CAAF announced today that it granted a new case for review on Friday. The case is a government appeal dealing with the probable cause to support a search authorization. CAAF's jurisprudence on this narrow area of law is expanding rapidly. NMCCA opinion here. DJ text here:
"No. 20-0231/NA. U.S. v. Jerry R. White. CCA 201900221. On consideration of Appellant's petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862 (2012), it is ordered that said petition is granted on the following issue:
DID THE LOWER COURT ERR IN DETERMINING THE GOOD FAITH EXCEPTION APPLIED WHEN THE MILITARY JUDGE FOUND SO LITTLE INDICIA OF PROBABLE CAUSE EXISTED THAT NO REASONABLY WELL-TRAINED OFFICER WOULD RELY ON THE SEARCH AUTHORIZATION?"
United States v. Cannon, No. ARMY 20180580, 2020 BL 294916 (A. Ct. Crim. App. July 31, 2020)
A military judge sitting as a general court-martial convicted appellant of one specification of desertion and one specification of absence without leave (AWOL) terminated by apprehension, in violation of Articles 85 and 86, Uniform Code of Military Justice, 10 U.S.C §§ 885 and 886 [UCMJ]. The military judge sentenced appellant to a bad-conduct discharge, confinement for twenty-four months, and reduction to the grade of E-1. On appeal, appellant asserts that he was prejudiced when the military judge considered inadmissible sentencing evidence. In a unanimous opinion, the court found that appellant was prejudiced with the admission of erroneous evidence.
Government’s Rebuttal and the Testimony of Command Sergeant Major (CSM) TD
To rebut testimony that appellant was a “good soldier,” Command Sergeant Major TD explained the basis for this disagreement by citing investigations related to appellant's alleged misconduct. Also in rebuttal, the government sought to introduce five “Prosecution Exhibits” evidencing appellant’s criminal history, which included many uncharged acts of misconduct. The military judge admitted the evidence saying the defense had “opened the door.”
On appeal, the Court found that the military judge “erred when she allowed CSM TD to testify about specific instances of uncharged misconduct by the accused, which involved a positive urinalysis, theft from the mailroom, and drinking in violation of an order.” The Court conceded that the government was permitted to attack the witnesses’ opinion, but was not permitted to introduce extrinsic evidence of these specific instances, which were not otherwise admissible under any basis allowed by Rule for Courts-Martial [R.C.M.] 1001(b).
Regarding the admission of the instances of uncharged conduct, the Court found that the military judge did not err. The Court explains that “the military judge explicitly indicated that she would not consider any portion of Pros. Ex. 9 other than information pertaining to his civilian convictions, which were otherwise admissible under R.C.M. 1001(a)(1)(A)(iii). Thus, even if the military judge erred by admitting portions of Pros. Ex. 9, we are confident that any error is harmless given her stated limitation to consider only the convictions.”
The Kerr Test
In evaluating the influence of erroneously admitted evidence the Court weighed the following factors: (1) the strength of the Government's case, (2) the strength of the defense case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question." United States v. Bowen, 76 M.J. 83, 89 (C.A.A.F. 2017) (citing United States v. Kerr, 51 M.J. 401, 405 (C.A.A.F. 1999)).
Applying the Kerr factors, the Court found that “appellant was prejudiced by the introduction of various acts of uncharged misconduct. The cumulative nature of the substantial amount of uncharged misconduct, coupled with the government's specific argument asking the military judge to consider the uncharged misconduct, compels us to find that the erroneous evidence impacted the adjudged sentence.”
The Court affirmed the sentence for a bad-conduct discharge, confinement for twenty-three months, and reduction to the grade of E-1 and set aside any remaining portions.
 The opinion was authored by Judge Salussolia.
 To include: (1) a positive urinalysis, (2) theft of credit cards from the unit mailroom, and (3) drinking alcohol in violation of an order.
