Court of Appeals for the Armed Forces
In United States v. Hiser, the court has taken a first but slim cut at telling us what UCMJ art. 117a means. Judge Maggs, writing for a unanimous court gives the BLUF.
Appellant contends that the military judge abused her discretion in accepting his guilty plea to three specifications of wrongfully broadcasting intimate visual images in violation of Article 117a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 917a (2018). According to Appellant, the providence inquiry in this case failed to establish that the victim was “identifiable” and also failed to establish a “connection to a . . . military environment” as required by Article 117a(a), UCMJ. The record, however, does not support Appellant’s contentions. Because we see no substantial basis in law or fact for questioning the plea, we affirm the judgment of the United States Army Court of Criminal Appeals (ACCA).
The court takes a narrow approach because there is a a guilty plea with a stipulation and good Careful inquiry by the military judge. The court reminds us of three standards of review applicable to in a GP case: (1) A stipulation is true unless withdrawn or stricken from the record, (2) A GP gets affirmed unless there is a substantial basis in law and fact to question the providence of the plea, and (3) when interpreting a statute there is de novo review.
Basically Hiser's was allowed by another Soldier video-record her involved in sexual activity on condition he didn't share it. Well, he did and and he did--take and share. He claimed on appeal that
Recognizing that the new statute is "complicated," laid out in a more than "300 word" sentence, the court focuses on two of the four elements raised by Appellant.
1. What does it mean or what is required for
the accused “knowingly and wrongfully broadcast[ed] . . . a visual image of sexually explicit conduct involving a person who . . . is identifiable from the . . . visual image . . . or from information displayed in connection with the . . . visual image.” Id. § 917a(a)(1)(B) (emphasis added). Second is that the accused “[knew] or reasonably should have known that the . . . visual image of sexually explicit conduct was made under circumstances in which the person depicted in the . . . visual image of sexually explicit conduct retained a reasonable expectation of privacy.”
1. What does it mean or what is required
that the accused’s “conduct, under the circumstances, had a reasonably direct and palpable connection to a military mission or military environment.”
The court is quick to point out that this is not a UCMJ art. 134 offense requiring proof of prejudice to good order and discipline or service discredit; although arguably GoD and the statutory language are similar?
Keeping in mind this was a GP.
1. The stipulation is fact that the victim identified herself from the photo which is good enough under the first prong (citing People v. Johnson, 184 Cal. Rptr. 3d 850 (Cal. Ct. App. 2015). But also, there was viewable "information displayed in connection with the video,"--the Appellant's email address, a description of the victims relationship to him, and some corroboration through a ring and hairstyle seen in the video. The rejected the idea that the statute requires that the person be identifiable by someone in the general public other than by the victim.
2. So what is the "reasonably direct and palpable connection to a . . . military environment?" The court rejects Appellant's argument that "connection element is satisfied only if the broadcasted images at issue were “directed at servicemembers” or were “likely to reach servicemembers.”" Here the court makes the clear distinction between Appellant's guilty plea and a case litigated at trial--when reviewing a guilty plea there is no factual or legal sufficiency review involved. The court here distinguishes United States v. Wilcox, 66 M.J. 442 (C.A.A.F. 2008), which was a UCMJ art. 134, clause 1 and 2 case, and Appellant's prosecutors need not prove the additional element of GoD or SD. I doubt it helped that the stipulation of fact included that,
Appellant specifically stated he uploaded the video to embarrass X., and recognized that other members of her command could see them and think “this is degrading to the U.S. military that Soldiers are uploading this kind of behavior and their intimate lives on to social media or the internet.” Appellant stipulated that there was a negative impact on the military community at Fort D. Finally, unlike the investigators in Wilcox who presumably were not affected by the controversial statements they uncovered, X was (according to the stipulated facts) “likely” to suffer “emotional distress” because of the broadcasting of the videos. Under the plain language of Article 117a(a)(4), UCMJ, nothing more is needed to establish a “direct and palpable connection to a . . . military environment.”
It is possible to wonder whether this case was an appropriate vehicle for announcing some "new" law?
The court also rejects several "other contentions."
1. Yes, a single factual basis may satisfy the elements of two offenses, citing Pasquantino v. United States, 544 U.S. 349, 355 (20025).
2. Arguments about "constitutional implications" of the statute and "unresolved inconsistencies between the stipulation and the video" are outside the scope of the granted issue.
Ding ding. Ding ding. Captain Fulton, departing.
Today is the last day in the storied naval legal career of Captain Marcus N. Fulton.
