"No. 21-0135/AF. U.S. v. D'Andre M. Johnson. CCA 39676. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:
I. WHETHER THE MILITARY JUDGE PLAINLY ERRED BY PERMITTING TRIAL COUNSEL TO ARGUE FACTS NOT IN EVIDENCE.
II. DURING CLEMENCY, APPELLANT DETAILED THE DEPLORABLE CONDITIONS OF HIS POST-TRIAL CONFINEMENT. ON APPEAL, HE PROVIDED SUPPLEMENTARY INFORMATION ON THESE CONDITIONS TO SUPPORT HIS CLAIMS OF CRUEL AND UNUSUAL PUNISHMENT AND TO SEEK SENTENCE RELIEF. DID THE LOWER COURT ERR WHEN IT DECIDED IT COULD NOT CONSIDER THIS SUPPLEMENTARY EVIDENCE FOR ITS SENTENCE APPROPRIATENESS REVIEW?
No briefs will be filed under Rule 25."
Elizabeth M. Berecin
Save the Date: Panel on the Civilian-Military Defense Counsel Relationship -- with a focus on ethics
Given the great deal of interest in the discussion regarding relations between civilian and military defense counsel, CAAFlog will host a one hour Zoom panel and Q&A relating to that subject. Panelists TBA. This will occur one week from today, at noon EST. Those wishing to attend or participate anonymously should join as guests (not through their personal Zoom account) and should anonymize their names.
Topic: CAAFlog: A Discussion Regarding the Civilian-Military Defense Counsel Relationship
Time: Apr 27, 2021 12:00 PM Eastern Time (US and Canada)
Join Zoom Meeting
Meeting ID: 959 9931 0865
One tap mobile
+16465588656,,95999310865# US (New York)
+13126266799,,95999310865# US (Chicago)
Dial by your location
+1 646 558 8656 US (New York)
+1 312 626 6799 US (Chicago)
+1 301 715 8592 US (Washington DC)
+1 669 900 6833 US (San Jose)
+1 253 215 8782 US (Tacoma)
+1 346 248 7799 US (Houston)
Meeting ID: 959 9931 0865
Find your local number: https://hofstra.zoom.us/u/ao0mUr3e
Southwestern Law School is hosting (with 1 hr CLE) a military justice panel discussion TUESDAY APRIL 20th at 6:00PM PST (9pm EST). Click here to register.
"NIMJ's Prof. Rachel VanLandingham, Protect Our Defender's President Don Christensen, Community Veterans Justice Project's founder & Executive Director Jodi Galvin, and NIMJ's Prof. Josh Kastenberg will be discussing everything from differences between military and civilian criminal justice, anticipated reforms, the military justice system's (mis)handling of sexual assault, pressing veterans' issues and more."
This week, Scholarship Saturday is pleased to present the work of 3rd-year UMass Law School student Alexandria Murphy. Her piece, starting after the break, introduces an article written by UC Berkley law professor Orin Kerr concerning the constitutionality of the internet content preservation statute that is so often used by military law enforcement agencies, especially when investigating online crimes.
- Isaac Kennen, Scholarship Editor
A military judge sitting as a general court-martial convicted appellant, pursuant to his plea, of one specification of indecent recording, in violation of Article 120c, Uniform Code of Military Justice, 10 U.S.C. § 920c [UCMJ]. The military judge sentenced appellant to a bad-conduct discharge, confinement for seven months, and reduction to the grade of E-1. Consistent with the pretrial agreement, the convening authority approved the portion of the sentence extending to a bad-conduct discharge, confinement for 180 days, and reduction to the grade of E-1.
Appellant argues the military judge abused her discretion, by accepting his guilty plea because there was an insufficient factual basis for concluding that appellant indecently photographed the victim.
"Petition for Grant of Review - Summary Disposition
No. 21-0138/NA. U.S. v. Calvin Halfacre. CCA 201900210. On consideration of the 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, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.*
* It is directed that the promulgating order be corrected to accurately reflect that Appellant pleaded guilty to each specification under Charge II excepting the language "was to the prejudice of good order and discipline in the armed forces and" in each specification and guilty to Charge II.