 A criminal history of civilian arrests that resulted in “a few” convictions (Pros. Ex. 9), appellant’s civilian arrest history and report relating to his desertion and initial AWOL (Pros. Ex. 10), an excerpt of a CID report pertaining to appellant's positive urinalysis for methamphetamines, which was never charged (Pros. Ex. 11), and “[CID’s] final reports stating not only that appellant was the subject of the charged AWOL and desertion offenses, but also that he was the subject of several uncharged UCMJ violations, including larceny of private funds, larceny of mail, making a false official statement, and failure to obey a regulation (Pros. Ex. 12-13)”
West Point's Lieber Institute for Law & Land Warfare has just launched a great new online publication, Articles of War. Already a companion to publications like Lawfare, Just Security, Opinio Juris and (of course) CAAFLog, Articles of War states that its mission is to be "platform for timely analysis, debate and commentary around legal challenges arising from the contemporary battlefield." It is clear that it will be a must read for judge advocates, civilian lawyers, and legal scholars working in the operational law space as well as those who find themselves litigating LOAC issues.
Articles of War has already put up some provocative, high-caliber scholarship:
LTG Charles N. Pede, COL Joshua F. Berry, Francis Lieber's Living Legacy (August 5, 2020)
Ashley Deeks, Will Autonomy in U.S. Military Operations Centralize Legal Decision-Making (August 5, 2020)
Michael N. Schmitt, Targeting Non-State "Mixed Groups" (August 5, 2020)
Geoff Corn, Civilian Casualty Aversion and the Potential Nullification of "Shock" (August 5, 2020)
We look forward to reading and cross-posting their work in the coming months. For those who want to know more you can sign up for the Articles of War mailing list, or follow them on LinkedIn and Twitter.
United States v. Gilbert, No. ARMY 20190766, 2020 BL 294990 (A. Ct. Crim. App. July 31, 2020)
Appellant met a 13-year old girl (“MN”) online and asked her to send him nude photos. Although he never received the photos, he pled guilty to (1) attempt to possess child pornography; (2) sexual abuse of a child; and (3) possession of child pornography. On appeal, the ACCA considered whether asking a minor to send naked pictures of herself, and hoping the images contained sexually explicit conduct, satisfied the elements of attempted possession of child pornography. In a unanimous opinion, the ACCA found that it did not.
Appellant’s Conduct Did Not Constitute a Substantial Step In Committing the Crime
To be convicted of attempted possession of child pornography, the solicited images must depict “sexually explicit conduct.”
In this case, Appellant asked for a nude “selfie” of MN, but she declined. She later suggested that she would send Appellant a photo of her clothed breasts. Appellant replied that it would be “only fair” if he could see her naked.
Since the conversation suggested that MN would be sending a nude photo of her breasts only, the military judge concluded that this image would not be “sexually explicit” within the meaning of the statute. However, the military judge still ruled that Appellant took a “substantial step” toward committing the crime because he testified that he “hoped” MN would send him sexually explicit photos eventually.
The ACCA disagreed and held that Appellant’s “hope” that he would receive sexually explicit photos eventually was not a substantial step but only “preparation.” Accordingly, the Court set aside the attempt conviction and remanded for a reassessment of his sentence.
 Judge Walker authored the majority opinion, which was joined by Judges Aldykiewicz and Salussolia.
 Sexually explicit conduct is “(a) sexual intercourse or sodomy; (b) bestiality; (c) masturbation; (d) sadomasochistic or masochistic abuse; or (e) lascivious exhibition of the genitals or pubic area of any person.”
 Appellant previously had sent MN nude videos and photos of himself.
Many are talking about the opinion released yesterday by the Federal Circuit holding that existing PACER fees are not "reasonable fees." See 28 U.S.C. § 1913. While this statute and this opinion of course do not apply to the military justice system, one should ask whether the transparency concerns that motivate it also militate in favor of greater online access of CAAF and CCA dockets.
