? And "misspoke" is rather an interesting choice of words. If you misspeak, you correct it soon thereafter. So how is it that he waited all of this time to correct the error?

It looks like the general won't have to testify now.

CAAF Grants

As CAAFlog noted, this evening CAAF released its Daily Journal for Thursday, 16 August noting the granting of six petitions for review--2 of the cases are from the Coast Guard.

In United States v. Holbrook, No. 1251 (C.G.C.C.A. Jan. 10, 2007), the accused was convicted of fraudulent enlistment in violation of Article 83, UCMJ. CAAF granted on the following issue:

No. 07-0350/CG. U.S. v. Tom K. HOLBROOK. CCA 1251. Review granted on the following issue:

WHETHER APPELLANT'S PLEA TO FRAUDULENT ENLISTMENT (CHARGE I) WAS IMPROVIDENT BECAUSE THE MILITARY JUDGE FAILED TO ELICIT FACTS SUFFICIENT TO ESTABLISH THAT APPELLANT KNEW HE LIED ABOUT A MATERIAL FACT RELEVANT TO HIS QUALIFICATIONS FOR ENLISTMENT.

He raised the same issue before the CCA. He is claiming that the military judge was required to get him to admit that he knew the lies he told the recruiter were material when he made them--"at the time he knowingly made false statements to the recruiter, Appellant was not certain that truthful answers would prevent him from enlisting."

The element of the offense in question reads as follows:

That the accused knowingly misrepresented or deliberately concealed a certain material fact or facts regarding qualifications of the accused for enlistment or appointment.

Its hard to believe that any judge would believe that this element requires that the accused know he is lying about a material fact. The accused just has to know he is lying. For the plea to be provident, an accused must acknowledge that the false information he provided to the recruiter was material--would have affected the decision to approve his enlistment or would have changed how his enlistment was handled (perhaps more investigation or requiring a waiver)--but there is no requirement that the accused know the information is material at the time he makes the false statements.

As CAAFlog would say: EGAD!

Another CAAF Grant

The Daily Journal for 15 August contains the following grant:

No. 07-0597/AF. U.S. v. Manuela Del Carmen SCOTT. CCA 36514. Review granted on the following issue:

WHETHER THE ADDENDUM TO THE STAFF JUDGE ADVOCATE'S RECOMMENDATION CONTAINS "NEW MATTER" NOT PROVIDED TO DEFENSE COUNSEL FOR COMMENT, NECESSITATING A NEW CONVENING AUTHORITY ACTION IN THIS CASE.

The AFCCA's opinion in this case can be found here.

That opinion is not of any help as it summarily--in one sentence--disposes of the issue.

Trailer Cases Docketed

In the Daily Journal for 14 August, the CAAF reported the following two cases were docketed:

No. 06-0906/AF. U.S. v. Samir S. CHRISTIAN. CCA 35905. Review granted on the following issues:

WHETHER APPELLANT'S CONVICTION FOR VIOLATING ARTICLE 125, UCMJ, BY ENGAGING IN SODOMY WITH RJM MUST BE SET ASIDE IN LIGHT OF LAWRENCE v. TEXAS, 539 U.S. 558 (2003), AND UNITED STATES v. ZACHARY, 63 M.J. 438 (C.A.A.F. 2006).

WHETHER APPELLANT'S GUILTY PLEA TO SPECIFICATION 2 OF CHARGE III WAS IMPROVIDENT BECAUSE THE MISTAKE OF FACT DEFENSE APPLIES TO THE OFFENSE OF KNOWINGLY VIDEOTAPING A MINOR ENGAGED IN ORAL SODOMY.

No briefs will be filed under Rule 25.

No. 06-0932/NA. U.S. v. Javan R. GAINOUS. CCA 200300953. Review granted on the following issues specified by the Court:

WHETHER THE DICTA IN UNITED STATES v. ZACHARY, 63 M.J. 438, 442 (C.A.A.F. 2006), INDICATING THAT THE DEFENSE OF MISTAKE OF FACT AS TO AGE IS A DEFENSE FOR THE CRIME OF SODOMY WITH A CHILD, OVERRULED UNITED STATES v. STRODE, 43 M.J. 29, 31 (C.A.A.F. 1995) (STATING THAT DEFENSE OF MISTAKE OF FACT AS TO AGE WAS NOT AVAILABLE TO STRICT LIABILITY OFFENSE OF SODOMY).