Certificate for Review Filed
No. 21-0222/NA. U.S. v. Chase T. Miller. CCA 201900234. Notice is hereby given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 on this date on the following issues:
DID THE LOWER COURT ERR IN FINDING THE CONVENING AUTHORITY ABUSED HIS DISCRETION UNDER R.C.M. 1109 BY ACTING AFTER APPELLEE SUBMITTED R.C.M. 1106 CLEMENCY MATTERS BUT BEFORE THE MILITARY JUDGE ISSUED HIS WRITTEN POST-TRIAL RULING?
DID THE LOWER COURT ERR IN FINDING THAT THE STAFF JUDGE ADVOCATE'S REVIEW WAS UNINFORMED UNDER R.C.M. 1109 WHERE THE REVIEW WAS COMPLETED AFTER APPELLEE SUBMITTED R.C.M. 1106 CLEMENCY MATTERS AND REVIEW OF THE MILITARY JUDGE'S POST-TRIAL RULING WAS NOT REQUIRED UNDER R.C.M. 1109?
DID THE LOWER COURT ERR IN FINDING THAT THE POST-ACTION WRITTEN RULING WAS A SUBSTANTIAL OMISSION WHERE THE RULING WAS NOT AN R.C.M. 1106 MATTER AND NOTHING IN THE NEW RULES REQUIRED THE CONVENING AUTHORITY TO CONSIDER THE RULING PRIOR TO TAKING ACTION UNDER R.C.M. 1109 EVEN IF INCLUDED IN THE RECORD OF TRIAL?
Appellant will file a brief under Rule 22(b) in support of said certificate on or before the 12th day of May, 2021."
Editor's note: Halfacre was granted review for a clerical correction, and therefore the petitioner is now eligible to petition for cert at SCOTUS. The same is not true of all the other cases that, for whatever reason, failed to gain enough votes to be granted review. Does this make sense?
A Washington Post article that's worth the read:
Pentagon leaders have opposed plans overhauling the military system for trying sexual assault for years. Has the time come for change?
As CAAFLog readers may remember, the D.C. Circuit heard argument this past January in a mandamus case to come out of the military commissions with potential relevance to military justice as a whole. Again, the question was whether a military judge serving on one of the military commissions violated judicial ethics by seeking employment elsewhere in the government without telling the parties. In 2019, the Circuit had vacated almost five years of proceedings in the Al-Nashiri case after Col Vance Spath, USAF, had secretly applied for an appointment as an immigration judge. Most recently, the Circuit confronted the same problem with CAPT Kirk Waits, USN, the military judge who initially presided over the case of United States v. Al-Iraqi (aka Nashwan Al-Tamir).
On Friday, the D.C. Circuit issued its decision denying the writ in In re Al-Tamir, though making a few notable holdings along the way that military justice practitioners are likely to find worthy of note. In something of a judicial eye roll, Judge Tatel, who wrote the opinion in both the Al-Nashiri and Al-Tamir cases, started his opinion for the Court by describing the situation as an "unfortunately familiar quandary."
With no real debate over the merits of whether CAPT Waits should have disqualified himself, the only real question the Court confronted was the remedy. Tamir had sought to have his case dismissed outright, a remedy the lower military commission courts had declined in favor of permitting Tamir to seek reconsideration of any decision rendered by the military commission that Tamir could show had been tainted by Waits' misconduct.
At oral argument, the Circuit seemed concerned by the narrowness of the proposed remedy. This led counsel for the government to stipulate from the podium that Tamir could seek to have any ruling reconsidered without making a particularized showing that the ruling was tainted. Tamir suggested that this would still be inadequate, but the Circuit disagreed, finding that the government's concession gave Tamir everything that the vacatur had achieved in Al-Nashiri, "except that it affords al-Tamir the added benefit of allowing him to retain favorable rulings."
A trickier aspect of the case revolved around the job search of Matthew Blackwood, the "supervisory attorney advisor," who had served on Tamir's case for most of the last half-decade. The Court was clearly disturbed by Blackwood's job hunt, but ultimately got stuck on precisely what ethical standards governed an "attorney advisor" in the first place. The government had insisted that attorney advisors should be afforded the lenient rules afforded to judicial law clerks. Tamir had said the ordinary rules of judicial conduct should apply. The Court, for its part, figured that attorney advisors fell somewhere in between and the legal uncertainty over what rules applied proved fatal under the strict mandamus standard that applies in the D.C. Circuit.
The Court, therefore, held that it needed resolve the issue. "We have some concerns about Blackwood’s failure to disclose to his supervising judges his pursuit of outside employment and his use of his work on the commission in his applications," the Court wrote. However, "we cannot say that his choices 'clearly and indisputably' gave rise to a conflict warranting recusal." The Court accordingly denied relief and left the merits to another day.