Consider Congress's stated purpose in the 2002 "E-Government Act": “[t]o enhance the management and promotion of electronic Government services and processes,” in part by requiring use of “Internet-based information technology to enhance citizen access to Government information and services.” 116 Stat. 2899. As the Federal Circuit wrote in yesterday's opinion, "[T]he First Amendment stakes here are high.... If large swaths of the public cannot afford the fees required to access court records, it will diminish the public’s ability 'to participate in and serve as a check upon the judicial process—an essential component in our structure of self-government.' Globe Newspaper Co. v. Superior Court for Norfolk Cty., 457 U.S. 596, 606 (1982)." NVLSP v. United States, Fed. Cir. No 19-1081 (Aug. 6, 2020).
The same is equally true with the public's role in the participation in and check on the justice system of its military. Indeed, one might argue that the public checking function is more important in military justice. On the one hand, a lawless military presents a greater threat to public safety than mere police and judicial process; on the other hand, a military that can compel participation in it by young adults must justify its imposition of discipline and punishment as reasonable and fair to the public from which it draws those young adults.
Moreover, the Military Justice Act of 2016 states:
“The Secretary of Defense shall prescribe uniform standards and criteria for conduct of each of the
following functions at all stages of the military justice system, including pretrial, trial, post-trial, and appellate processes, using, insofar as practicable, the best practices of Federal and State courts:
(4) Facilitation of access to docket information, filings, and records, taking into consideration
restrictions appropriate to judicial proceedings and military records.” 10 U.S.C. 940a.
Isn't online docket access a federal "best practice?"
An update on the Guantanamo commission case of Ali Al-Bahlul. Bahlul has prevailed on his claim that the USCMCR applied an incorrect standard on resentencing, and the case has been remanded.
Opinion here. Given the involvement of various members of the editorial team in this litigation, I offer only the following snip from Bloomberg's Bernie Pazanowski:
"The life sentence given Osama bin Laden’s propaganda chief must be reevaluated again by a military commission that previously reaffirmed it on remand, the D.C. Circuit said Tuesday.
The Court of Military Commission Review applied the wrong standard when it upheld Ali Hamza Almad Suliman Al Bahlul’s life sentence, the opinion by Judge Neomi Rao said.
Al Bahlul received the life sentence after being convicted for conspiracy to commit war crimes, providing material support for terrorism, and soliciting others to commit war crimes.
The first time the case was appealed, the D.C. Circuit only upheld the conspiracy count, and remanded with instructions for the commission to determine if vacating the other two convictions affected the sentence.
On remand, the commission rejected Al Bahlul’s constitutional challenges to the sentence and affirmed it. The commission said the vactures [sic] didn’t effect the sentence, which would have been imposed even if Al Bahlul was only convicted of the conspiracy, and that any constitutional error was harmless.
Constitutional errors must be harmless beyond a reasonable doubt, the court here said. By relying on the fact Al Bahlul would have received the life sentence even if he was only convicted of the conspiracy, the commission didn’t address whether the alleged constitutional errors were harmless beyond a reasonable doubt, it said.
The case was remanded for application of the proper harmless error standard."
"Certificate for Review Filed
No. 20-0342/AR. United States, Appellant v. Dashaun K. Henry, Appellee. CCA 20190688. Notice is given that a certificate for review of the decision of the United States Army Court of Criminal Appeals and supporting brief were filed under Rule 22 on this date.
DID THE MILITARY JUDGE ABUSE HIS DISCRETION IN EXLUDING [sic] THE FOUR STATEMENTS ON WHICH THE PROSECUTION SOUGHT INTERLOCUTORY APPELLATE REVIEW, PURSUANT TO ARTICLE 62, UCMJ."
What is going on? Also, they didn't correct the typo from before.
The DJ also takes note of the vacancy on the court left by Judge Ryan's retirement last week:
In Re: Court Vacancy. Article 142 of the Uniform Code of Military Justice, (UCMJ), 10 U.S.C. § 942 (2018), authorizes the appointment of five judges to serve on the Court. One of the positions is vacant. Unless the Court issues a notice that a senior judge or an Article III judge will perform judicial duties, the four judges in active service will perform the functions of the Court. See Articles 142 and 144, UCMJ, 10 U.S.C. §§ 942, 944, and C.A.A.F. Rule 6(a)."