Over the past 24 years, Captain Fulton has been one of the leading litigators and jurists in the military justice system. He is also both a co-founder and the namer of CAAFlog, which is still running fifteen years after he took such delight in creating a portmanteau by combining the Court of Appeals for the Armed Forces’ acronym with the ancient naval justice practice of flogging.
He is probably the only judge advocate ever to hit the trifecta of engaging in the regular court-martial system, a court of inquiry, and the military commission system. Captain Fulton was a litigator at both the court-martial trial and appellate levels. He is one of a tiny clique of military lawyers who have participated in a court of inquiry, successfully defending USS Greeneville’s officer of the deck at the time of the submarine’s collision with the Japanese fishing vessel Ehime Maru. As a trial judge in Hawaii (how cool is that?), then-Commander Fulton issued a decision finding apparent unlawful command influence resulting from a statement by President Obama—a ruling John Oliver discussed while guest-hosting the Daily Show (how cool is that?). As an appellate judge, he sat on both the Navy-Marine Corps Court of Criminal Appeals and the Court of Military Commission Review. On the Navy-Marine Corps bench, he wrote for the court in such published cases as United States v. Solis, 75 M.J. 759 (N-M. Ct. Crim. App. 2016); United States v. Hale, 76 M.J. 713 (N-M. Ct. Crim. App. 2017); and United States v. Perkins, 78 M.J. 550 (N-M. Ct. Crim. App. 2018). And he authored the Court of Military Commission Review’s decision in Hawsawi v. United States, 389 F. Supp. 3d 1001 (Ct. Mil. Comm’n Rev. 2019), one of the few CMCR opinions to be upheld by the D.C. Circuit. In re Hawsawi, 955 F.3d 152 (D.C. Cir. 2020).
Captain Fulton’s final Navy gig was the coveted position of Director, Navy-Marine Corps Appellate Defense Division—the gunslingers of Code 45. Leading from the front, he argued two cases at CAAF as the Code 45 Division Director, ending his military justice career on a high note with his victory in United States v. Becker.
In addition to his prodigious litigation experience, Captain Fulton twice deployed to the Fifth Fleet as USS Dwight D. Eisenhower’s command judge advocate and put his boots on the ground in Afghanistan during a six-month deployment to the Combined Security Transition Command-Afghanistan in Kabul. He displayed his academic chops with his article, Never Have So Many Been Punished So Much by So Few: Examining the Constitutionality of the New Special Court-Martial, Army Law. (June 2003), at 28. And he is almost certainly the best violinist who has sat on the Navy-Marine Corps Court of Criminal Appeals.
After leaving the Navy, Captain Fulton will become a Veterans Law Judge on the Board of Veterans Appeals. (We can’t help but think of the Daily Show’s America (The Book)’s description of the Board of Veterans Appeals’ superior court, which it called the “U.S. Court of Veterans Affairs”: “Looking for the world’s most depressing court experience? You’ve found it.”)
Fair winds and following seas, Captain Fulton. You have made a tremendous impact on the military justice system during your almost quarter century as a U.S. Navy judge advocate.
Tenth Circuit Court of Appeals
This appeal raises one issue: whether, under 18 U.S.C. § 3553(a), it is unreasonable for a district court to impose a harsher sentence based on a defendant’s decision to plead guilty without a plea agreement. For the reasons explained below, we hold that it is.
The judge gave a middle range sentence, even though the "facts" likely warranted a lower sentence. The accused had rejected a plea offer but pled guilty anyway. The government argued for a lower sentence which was their plea offer. The judge however, said,
I think sometimes there’s sort of an implicit assumption that an individual is entitled to a sentence at the low end of the guideline range, but there is, of course, no such right. And, in practice, one of the factors I’ve used to lean against a low-end guideline range are defendants who submit a plea without a plea agreement, without the agreements that typically happen in a plea agreement.
Seems to me as we move forward with applying the NDAA sentencing changes we will be referring more to federal district court cases? So here is the nub of the case, perhaps for the future?
We review a defendant’s sentence “for reasonableness under an abuse-of-discretion standard,” which applies whether the sentence falls inside or outside of the guideline range. United States v. Henson, 9 F.4th 1258, 1284 (10th Cir. 2021) (quoting Peugh v. United States, 569 U.S. 530, 537 (2013)). The reasonableness of a sentence includes a procedural component, which relates to the method by which a sentence was calculated, and a substantive component, which relates to the length of the resulting sentence. Id. In arguing that the district court impermissibly treated her open plea as an aggravating fact warranting harsher punishment, Ms. Cozad raises a procedural reasonableness challenge. See United States v. Sayad, 589 F.3d 1110, 1116 (10th Cir. 2009) (“Generally, a district court’s use of an improper factor invokes procedural review.”); United States v. Pinson, 542 F.3d 822, 835–36 (10th Cir. 2008) (“While the weight the district court places on certain factors is reviewed for substantive
The Tenth, as we know is were the majority of USDB habeas petitions come from.
