Week in Review

Ninth Circuit Court of Appeals

Erickson v. Blanckensee, No. 19-16165, 2021 U.S. App. LEXIS 34289 (9th Cir. Nov. 18, 2021) .

Kelly Erickson appeals pro se from the district court's order denying his 28 U.S.C. § 2241 habeas petition. 

Erickson's first contention is that the military did not have jurisdiction to court-martial him for any military offenses committed prior to his enlistment in the U.S. Air Force on August 29, 2001. Although Erickson was enlisted in the U.S. Army from January 22, 1993, to June 13, 2001, he argues that his separation from that service permanently severed all military jurisdiction for any offenses alleged to have occurred during his time in the Army.

​To the extent that Erickson argues § 803(a) is unconstitutional as applied to him, this argument is without merit. Congress is empowered to pass legislation, such as § 803(a), providing "for the Government and Regulation of the land and naval Forces." U.S. Const. art. I, § 8, cl. 14. See also Kinsella v. United States ex. rel Singleton, 361 U.S. 234, 236-37 (1960). And the chief case upon which Erickson relies, United States ex. rel. Hirshberg v. Cooke, 336 U.S. 210 (1949), does not apply because of the 1992 amendments to § 803(a). See Willenbring v. Neurauter, 48 M.J. 152, 161 (C.A.A.F. 1998) (observing that § 803(a) "close[d] the loophole left by Hirshberg when there is a break in military service"), overruled on other grounds by United States v. Mangahas, 77 M.J. 220 (C.A.A.F. 2018).
(Redacted.)

Prior history:

United States v. Erickson, 63 M.J. 504 (A.F. Ct. Crim. App. 2006) aff'd 65 M.J. 221 (C.A.A.F. 2007) cert. denied Erickson v. United States, 552 U.S. 952 (2007). A GP case in which the MJ sentenced him to Life w/poss. of parole.

​The appellant initially asserted four errors for our consideration: (1) sentence is inappropriately severe; (2) ineffective assistance of counsel because his trial defense counsel erroneously advised him that he would be eligible for parole in 10 years so he rejected a pretrial agreement (PTA) that would have limited his confinement to 38 years; (3) MJ erred by admitting uncharged misconduct; and (4) trial counsel improperly compared him to Osama Bin Laden, Adolph Hitler, and the Devil during his sentencing argument. In a supplemental filing, the appellant raised four additional errors: (1) pleas were improvident because of his mental and emotional state at trial; (2) the court-martial lacked jurisdiction to try him because Article 3(a), UCMJ, 10 U.S.C. § 803(a), is unconstitutional as applied; (3) his plea to Charge I and its Specification was improvident; and (4) his plea to Charge IV, Specification 5 was improvident.

63 M.J.  at 505.

Following military court proceedings, a federal court may only grant a writ of habeas corpus to "guard against the military courts exceeding their jurisdiction, and to vindicate constitutional rights." Broussard v. Patton, 466 F.2d 816, 818 (9th Cir. 1972) (citations omitted). Review of habeas proceedings "involving military convictions is limited to determining whether the court-martial had jurisdiction of the person accused and the offense charged and whether it acted within its lawful powers." Id. at 818 (citing Sunday v. Madigan, 301 F.2d 871 (9th Cir. 1962)). "[O]nce it has been concluded by the civil courts that the military had jurisdiction and dealt fully and fairly with all such claims, it is not open to such courts to grant the writ simply to re-evaluate the evidence." Id. (quoting Sunday, 301 F.2d at 873). "[I]t is not the duty of civil courts simply to repeat that process—to re-examine and reweigh each item of evidence . . . . It is the limited function of the civil courts to determine whether the military have given fair consideration to each of these claims." Burns v. Wilson, 346 U.S. 137, 144, 73 S. Ct. 1045, 97 L. Ed. 1508 (1953).

2021 U.S. App. LEXIS 34289, at *1-2.

Court of Appeals for the Armed Forces

United States v. Horne. CAAF has granted on this issue:

WHETHER THE CONDUCT OF THE TRIAL COUNSEL AND SPECIAL VICTIM'S COUNSEL CREATED AN INTOLERABLE STRAIN ON THE PUBLIC'S PERCEPTION OF THE MILITARY JUSTICE SYSTEM.

For those who have been arguing that the current SVC program practices create a de facto TC, this might be of interest.

The granted issue seems to be a recharacterization of a motion raised at trial and discussed by AFCCA.

(1) whether trial counsel and the special victims’ counsel (SVC) created an appearance of unlawful influence by interfering with the attempt by the Air Force Office of Special Investigations (AFOSI) to interview JC’s spouse[.]