On 23 July 2020, the ACCA overturned Sgt Wetmore’s conviction forgery (Art 123) for factual sufficiency. Sgt Wetmore had plead guilty at a special court martial to forgery, along with larceny and false official statement. The ACCA found Sgt Wetmore’s plea was not factually sufficient because the document he falsified did not “change a legal right to the government’s prejudice.” The court upheld the sentence and the remaining findings.
The ACCA opinion is available here.
Sgt Wetmore made two material falsehoods. First, when he entered active duty from the reserves in 2016, he lied about being married in order to obtain BAH at a higher rate. Next, when his command was preparing a package for promotion in 2018, they noticed the discrepancy since they believed he was divorced. Sgt Wetmore submitted a divorce decree to his personnel office after changing the date of the divorce to 17 September 2018.
The court focused on the second prong of forgery:
Specifically, the court found the false divorce decree did not “impose a legal liability on the government or did it change a legal right to the government’s prejudice. Since the document ended Sgt Wetmore’s right to BAH at the “with dependent” rate, it did not change a legal right to the government’s prejudice. The court primarily relied on United States v. Thomas, 25 M.J. 396, 402 (C.M.A. 1988) in narrowly construing Article 123.
The court also relied on United States v. Strand, 20 C.M.R. 13, 19-20 (C.M.A. 1955) wherein an enterprising Marine created a letter supposedly from a judge advocate stating Strand was killed in a car accident, giving the term “ghosting” a whole new meaning. However, the CMA found this act would not sustain a conviction for forgery because the falsehood created no legal rights for any of the parties.
Central to the court's interpretation of Art 123 is the nature of the document and the requirement it create some kind of legal liability. Surely, this document did not create a liability for BAH, it fell short of the requirement of the statute.
While the appellate defense counsel deserves commendation for their advocacy, this seems to read the statute too narrowly. When Sgt Wetmore filed the false divorce document, he extinguished, or at least sought to extinguish, a government right to recover BAH that had been received falsely. It is not required that the prejudiced party realize that their legal rights had been changed at the time of the filing. United States v. Farley, 11 U.S.C.M.A. 730, 732, 29 C.M.R. 546, 548 (1960). At the time of the filing, Sgt Wetmore rightly owed money to the government, and by filing this false document that debt would extinguished, if the document was true.
Also, it is not clear that “changing another’s legal rights” is limited to a pecuniary loss. Does the government have a legal right to pursue good order and discipline since Sgt Wetmore used the document to cover up his criminal wrongdoing? The CAAF may be seeing this case as a certified issue in the future.
Military Justice Editor
Recently, the ACCA decided United States v. Johnson, a case about excited utterance.
Since things are slow in the summer we can indulge in some minutiae. Today this appeared on the DJ:
"No. 20-0321/NA. In Re Decker B. Jordan, Petitioner. CCA 201100621. On consideration of the petition for extraordinary relief in the nature of a writ of mandamus, it is ordered that the petition is dismissed for lack of jurisdiction."
Google reveals that Decker Jordan was sentenced to 30 years for child rape in 2011. Case here. CAAF denied review in 2013. 72 M.J. 403.
Here is another filing from last year:
"Miscellaneous Docket - Summary Disposition
Notice is hereby given that a petition for 39(A) Evidentiary Hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (C.M.A. 1967) and R.C.M. 1102(b)(2) & (d), which this Court construed as a petition for extraordinary relief was filed under Rule 27(a) on July 30, 2019, and placed on the docket on the 1st day of August, 2019. On consideration thereof, it is ordered that the petition is dismissed for lack of jurisdiction on this date.