IF MISTAKE OF FACT AS TO AGE IS A DEFENSE FOR THE OFFENSE OF SODOMY WITH A CHILD, WHETHER APPELLANT'S GUILTY PLEA TO THAT OFFENSE WAS PROVIDENT.

No briefs will be filed under Rule 25.

These appear to be trailer cases to United States v. Wilson, No. 06-0870/AR. Wilson case was previously argued on April 30, 2007. Additional briefs were ordered on the issue of whether the defense of mistake of fact as to age is available with respect to a charge of sodomy with a child under the age of 16 under Article 125, UCMJ.

As you probably will recall, Zachary was the case in which a unanimous court held that mistake of fact as to age was a defense to indecent acts with a minor--the LIO of carnal knowledge. But in the court's opinion, Chief Judge Gierke said that the mistake of fact as to age defense also applied to sodomy. The pronouncement was clearly dictum and now hopefully CAAF will say so. I am not sure why they did not decide this case last term.

Mil. R. Evid. 413, 414

Sacramentum has prevailed upon me to join this blog. I will be adding my two-cents worth from time to time, and will be in charge the next week or so while Sacramentum is unavailable--something about a week at the beach to recharge the old batteries. As this is a slow time for CAAF and some of the CCAs, it will give me a chance to get used to this blogging program.

The first issue I want to discuss is one that has been covered in the past to some degree--Mil. R. Evid. 413 and 414 as raised, or not, in a recent NMCCA case, United States v. Rodriguez, NMCCA 200602455 (N.M.C.C.A. Jul. 18, 2007).

Rodriguez was charged with 2 rapes, one in May and the other in October 2005. In each case, the appellant and the victim had engaged in consensual sexual intercourse in his barracks room before the rape. He appealed the military judge's denial of his motion to sever. The NMCCA stated:

Our superior court has summarized the law on severance of charges as follows:

The military justice system encourages the joinder of all known offenses at one trial ([RULE FOR COURTS-MARTIAL 601(e)(2), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2002 ed.)]), and permits a motion for "severance of offenses . . . only to prevent manifest injustice." R.C.M. 906(b)(10). "In general, 'an abuse of discretion will be found only where the defendant is able to show that the denial of a severance caused him actual prejudice in that it prevented him from receiving a fair trial; it is not enough that separate trials may have provided him with a better opportunity for an acquittal.'" [Citations omitted].

To determine whether a military judge has failed to prevent a manifest injustice and denied an appellant a fair trial, we apply the three-prong test found in United States v. Southworth, 50 M.J. 74, 76 ([C.A.A.F.] 1999).

United States v. Simpson, 56 M.J. 462, 464 (C.A.A.F. 2002).

The three-prong test is as follows: (1) whether the evidence of one offense would be admissible proof of the other; (2) whether the military judge has provided a proper limiting instruction; and (3) whether the findings reflect an impermissible crossover. Southworth, 50 M.J. at 76.

When the military judge applied the test a trial, he ruled that one offense would be admissible proof of another under Mil. R. Evid. 404(b) "to refute affirmative defenses of consent/mistake of fact" and as substantive evidence of the other rape pursuant to Mil. R. Evid. 413. But the judge did not allow evidence of one rape to be used to prove the other rape or to refute any defense," the Govt kept the evidence of one rape separate from that of the other, and the judge gave a spillover instruction between evidence of the first offense and evidence of the second--"Proof of one offense carries with it no inference that the guilt – - the accused is guilty of any other offense."

The NMCCA says: "Assuming, without deciding, that evidence of one offense would not be admissible proof of one or more of the other offenses, we conclude that the second and third prongs clearly weigh in favor of the military judge's ruling."