​Prior to trial, the Defense submitted a motion to dismiss the charge and specification for actual and apparent unlawful command influence or unlawful influence on the basis that, inter alia, Capt JP and Capt AS had “collaborated” to limit the scope of the AFOSI investigation. The Government opposed the motion. Counsel for both parties interviewed TSgt BC prior to a hearing on the motion held on 17 and 18 May 2018. 

At a hearing on the motion, the now former TC testified,

Q [Trial Counsel]. Did you feel like the victim’s husband had any exculpatory evidence? Any evidence that the government was trying to hide from the defense by not interviewing him?

A [Capt AS]. We did. Based on one of the witness’s statements. There had to [sic] appeared to be text messages. However, that evidence was already out there and it had already been 4 and a half months. And again, our understanding at the time was that he was going to decline to be interviewed anyway. Plus there was [sic] spousal privilege considerations. So based on all these factors, that was kind of how we ultimately came to our conclusion of what to do.

Q. So in no way were you trying to impede the investigation? Again, and to any evidence that you thought of that was going to be exculpatory in this case?

​A. No. And at some point, from a prosecutor’s perspective, I mean I--the witness was an outcry witness, right? So I mean there was an assumption that at some point he would be interviewed. It was just at that time, it was really about timing at that point in time, that it was bad timing.

Of note,

SA DM [OSI] made contact with TSgt BC and made an appointment to interview him the following week. Before the interview took place, SA DM received a call from Captain (Capt) JP, who was JC’s SVC at the time. Capt JP told SA DM that the interview “needed to be cancelled” and that SA DM should contact TSgt BC through Capt JP. In addition, Capt JP sent an email to SA LJ at Ramstein AB to the effect that the AFOSI should contact Capt JP in order to speak with JC or TSgt BC.
. . . 
TSgt BC testified [on the motion] inter alia that he did not want to speak with the AFOSI in October 2017, that he had “never talked directly” to Capt JP, and that he did not remember any text messages from JC on 10 July 2017. SA LJ testified that after Capt JP’s email request, she “let [the other agents] know that they needed to communicate directly with the SVC in order to try and set up something concerning the victim, but that they still needed to still try to get the interview from the victim’s husband.” SA LJ further testified that she understood the SVC represented only JC and not JC’s spouse; however, the AFOSI would not interview a victim’s husband against his will. SA DM testified inter alia that he did not conduct the interview with TSgt BC because the lead from Ramstein AB was cancelled, and not because of his conversation with Capt JP

​​The findings and sentence were affirmed. However, one judge dissented on factual sufficiency grounds.

The AFCCA will hold oral argument in United States v. Martinez on Dec. 10, 2021. One of the issues is,

Issue II: Whether the military judge abused his discretion in failing to compel KMT to answer relevant questions to remedy her obstruction of access to witnesses and evidence.

Air Force Court of Criminal Appeals

United States v. Richard.

Forum: Enlisted members.
Findings: G2 1x A&B, 1x poss. CP (divers), 1x distro. CP (divers), 1x produce CP (divers). 
Sentence: 30 days and BCD.

Issues:

• Legal and factual sufficiency to all specifications.
• IAC for failing to raise a motion to suppress the contents of Appellant’s cell phone.
• MJ abuse of discretion improper expert testimony, or IAC for failing to object.
• Improper TC argument.
• Post trial error.

Decision: No prejudicial error, findings and sentence affirmed.

A good case for a relook at how certain, perhaps many offenses, have little or no impact on good order and discipline (but may well be service discrediting--which was not charged here). The court relies on United States v. Davis, 26 M.J. 445, 448 (C.M.A. 1988), which is still good law. But, it seems the Appellant may have a decent argument that Davis is inapplicable here. Davis was a cross-dresser on base case. The Appellant also emphasizes this part of the members' instruction,

(With respect to “prejudice to good order and discipline,” the law recognizes that almost any irregular or improper act on the part of a service member could be regarded as prejudicial in some indirect or remote sense; however, only those acts in which the prejudice is reasonably direct and palpable is punishable under this Article.)

I wonder if CAAF might take this case and decide there was a charging error here which led to an insufficiency? It would not have to overrule Davis, rather describe that case as inapposite on the facts.

Navy-Marine Corps Court of Criminal Appeals

United States v. Macko, __ M.J. ___ (N-M. Ct. Crim. App. 2021).

Forum: MJA GP.
Findings: Attempted sex abuse of child, sex abuse of a child, production and possession of CP, and attempted conspiracy to rape a child. (This appears to be a To-Catch-A-Predator case.)
Sentence: 96 months, RIR, DD.