Jordan v. United States, 79 M.J. 215 (C.A.A.F. 2019)"
I am guessing this is a prisoner complaining about prison conditions. If so, he should be filing a habeas in D. Kan., not a mandamus petition at CAAF. It would be good, if future resources (from Congress) allow, for all these dockets to be publicly available and online. This would facilitate external study of the system. For example, it would be interesting to know if the military courts are inundated with pro se prisoner petitions as are the other circuit courts. I suspect that this is not such a big problem given the small number of military prisoners. Consider this pie chart (note the military prisoner slice on the bottom right):
United States v. Hanabarger [opinion link here]
Appellant was convicted of two specifications of sexual assault in violation of Article 120 of the Uniform Code of Military Justice (UCMJ). First, Appellant was convicted of penetrating a female Staff Sergeant’s (SSgt Charlie) vulva with his penis by causing bodily harm—without her consent. Second, doing so again hours later when he knew or reasonably should have known she was asleep.
Appearing before the NMCCA, Appellant submits four assignments of error. However, the majority reaches its conclusion focusing exclusively on his first assignment of error—whether the evidence presented is legally and factually insufficient to support Appellant’s convictions. In this 2-1 decision, the Court found that the presented—namely, the admitted evidence and trial testimony—did not “eliminate every fair and reasonable hypothesis except guilt.”
 The additional assignments of error—though not addressed by the majority as they found the evidence lacking to support the conviction—include:
(2) the trial counsel committed prosecutorial misconduct by introducing evidence of bruising to SSgt Charlie’s inner thighs at trial after unequivocally promising during pretrial litigation that he would not do so; (3) the military judge erred in denying a Defense motion to compel production of the lead Naval Criminal Investigative Service [NCIS] agent who investigated the case; and (4) Appellant’s trial defense counsel were constitutionally ineffective.
 The dissent, however, while finding the evidence to be sufficient, would have decided the case based upon the second and third assignments of error.
 The Court explains that “[a]fter reviewing the record, focusing solely on the admitted evidence and testimony at trial, we are not persuaded the Government proved its case beyond a reasonable doubt.”
Here is what we have been waiting to see in writing.
TJAG POLICY MEMORANDUM 20-02 - CONSOLIDATION OF REHEARINGS, NEW TRIALS, OTHER TRIALS, AND REMANDS
Effective 31 July 2020, the Clerk of Court, U.S. Army Court of Criminal Appeals, will refer the records of trial of cases under the order of remand to the Commander, Combined Arms Center, Fort Leavenworth, KS, subject to the procedures and exceptions listed in the Rehearing Consolidation Business Rules.
All rehearings, new trials, and remands, regardless of the alleged offense or offenses, will be returned to Fort Leavenworth, Kansas for disposition, subject to the limitations in the enclosed business rules. The purpose of consolidation is to standardize and enhance the processing, prosecution, and defense of rehearings and other remanded cases. The Fort Leavenworth Office of the Staff Judge Advocate, as augmented with additional Judge Advocate Legal Services personnel for the purpose of rehearing prosecution, will serve as the U.S. Army's subject matter experts on the complex procedures involved in undertaking a rehearing, new trial, or other trial as defined in Rule for Court-Martial 810.
Official Link: https://www.jagcnet2.army.mil/TJAGPolicyMemo20-02.
Yesterday, the CAAF decided United States v. Reyes, a case about speedy trial.
Appellant was convicted under an aiding and abetting theory for counseling his lover (“MB”) to take and distribute explicit photos of her daughter (“EF”). The CAAF granted review on whether it is legally impossible for Appellant to be convicted of distributing indecent images to himself under Article 77, UCMJ, when the plain language of article 120c(d)(5) requires the images to be distributed to “another.” The NMCCA found that it was legally possible for the reasons summarized below.
CAAFlog law of armed conflict editor Michel Paradis's new book is now #1 best seller in legal history!
A new grant from Tuesday with a fascinating issue:
"Order Granting Petition for Review
No. 20-0268/MC. U.S. v. Gregory S. Simpson. CCA 201800268. On consideration of Appellant's petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:
WHETHER IT IS LEGALLY IMPOSSIBLE FOR APPELLANT TO BE CONVICTED OF DISTRIBUTING INDECENT IMAGES TO HIMSELF UNDER ARTICLE 77, UCMJ, WHEN THE PLAIN LANGUAGE OF ARTICLE 120c(d)(5), UCMJ REQUIRES THE IMAGES BE DISTRIBUTED TO "ANOTHER.""