I find two things troubling here. I don't believe the judge should have given the spillover instruction that he gave. Mil. R. Evid. 413 says that the court can consider evidence of a sexual assault "for its bearing on any matter to which it is relevant." While the court members must not convict an accused of one rape just because they believe he committed another, they can consider it to show that he has a propensity to commit such offenses. Thus, the likelihood that he committed one rape is increased because of the evidence that he committed the other. The judge's spillover instruction was overly protective of the accused.

It is also peculiar that the NMCCA took such a weak position on the first prong. The court could have said that the evidence may be used to show an accused has a propensity for committing such acts, and even if not, the other 2 Southworth factors outweighed the first and so the judge did not err in declining to sever.

The NMCCA did not cite to or discuss the CAAF's most recent case on this issue. United States v. Schroder, No. 06-0657 (C.A.A.F. May 31, 2007). Although that case applied Mil. R. Evid. 414, it is essentially the same as 413, except it applies to molestation of children.

Post-Trial Delays

Today, the Navy-Marine Corps Court posted 13 cases, that were issued between 17 and 31 July, to its public website. Most, if not all of these cases have been available on NKO for some time.

In United States v. Wiest, No. 200700024 (N.M. Ct. Crim. App. Jul. 31, 2007), the NMCCA was faced with a case that had taken 2,734 days (about 90 months, or 7 1/2 years) from announcement of sentence until docketing at the court. That's right, docketing, not decision by the AFCCA. The sentence was adjudged on 2 August 1999. From sentence announcement to decision was two days short of 8 years.

A military judge sitting as a general court-martial convicted the appellant, pursuant to his pleas, of thirteen specifications of larceny and three specifications of forgery, in violation of Articles 121 and 123, Uniform Code of Military Justice, 10 U.S.C. §§ 921 and 923. The appellant was sentenced to confinement for thirty months, forfeiture of all pay and allowances, reduction to pay grade E-1, and a dishonorable discharge.

The court first examines the appellant's sentence and determines it is not unduly severe and in fact "richly warranted." The court explains its decision by quoting United States v. Usry, 9 M.J. 701, 703 (N.C.M.R. 1980) (internal citation omitted.

Larceny is commonly recognized at common law as a serious felony crime. . . . Larceny crimes strike at the very heart of society's ability to exist as a community, and this is certainly no less important in a military community. It is commonly recognized that the crime of larceny against a fellow service member takes on even more significance in the military community where the very lives of men at arms often rest upon the complete trust and confidence of their fellow combatants. This trust is emphasized and nurtured in the United States Marine Corps from a Marine's first experiences in bootcamp and throughout his Marine Corps career. Basic to this philosophy is an expectation that your batterymate will not steal from you.

The court then examines the claim of post-trial and appellate delay. It finds the 7 1/2 years to be facially unreasonable and then examines the Barker v. Wingo factors. The NMCCA finds the length of the delay and the reasons for the delay favor the appellant. But the appellant apparently did not complain until he filed his appellate brief and there is no evidence the appellant suffered any prejudice. After balancing the factors, the court concluded there was no due process violation.

And finally, the court considers whether it should exercise its Article 66(c) power to reassess the sentence to give the appellant some relief. The court states that the only meaningful relief available for them to give is to disapproved the DD. They refuse to do that because it "would be an undeserved windfall for the appellant and disproportionate to any possible harm the appellant suffered as a result of the post-trial delay."

In United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006), the CAAF stated that: Absent prejudice, this Court "will find a due process violation only when, in balancing the three other factors, the delay is so egregious that it would adversely affect the public’s perception of the fairness and integrity of the military justice system.” Isn't 7 1/2 years so egregious that it adversely affects the public's perception of the fairness and integrity of the military justice system? But what the CAAF giveth in one hand it taketh away with the other. If there is a violation of due process then you look to see if the violation was harmless beyond a reasonable doubt. United States v. Allison, 63 M.J. 365, 370-71 (C.A.A.F. 2006). Thus, you seem to be back to the question of prejudice

Although I think the CAAF's heart may have been in the right place in trying to force the military to get accuseds the expeditious post-trial and appellate review of their cases they deserve, I believe the court's resolution of the problem is not well thought out.