"Order Granting Petition for Review
No. 21-0184/AR. U.S. v. Joseph P. Popp. CCA 20190333. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:
WHETHER THE ARMY COURT OF CRIMINAL APPEALS HAD JURISDICTION WHERE THE CONVENING AUTHORITY ELECTED TO TAKE NO ACTION ON THE SENTENCE FOR A SPECIFICATION ALLEGING THE COMMISSION OF AN OFFENSE BEFORE JANUARY 1, 2019.
No briefs will be filed under Rule 25."
ACCA decision here.
CAAFlog will hold a virtual panel conversation about the relationship between civilian and military defense counsel on April 27th at 12:00PM EST. Details and link posted at a closer date.
In February, the journal Social Sciences published an article authored by the Chair in Justice Studies at Montclair State University, Dr. Christopher Salvatore, and the Director of Research at the National Police Foundation, Dr. Travis Taniguchi. Their publicly peer-reviewed article is entitled “Military Service and Offending Behaviors of Emerging Adults: A Conceptual Review” and discusses whether military service suppresses or encourages criminality among young adults. Salvatore and Taniguchi ultimately conclude that more thorough research is required, but also offer a fascinating discussion of the research to date.
CAAF finds in favor of the government for their Article 62(a)(1)(B), UCMJ, appeal in Henry. The court finds the military judge abused his discretion in excluding four statements as hearsay. Chief Judge Stucky writes for the court with Judges Ohlson and Maggs separately dissenting for generally similar reasons.
The government offered prior out of court statements as either excited utterances or present sense impressions under Mil. R. Evid. 803. The military judge disagreed as did the Army Court of Criminal Appeals. The basis for the MJs exclusion was a "that the Government failed to lay a proper foundation, specifically that there was insufficient evidence as to when the alleged assault occurred."
There are two ACCA opinions, one in January 2020 and one in June 2020. Judge Stucky tells us that,
At trial, the Government sought to introduce the following four statements for the truth of the matter asserted, under the excited utterance or present sense impressions exceptions to the rule against hearsay:
The MJ had four reasons to exclude the statements.
Since the military judge based his ruling on an incorrect view of the law—requiring proof of personal knowledge and considering each statement in isolation—and a view of the facts that leaves us firmly convinced that a mistake was committed—that there was no evidence as to when the assault occurred or that JH could have observed it—we hold that he abused his discretion by excluding the four statements of JH and KH.
Judges Ohlson and Maggs conclude--my interpretation--that the majority ignore the abuse of discretion standard. While admitting the judge could have ruled either way and been right, the dissenters find the military judges findings were not clearly erroneous and he followed the law.
United States v. Humpel.
A military judge sitting as a special court-martial convicted Appellant, in accordance with his pleas pursuant to a pretrial agreement (PTA), of using drugs. Sentence: Big Chicken Dinner, 2 months, and two sides.
United States v. Huff. Appellant was sentenced to a Bad-conduct discharge, confinement for 24 months for two specifications of possessing CP. Appellant is a winner on his fourth assignment of error.
On appeal, Appellant raises four assignments of error: (1) whether the military judge erred by admitting a certain exhibit over defense objection; (2) whether certain language should be excepted from two specifications; (3) whether the entry of judgment should be corrected to reflect that Charge I and its specification were dismissed “with prejudice;” and (4) whether the convening authority erred by not taking action on Appellant’s sentence as required by Executive Order 13,825, § 6(b), 83 Fed. Reg. 9889, 9890 (8 Mar. 2018), and Article 60, UCMJ, 10 U.S.C. § 860.
And AFCCA laps Navy, see below.
I was perusing the legal ethics in military justice symposium that I posted a while back. I revisited this article about the "house divided" -- tensions between civilian and uniformed defense counsel. Murdough writes: "The military justice system puts its uniformed MDC in this position, and therefore, the military services should provide their MDC with more comprehensive ethical standards and guidelines to include explicitly permitting, if not directing, MDC to share concerns about a CDC’s performance with their client. Congress and the President should reform Article 38 and its implementing regulations to ensure CDC cannot assume that MDC will shore up their inadequate performance." This is a bit strange to read, because every story that I hear is one of an experienced civilian defense lawyer dealing with a new military lawyer. The impediments to gaining experience have been well documented in past posts by Don Christensen. Which is the bigger problem: inexperienced civilian defense counsel or inexperienced uniformed defense counsel? Anecdotes welcome.