MAJ Hugh E. Henson, The Hung Jury: A Court-Martial Dilemma. 35 MIL. L. REV. 59 (1967).
Government motion at ACCA for stay of proceedings.
ACCA Order granting a stay of proceedings.
Links to the Defense motion and the Government reply.
The case is docketed with ACCA as No. 20220001 on Jan. 4, 2022.
January 6 and Military Criminality: A Dangerous Vulnerability
BLUF: Our active duty and veteran populations are uniquely susceptible to domestic and foreign attempts to subvert U.S. democracy, and current countermeasures are insufficient.
It is currently reported that 81 of the 700 criminally charged in connection with the January 6, 2021 Capitol Hill insurrection have former military service, with a handful still in the military at the time (the latter primarily in the Guard and Reserve). This constitutes approximately twelve percent of those charged, a troubling over-representation of the veterans in the general American population, which stands at almost seven percent.
The numbers are perhaps surprising, given that it’s logical to believe that those with prior military service – indoctrinated during military training to obey command (and ostensibly respect the rule of law) – would fall disproportionally amongst society’s rule followers, and hence be less represented in criminal activity. This isn’t the case: currently, almost 6% of all federal prisoners are veterans, and veterans account for 7.9% of all state prisoners – thus basically tracking the proportion of veterans in society overall. Like non-veterans, veteran federal offenders’ most common felony is drug trafficking (however, veterans are federally convicted of child pornography and sexual abuse crimes at far higher rates, up to four times higher, than that of the non-veteran offender population).
While general veteran criminality thus tracks veteran representation in society overall, the federal sentencing guidelines, the U.S. Supreme Court and a growing number of states treat military service as a mitigating factor to be considered at sentencing. The support of potential leniency in punishment for crimes committed by those with military service is understandable; it is based on recognition of such veterans’ sacrifices in federal service; the well-documented higher rate of mental health challenges amongst veterans; the documented difficulties in transitioning back to civilian life, etc.
Despite the growing trend of special treatment for veterans in American criminal justice systems, what about Janaury 6? Should prior military service lessen the punishment of those involved in the January 6 insurrection, given its uniquely anti-democratic, seditious nature – one vastly different than the average crimes veterans are convicted of? Or should it be somehow aggravating? Shouldn’t military service in fidelity to the Constitution have taught these veterans, more than any other American, that forcibly attempting to obstruct the certification of the presidential election was morally, ethically, and legally wrong, therefore exacerbating their criminality? And what does the greater representation of former military members in the January 6th mob criminality say about the military and our nation?
Yes, prior military service should be considered in appropriate individual mitigation for those charged with January 6 criminality. The service-connected factors that led the federal sentencing guidelines to allow downward departure for military service (and led to the creation of various states’ veterans courts) exist regardless of crime committed. The disproportionately high rate of mental health and related substance abuse challenges amongst the veteran population are only the most obvious factors. They are not crime-specific, and don’t manifest simply in drug-related crimes. They may make individuals, particularly veterans used to belonging to a specific community with shared values and indoctrinated obedience, more vulnerable to group dynamics plus more vulnerable to targeted disinformation.
Second, and related – and perhaps more surprisingly, as well of greater significance well beyond January 6 – is the role of military culture (exacerbated by social media) in veterans’ participation on January 6. That is, it is not simply the higher rate of mental health issues generically in the veteran population that supports allowing military service to play a mitigating role in individual January 6 criminality. It is the fact of military culture itself, and its lasting impact on those who served in uniform.
While military service teaches (and requires) generic fidelity to the Constitution, our armed forces’ training, laws, customs, and operations emphasize to a far, far greater extent the notion of obedience to orders – of fidelity to command (in a very real sense, “rule of law” in the military means rule of the commander). It is part of the military’s very DNA that a superior’s orders constitute the law; ignoring or violating their command is criminal for service members (as long as the order is not clearly illegal, which is a high bar given that all orders carry a presumption of legality).
Buttressing the dynamic of fidelity to command is the unifying and highly motivating concept of patriotism, of pride in country – and the sense of belonging and working toward something greater than oneself. Feeling good about one’s calling, one’s place in life, and about one’s nation is a powerful current that seemingly motivates many service members to serve for years, and is one many veterans strive to recapture after they’ve left the ranks. It is also one that is tapped into by politicians of all stripes, though most flagrantly and dangerously by former President Donald Trump and some of his most vocal supporters.