Issues: (1) Specification 2 of Additional Charge II, alleging production of child pornography, fails to state an offense when Appellant did not produce, create, or manufacture pornographic material; and (2) the MJ judge erred in accepting Appellant’s guilty plea to this specification.

Basically the Appellant alleges that the words "knowingly" or "wrongfully" were missing from the specification.

During providency the Appellant agreed he was a "principal under Article 77, UCMJ, because he commanded, instructed, encouraged, and directed the minor victim to take the sexually explicit photographs of herself which constitute child pornography."

The issue is waiver, which in this case, the court found to be affirmative. The court declines to review past the waiver because the issue is a loser anyway.

As with the similar difference between “intentionally” and “knowingly,” we hold that “wrongfully” and “knowingly” describe “two states of mind [that] are not interchangeable” because they “describe differing states of criminal awareness.”

​Applying these definitions with maximum liberality to the specification in this case, we conclude it does not fail to state an offense. First, the words, “produce child pornography,” necessarily imply that Appellant’s act was “knowing.” While there may be scenarios where an individual could unknowingly “produce” child pornography, we find that when liberally construed in favor of validity, these words sufficiently connote an awareness by Appellant of the practical certainty that his conduct would cause such a result. Second, we agree with the Government’s assertion that the word “wrongfully” is necessarily implied by the specification’s allegation that Appellant produced “digital pictures of a minor engaging in sexually explicit conduct.”

​Decision: No prejudicial error and affirmed.

Note to PHO, SJA, TC: It might be a good idea to review the sample specification in the MCM at IV-142, some unnecessary litigation could have been avoided along with the very slim possibility that the specification is lost on appeal.

Appellate practice

But first, may I suggest the points made go equally to motions practice at trial.

​At the 2021 Summit of the Appellate Judges Education Institute on November 13, Judge James Earl Graves, Jr. of the Fifth Circuit made a plaintive plea: answer the question. After serving for a decade on the Mississippi Supreme Court before assuming his position on the federal appellate court, Graves said that too many advocates fail to follow that simple command. Justice Beth Watkins, who serves on a Texas Court of Appeals, moderated the panel and agreed wholeheartedly that answering the question posed seemed to be a stumbling point for lawyers.

@ Appellate Advocacy Blog.

The "cleaned up" debate continues with a caution about overuse and misuse.

Two recent posts on this blog ((Clean[] Up) Your House, Your Car, Your Life--Not Your Citations, Counterpoint: Use {cleaned up) or something like it) and my first post (Cleaned Up) Citations, discussed the citation parenthetical (cleaned up) and its use and potential for misuse. In a recent decision, the Eleventh Circuit cited an example of misuse that I thought it important to highlight.

@ Appellate Advocacy Blog.

Worth the Read

MAJ Joshua B. Fix, The Revenge of Preemption. The Army Lawyer, No. 3, 2021.

The military’s new statute criminalizing “revenge porn” is a well-intended law that suffers from serious flaws and requires careful revision. Congress intended the statute, Article 117a, Uniform Code of Military Justice (UCMJ), to prohibit and punish the unauthorized distribution of sexual images without the consent of the individuals depicted in the images. As drafted, however, Article 117a may actually inhibit—rather than enable—the prosecution of “revenge porn.” Congress should revise Article 117a to remedy the problems that inhibit prosecution, and match the function of the law to its purpose.

First, this article discusses the phenomenon frequently called “revenge porn”—but more properly known as the wrongful distribution of intimate images (WDII).

Second, this article addresses several problems with Article 117a that work against the purpose of the statute. These problems include the fact that Article 117a does not prohibit WDII involving minors; it does not prohibit WDII that lacks a “direct and palpable” connection to the military; it lacks clarity in key language; and, due to the doctrine known as “preemption,” Article 117a likely prevents the military from prosecuting WDII that is not prohibited by Article 117a.

Third, this article reviews guidance on how to address the problems in Article 117a drawn from military, federal, and state jurisprudence.

Michael W. Drapeau, Real and Substantive reforms are coming to [Canada]. Nov. 23, 2021; commenting on "Liberals to study plan to move military prosecutors and defence lawyers to civilian justice system."

Th[e reforms] would be akin to what has been taking place in Austria, Belgium, the Czech Republic, France, Germany, the Netherlands, and Lithuania who has more or less repealed military jurisdiction over crimes in peacetime and return such jurisdiction to ordinary courts of law.

Cheers, Phil Cave