Read Don Rehkopf's article, THE CARE AND FEEDING OF YOUR CIVILIAN DEFENSE COUNSEL, here.
CAAF is hearing cases this week and lists them as "Project Outreach." Does anyone know if CAAF is physically travelling?
Prof. Berman at Sentencing Law & Policy, has this note.
The Supreme Court generally does not view itself as in the business of error correction, but it still sometimes finds a few criminal cases in which it just cannot resist fixing what looks like an incorrect ruling below. Today's order list, for example, brings a per curiam summary reversal in Mays v. Hines, No. 20–507 (S. Ct. Mar. 29, 2021) (available here), in which the Court corrects the work of the Sixth Circuit via an eight-page opinion that starts and ends this way:
United States v. Olson.
Appellant was convicted by a military judge of two specifications of rape, one specification of assault consummated by battery, and one specification of making a false official statement. The military judge sentenced appellant to eight years Army rations complemented with a Duck Dinner and two sides.
Appellant raised the following issues: (l) error in admitting prior consistent statements made by the victim; (2) error in admitting testimony as to the victim's character for truthfulness; (3) error in allowing a government expert to testify about matters outside the scope of her expertise during redirect examination; and (4) ineffective assistance of counsel.
The court found the issues to be without merit. The court did address a claim on appeal of UMC but declined to exercise its authority to give relief for the waived error. The court found no prejudicial error for evidence of the victims "virginity" at the time of the offense, or evidence of an STD, or evidence about a polygraph result. In addressing the cumulative error doctrine the court said,
Given the number of errors in this case, we must also consider the cumulative effect of the erroneously admitted evidence. "[A] number of errors, no one perhaps sufficient to merit reversal, in combination [may] necessitate the disapproval of a finding." We review the cumulative effect of plain and preserved errors de nova. Id. We reverse only if we find that the cumulative errors denied appellant a fair trial. Id. In this case there was strong evidence of appellant's guilt and none of the errors related to improperly admitted evidence materially prejudiced appellant's substantial rights. As previously discussed, the strength of the government's case was based upon appellant's devastating admissions to law enforcement, the victim's testimony about the assault, the victim's subsequent demeanor and immediate disclosure to multiple friends. Under the circumstances of this case, we find appellant was not denied a fair trial.
Some readers may remember that I am attempting to study the condition of military prisons, beginning with Marine Corps brigs. To that end, I filed this FOIA request last November: "Please provide all Article 138 complaints filed by prisoners in USMC Brig Camp Pendleton and USMC Brig Camp Lejeune from 1/1/2010 to 11/1/2020." After four months, I received a response denying my request:
"This responds to your November 17, 2020, Freedom of Information Act (FOIA) request for “all Article 138 complaints filed by prisoners in USMC Brig Camp Pendleton.”.... Please be advised, a proper FOIA request must “reasonably describe” the records sought. Requests that seek “any and all” documents/records, “any documents or information,” or “all documents/information” are impermissibly broad and do not comply with FOIA's requirement that the request for records reasonably describe such records. For the foregoing reason, we will administratively close this request."" This was signed by a lieutenant colonel in the Marine Corps with the title of SJA.
I have no doubt that gaining access to these records would take months, if not years, and would require a federal court lawsuit. Why does it have to be this hard? I know that FOIA has been used to great effect in the Bergdahl litigation and in other instances, but I would bet that on the whole it is pretty much useless unless one is willing to expend substantial time and resources. FOIA has not lived up to its promise.
On March 24, 2021, in an unpublished opinion, AFCCA affirmed the findings and sentence in United States v. Rothe. (Opinion here.)
Appellant connected with a girl who he thought was a 14-year-old high school freshman named “Amanda.” However, “Amanda” was an online persona developed by AFOSI agents as part of a child sex sting operation. Over the next two months, Appellant continued to engage in sexual conversations with “Amanda,” including sending explicit photos of himself. The Appellant was arrested and charged with two specifications of attempting to commit a lewd act on a child under the age of 16 in violation of Article 80, UCMJ. A general court-martial composed of officer members convicted Appellant of both specifications and sentenced him to dismissal from the Air Force. On appeal, Appellant raised two issues.