The dividing line between patriotism and nationalism – even fascism – can be a murky and dangerous one, and January 6th events demonstrate it can be crossed even in this country. It can be crossed even by people who once swore to uphold and defend the Constitution, because their previous fidelity was exploited through social media disinformation, retired senior military officers like Mike Flynn, and most powerfully by a then-sitting President.
Critically, in the hours leading up to January 6’s insurrection, President Trump, the then-Commander in Chief, was directly telling these veterans to “fight like hell,” and calling the crowd “American patriots.” He also said, “We're supposed to protect our country, support our country, support our Constitution, and protect our constitution” – thus framing his call to violent action in the language designed to resonate with former service members and their followers; dog whistle commands issued by a commander to his troops in a language they were trained for years to understand and obey.
The veterans present on January 6 were no longer subject to orders, and of course they were and are individually responsible for their own actions, and should be held appropriately accountable. (As was Jacob Chansley, the infamous Q’Anon shaman and Navy veteran who was recently sentenced to 41 months by a federal judge who himself is a decorated Vietnam veteran; Chansley faced 20 years imprisonment, so perhaps his honorable service did play a small mitigating role, the sentencing transcript is not yet available). But no one should discount the ingrained nature of obedience to a command figure in current and former military members, nor should military service somehow be considered an aggravating factor in January 6 criminality (as natural an impulse as that may initially be for some) – arguably because an essential part of military service makes former members more vulnerable to masterful exploitation of the type that helped produce January 6.
And Trump’s incitement did not occur in a vacuum: the nation is now learning more about the roll disinformation and propaganda played in the time leading up to the January 6 attack on Capitol Hill. As briefly alluded to above, current research is also revealing the dangerous vulnerability of the veteran community to disinformation. Indeed, after the insurrection one expert concluded that “[v]eterans’ patriotism is being weaponized by disinformation in a deliberate effort … to turn our democracy on itself.”
This weaponization is not limited to veterans, though their commission of extremist-motivated crimes has jumped significantly in the last ten years. As several former general officers noted recently, the military itself is not immune to such manipulation, nor to the nation’s deep political divide. They warn of a future breakdown in command as rogue units organize “to support the rightful commander in chief” after the presidential election in 2024, and call for enhanced civic lessons. And the current Secretary of Defense seems to share similar concerns, having implemented a stand-down day earlier this year to train on countering small growing extremism in the ranks. He also recently released new military-wide guidance on what constitutes participation in extremist groups, though two of his top four-star commanders (who command hundreds of thousands of troops) publicly claimed there is no problem, undermining confidence that the uniformed military leadership is appropriately seized of the issue.
So as Fox News continues to blare in military offices around the nation and the globe, as it has for years, and service members and veterans are exposed to ever louder drumbeats of misinformation over social media, one wonders whether individual prison sentences of folks like Mr. Chambley, as appropriate as they may be, will help counteract such messages.
Rachel VanLandingham, Prof. of Law, Southwestern Law School.
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This Court previously reviewed this case in 2019. United States v. Cooper, 78 M.J. 283 (C.A.A.F. 2019). At that time, we concluded that Appellant/Cross-Appellee Yeoman Second Class (YN2) Cooper had waived his right to request individual military counsel (IMC). Id. at 287. We then remanded the case for further review. Id. On remand, the United States Navy-Marine Corps Court of Criminal Appeals (NMCCA) held that YN2 Cooper had received ineffective assistance of counsel. United States v. Cooper, 80 M.J. 664, 666 (N-M. Ct. Crim. App. 2020). As a consequence, the NMCCA set aside the findings and sentence in this case and authorized a new trial. Id.
The Judge Advocate General of the Navy, believing that the NMCCA had reached the ineffective assistance of counsel issue in an improper manner, then certified the following question to this Court: “Did the lower court err applying United States v. Chin, 75 M.J. 220 (C.A.A.F. 2016), (a) as a prerequisite to considering ineffective assistance of counsel, and (b) to disregard the knowing, voluntary, and R.C.M. 905 waivers, of individual military counsel?” United States v. Cooper, 81 M.J. 135 (C.A.A.F. 2021). YN2 Cooper also has appealed, asserting alternative grounds for affirming the NMCCA’s decision.1
After careful consideration of the parties’ contentions, we have determined that we need not decide the certified issue because the Government now concedes that the NMCCA could have reached the ineffective assistance of counsel issue without relying on our decision in Chin. As a result, whether the NMCCA erred in applying Chin to reach the ineffective assistance of counsel issue is of no consequence in this case.
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