Article 59(a) states that: "A finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused." How can CAAF suggest that relief is necessary if there is no prejudice. And if there is such a thing as a due process violation if the delay is so egregious it affects the perception of the military justice system, how can a court grant relief when affecting the perception of military justice does not necessarily materially prejudice the substantial rights of the accused."

I also think the situation may be exacerbated by Article 58a and 58b. Article 58a provides that "Unless otherwise provided in regulations to be prescribed by the Secretary concerned, a court-martial sentence of an enlisted member in a pay grade above E-1, as approved by the convening authority, that includes" a punitive discharge, confinement or hard labor without confinement automatically reduces that member to pay grade E-1, effective on the date of that approval. Article 58b provides among other things that a sentence to more than 6 months confinement leads to automatic forfeiture of pay.

Although the NMCCA did not explain why the only meaningful relief would be disapproval of the DD, I take it that it stems from the Article 58a automatic reduction to E-1 and the Article 58b automatic forfeitures. Otherwise, I see no reason the court could not have crafted some relief by disapproving some or all of the forfeitures and some or all of the appellant's reduction in grade. Is there some case or rule that says the CCAs can't mess with automatic reduction or forfeitures?

I believe the delay in Lance Corporal Wiest's case is egregious and outrageous and he deserves some relief. But I don't see how CAAF can order a remedy under the statutory authority under which it operates. Fixing this problem needs congressional action.

Colonel Murphy's Petition

Previous posts noted that Colonel Murphy had petitioned the AFCCA for extraordinary relief in the form of a writ of mandamus, that it had been denied, and a writ-appeal to the CAAF had also been denied. Some Air Force sources had suggested that Colonel Murphy wanted to disqualify the Article 32 investigating officer and all Air Force officers from conducting the investigation. I also complained that the AFCCA opinion was not posted on the AFCCA website when they post all of their opinions, even one-line opinions affirming a merits case.

Today, former Judge Mathews reported that the 13 July AFCCA opinion is now available on the AFCCA website. Thanks, Judge Mathews.

It seems my earlier post reported only part of the story. Colonel Murphy asked the AFCCA to (1) order the Article 32 IO to recuse himself and order the Air Force to appoint a non-Air Force officer to conduct the Article 32; and (2) following action on the petition, for the AFCCA to recuse itself from further participation in his case.

The AFCCA decided it had jurisdiction to consider the petition based on San Antonio Express-News v. Morrow, 44 M.J. 706, 709 (A.F. Ct. Crim. App. 1996). It is interesting that the AFCCA did not feel it necessary to discuss Clinton v. Goldsmith, 526 U.S. 529 (1999), which was decided after San Antonio Express-News. Although that case concerned the jurisdiction of the CAAF, the opinion discussed the limited nature of All Writs jurisdiction for Article I courts. It seems to me that the CCA's are somewhat similarly situated to the CAAF in terms of their jurisdiction. Regardless of what the AFCCA decided, I would have expected the opinion to have at least mentioned the case.

In the AFCCA opinion, there is no discussion of why Colonel Murphy believes the Article 32 officer should recuse himself and a non-AF officer should be appointed to conduct the investigation or why the AFCCA should recuse itself. It is most likely some sort of institutional bias against him, but I am not sure. Regardless, the AFCCA denied the petition

All in all, a pretty disappointing opinion from the AFCCA. In all fairness, the court was probably under the gun to try to get the opinion out without delaying the Articlee 32 investigation.

On the Road Again

The CAAF has announced the first two Project Outreach oral arguments for this term.

Project Outreach -- October 24 -- Indiana University School of Law, Indianapolis, Indiana

Wednesday, October 24, 2007

Time TBD: United States v. Walter S. Stevenson, No. 06-0934/NA
(Appellee) (Appellant)

Counsel for Appellant: LCDR M.E. Eversole, JAGC, USN
Counsel for Appellee: Major Wilbur Lee, USMC

Case Summary: GCM conviction of rape. Granted issues concern whether Naval Criminal Investigative Service and Veterans Affairs personnel violated Appellant’s 4th Amendment rights by seizing his blood without a warrant or probable cause, and if so, whether the Court of Criminal Appeals erred in failing to address or suppress blood/DNA evidence gained by a search warrant issued on tainted evidence and material misrepresentations.