Lower court opinion here.
Apparently he was charged as an aider and abettor to distribution when he received images of the victim from another person. Provisionally I will opine that this is how aiding and abetting liability should play out, and that this was rightly decided. However, it also demonstrates a limitation of the doctrine (due to its overbreadth).
"No. 20-0247/AR. U.S. v. Carrera R. Anderson. CCA 20180540. On consideration of Appellant's 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, and the decision of the United States Army Court of Criminal Appeals is affirmed.*
* The Clerk of the Court is ordered to seal pages 31-76 of the record of trial (Military Rule of Evidence 412 hearing)."
For more on this, see CAAF Rules Guide § 30A.03 (discussing similar action in Barry case that led to more litigation).
In a case certified by the Judge Advocate General of the Air Force, CAAF returned to the messy world of waiver and the good-faith exception to suppression under the Fourth Amendment and the Military Rules of Evidence. Reversing the Air Force court, CAAF considered but rejected the appellee’s claim that the search authorization in his case was founded on an agent’s reckless omissions and misstatements to the magistrate.
In the future, when commenting on any Daily Journal entry that is relevant to interpreting CAAF's rules, I will highlight relevant sections of the CAAF Rules Guide that discusses the issue (I recently joined as a co-editor). These will be called "Rules Notes."
Today, consider the following interesting entry, which indicates that the Army TJAG withdrew certification of an issue.
Recently, the NMCCA decided United States v. Becker, a case about the doctrine of forfeiture by wrongdoing.
The answer is "no." Our trusty intern team has analyzed all cases in the last decade in which CAAF was asked to overrule itself. Overruling occurred in six of the thirteen cases. Here are the cases--and whether the overruling in fact occurred:
United States v. Phillips, 70 M.J. 161 (2011) – No
United States v. Payne, 73 M.J. 19 (2014) – Yes
United States v. Gutierrez, 74 M.J. 61 (2015) – Yes
United States v. Simmermacher, 74 M.J. 196 (2015) – Yes
United States v. Quick, 74 M.J. 332 (2015) – No
United States v. Cooley, 75 M.J. 247 (2016) – Yes
United States v. Mangahas, 77 M.J. 220 (2018) – Yes
United States v. Blanks, 77 M.J. 239 (2018) – No
United States v. Andrews, 77 M.J. 393 (2018) – No
United States v. Dinger, 77 M.J. 447 (2018) – Yes
United States v. Perkins, 78 M.J. 381 (2019) – No
United States v. Tovarchavez, 78 M.J. 458 (2019) – No
United States v. Jessie, 79 M.J. 437 (2020) – No
For the points of law that were addressed in these cases, read more below.
A "JUDICIAL" SYSTEM IN THE EXECUTIVE BRANCH: ORTIZ V. UNITED STATES AND THE DUE PROCESS IMPLICATIONS FOR CONGRESS AND CONVENING AUTHORITIES
"Abstract: In Ortiz v. United States, 138 S. Ct. 2165 (2018), the majority described the military court-martial system (a commander-controlled process for adjudicating criminal complaints) as judicial in character. It reached this conclusion over Justice Alito's dissent, which took a diametrically opposed view by describing the system as an Executive Branch entity that could not exercise judicial power. The conflict between these two views is nothing new as they have been at the center of a debate about the fundamental nature of courts-martial for more than a century. Since Congress legislates consistent with Justice Alito's executive view, a rift between the Legislative and Judicial Branches is now apparent. This gives rise to a question about the constitutionality of the court-martial framework under the Uniform Code of Military Justice (UCMJ): does the current commander-controlled process comply with the requirements of due process? The answer to this question is especially relevant in today's political environment where members of Congress, operating under an executive view of courts-martial, pressure senior military leaders to produce convictions in sexual assault cases. Therefore, this Article examines the due-process question, concluding that there is an argument that the UCMJ's court-marital [sic] framework may not meet constitutional muster. In reaching this conclusion this Article highlights the type of structural reform that is necessary to ensure due-process compliance."