NOTE: This case will be heard as part of the Court’s “Project Outreach” program at Indiana University School of Law-Indianapolis, Indiana.



Project Outreach -- October 25 -- Indiana University School of Law, Bloomington, Indiana

Thursday, October 25, 2007

Time TBD: United States v. Daniel Pack, No. 07-0085/MC
(Appellee) (Appellant)

Counsel for Appellant: LT Kathleen L. Kadlec, JAGC, USN
Counsel for Appellee: Capt Roger E. Mattioli, USMC

Case Summary: GCM conviction for indecent acts with a minor. Granted issue is whether Appellant was denied his right to confrontation in light of Crawford v. Washington when the military judge permitted the alleged victim to testify from a remote location via one-way closed circuit television.

NOTE: This case will be heard as part of the Court’s “Project Outreach” program at Indiana University School of Law-Bloomington, Indiana

Delay in Authenticating ROT

In United States v. Arindain, the appellant complained of post-trial delay--it took 404 days from the date of sentence until the action of the convening authority, over 260 days of which were waiting for the military judge to authenticate a record of trial over 1,600 pages long. The appellant was convicted of unpremeditated murder and was sentenced to life in prison.

The AFCCA correctly noted in n.6 that the Moreno presumption of unreasonable delay if the convening authority fails to act on the case within 120 days of the sentence did not apply to the appellant's case--it only applies to courts-martial completed on or after 10 June 2006. Nevertheless, the court cites the presumption, claims that the 404-day delay certainly raises the presumption, and thus the court has to apply the Barker v. Wingo factors. As the appellant's court-martial was completed before 10 June 2006, the AFCCA should have determined if the delay was "facially unreasonable," before applying the Barker v. Wingo factors. While they may have gotten to the same place, it is important to apply the rules correctly.

After applying the factors, the AFCCA determined that the appellant did not suffer any due process violation in the post-trial processing of his case. The appellant was unable to show any prejudice and, like the AFCCA, I would not grant him any relief. This is a guy who killed the mother of his child and left her body face down in a muddy ditch. Nevertheless, I find it troubling that the judge took 260 days to authenticate the record. The AFCCA notes that the judge was the factfinder, was the chief judge of that judicial circuit, and no doubt had other duties. It cites to the CAAF's decision in Moreno expressing unease with setting a timetable for the deliberative process of the NMCCA. But there is no deliberative process in authenticating an ROT. It should be just reading the record to determine if the court reporter got it right. If corrections had to be made, that would have been noted in the record. Furthermore, the AFCCA acts as if authenticating the record is some kind of lesser duty that is not as important as trying cases or doing whatever chief circuit judges do.

Certainly a military judge could be on leave when the transcript is completed or be in the midst of another case that would justify some delay in authenticating a 1,600 page record. But taking almost 9 months to authenticate an ROT should not be acceptable. Without more, I cannot see how the AFCCA could find the delay in authenticating the ROT "not unreasonable."

AFCCA Posts 33 Opinions

This past week, the AFCCA posted to its website 33 cases it had issued in the previous 3 weeks. Why do they hold the cases for 3 weeks before posting them. Is the staff that busy that they can't be posted once a week?

Of the 33 cases, 2 are published decisions that have already been discussed in CAAFlog. Of the remaining 31 opinions, 14 are merits cases. Of the 17 remaining unpublished decisions, only a few are worth commenting on, which I will do in the next couple of posts.



Be forewarned. The AFCCA opinions now include the signature of the court clerk and the seal of the court. This means they take considerably longer to download, and it is difficult to use the text tool to copy sections of the opinion.

Colonel Murphy at the AFCCA

It now seems apparent that the Air Force Court of Criminal Appeals is purposely suppressing the posting of its opinion in Colonel Murphy's petition for extraordinary relief against the convening authority and the Article 32 investigating officer. It is now several days after CAAF released notification that it had denied the writ-appeal, and several weeks after the writ-appeal was filed at CAAF, and the AFCCA still has not posted its opinion.

In an earlier comment to a posting on CAAFlog, former Air Force Appellate Judge Christopher Mathews noted that not all orders or extraordinary writ decisions are posted on the AFCCA website. Accepting that as true, we still must presume that the AFCCA makes informed choices about which opinions to post and which ones not to post. After all, the AFCCA posts all manner of decisions, including published, unpublished, decisions on writs (Misc. Dkt.), and even cases submitted to the court without assignment of error (Merits) in which the court regularly affirms with a 1 or 2 sentence pro forma opinion. Furthermore, although he didn't fully explain, CAAFlog--a man of not inconsiderable resources--"swung and missed at trying to get information about the writ."

Therefore, I conclude the failure of the opinion to appear on the AFCCA website is purposeful. It may not be surprising in light of the Air Force's prior dealings with JAGs who are accused of wrongdoing.

Army Released 3 Opinions

On 31 July, the Army Court of Criminal Appeals released 3 opinions:

United States v. Eckard, 20010870 (A. Ct. Crim. App. Jul. 31, 2007)
United States v. Callaway, 20050268 (A. Ct. Crim. App. Jul. 31, 2007)
United States v. O'Reilly, 20050681 (A. Ct. Crim. App. Jul. 31, 2007)

Eckard involved the testimony of a DNA tech at USACIL who was accused of contaminating specimens and misrepresenting tests that he had not performed. In this case, the ACCA determined that the evidence was so overwhelming that the admission of Mr. Mills testimony was harmless.

Callaway is not a pretty case. The judge sentenced the accused to forfeiture of 2/3 pay for 10 months. Now I realize that it if a judge is not really concentrating when he/she announces the sentence and the trial counsel is not paying attention, it is not difficult to forget to say "per month." But one would certainly expect that the judge's training would have covered the need to announce forfeitures in whole dollar amounts. R.C.M. 1003(b)(2). Yet every few years we have a crop of such cases.

Although neither Article 34, UCMJ, nor R.C.M. 406 requires the SJA prepare an SJAR for a case that is referred to special court, an Army Regulation does. But the SJA didn't do one in this case. Nevertheless, the ACCA affirmed. The issue is procedural not jurisdictional, the appellant made no motion at trial, waived the issued by pleading guilty.

By the way, the military judge also forgot to assemble the court. Case must have been tried on a Monday.

In O'Reilly, the military judge refused to admit an Article 15 during the sentencing proceedings because it was not properly authenticated. But the judge then allowed the prosecution to present the testimony of the first sergeant and the commander that the appellant had received an Article 15 for missing a movement, and that occurred after he failed to go on 15 different occasions. ACCA found error--Article 15s are admissible at part of his records. Uncharged misconduct unrelated to the offense of which the accused was convicted was not admissible as aggravation evidence--it did not meet the “directly relating to or resulting from” requirement to be admissible under R.C.M. 1001(b)(4). Same for the admission of results of a positive urinalysis. ACCA loped off 1 month of the 4 month confinement sentence.

CAAF Oral Argument Schedule

Today, the CAAF released the following addition to the oral argument schedule.

Tuesday, November 27, 2007

9:00 a.m.: United States v. John R. Larson, No. 07-0263/AF

Counsel for Appellant: Capt Timothy M. Cox, USAF

Counsel for Appellee: Capt Jamie L. Mendelson, USAF

Case Summary: GCM conviction of attempted carnal knowledge, attempted indecent acts, misuse of a government computer, indecent language, and using a facility to entice a minor to engage in sexual activity. Granted issues are: whether the AFCCA erred in holding that Appellant had no reasonable expectation of privacy in his government computer despite the Court’s holding in United States v. Long, 64 M.J. 57 (C.A.A.F. 2006); and whether Appellant was denied the effective assistance of counsel when civilian counsel conceded Appellant’s guilt in his opening statement, during findings, and again in closing argument.