First, Appellant claimed that the military judge should have abated the proceedings after the Government inadvertently deleted raw data from the iPad that AFOSI agents used when posing as “Amanda,” instead of only relying on a PDF file composed of screenshots of their conversations and raw data from Appellant’s phone. For the military judge to abate the proceedings under R.C.M. 703(f)(2), Appellant was required to show that there was no adequate substitute for the missing evidence, that the evidence was essential to a fair trial, and that the defense was not at fault for the missing evidence. See also United States v. Simmermacher, 74 M.J. 196 (C.A.A.F. 2015).
[Insert hyperbole and cynicism] Let us generally look at how the analysis of lost evidence works.
OK, thinking about this some more,
OK, let us try another way.
The AFCCA has denied a petition for a writ of habeas corpus in United States v. Hippolyte.
The United States Court of Appeals for the Armed Forces issued a decision in Petitioner’s case on 1 August 2019, affirming the findings and sentence as approved by this court. United States v. Hyppolite, 79 M.J. 161, 167 (C.A.A.F. 2019). Thereafter, Petitioner did not file a petition for writ of certiorari with the United States Supreme Court, and direct review of Petitioner’s case was complete. On 8 December 2020, the commander of the Air Force District of Washington ordered execution of Petitioner’s dishonorable discharge, having already ordered the other portions of Petitioner’s sentence executed.
Accordingly, the AFCCA held it lacks jurisdiction.
Here are links to the prior decisions in the case: AFCCA, CAAF.
Hyppolyte was charged with five abusive sexual contacts. He was sentenced to seven years and a Duck Dinner with all the trimmings.
The issue at CAAF asked if evidence of one or more charges on the charge sheet could be used and argued under Mil. R. Evid. 404(b) to demonstrate a "common plan or scheme." Now might be a good opportunity to re-read the CAAF opinion for a discussion on how Mil. R. Evid. 404(b)(1) and (b)(2) work at trial.
Use of such evidence to prove a propensity is prohibited. Mil. R. Evid. 404(b)(1). But,
Under M.R.E. 404(b)(2), while evidence of a crime, wrong, or other act may not be used to show character or propensity, it “may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” As the motions judge correctly recognized, we have previously held that one proper purpose of such evidence is to prove the existence of a plan or scheme. United States v. Munoz, 32 M.J. 359 (C.M.A. 1991); United States v. Johnson, 49 M.J. 467 (C.A.A.F. 1998).
The trial judge had admitted the evidence to demonstrate a common "scheme." AFFCA disagreed that the evidence showed a common scheme but found the error harmless. The CAAF affirmed AFCCA but,
[C]onclude[d] that the motions judge and trial judge did not abuse their discretion in their M.R.E. 404(b) ruling. We therefore d[id] not reach the issue of prejudice.
Judge Ohlson filled a dissent in which he argued the AFFCA was right as to the abuse of discretion and the trial error was materially prejudicial.
Oh, and should you ask, the writ was filed in preparation for a federal habeas petition and to show exhaustion of the military appellate system. I suspect they did not petition the Supremes directly because it would be a fruitless exercise--not an issue the court is likely to grant on. Cf. Noyd v. Bond, 395 U.S. 683, 698, n.11 (1969). We do not believe that petitioner may properly be required to exhaust a remedy which may not exist. Cf. Union Pacific R. Co. v. Weld County, 247 U.S. 282 (1918); Township of Hillsborough v. Cromwell, 326 U.S. 620 (1946).
A recent article by CAAFlog intern Ensign Jacob Weaver has been circulated on SSRN:
Restoring the Power of the Convening Authority to Adjust Sentences
"In 2013, Congress abrogated the power of certain military officers to reduce court-martial sentences, thereby eliminating a military defendant’s best hope for efficient and effective relief from common legal errors in the military justice system. While the overhaul of the Uniform Code of Military Justice (UCMJ) in 2016 promised significant reform, it ultimately failed to substantially
reduce common legal errors This Note analyzes how the 2013 and 2016 reforms have combined to prevent military defendants from receiving timely and adequate relief. In light of this analysis, this Note suggests an amendment to the UCMJ that would restore to certain officers a limited authority to reduce sentences based on legal errors. Such a reform ultimately addresses the core concerns that led to the 2013 revision while simultaneously providing an efficient and effective remedy for common legal errors, furthering the UCMJ’s aim of promoting justice and maintaining good order and discipline."
Editor's note: This is a welcome addition to the CA conversation and a fine piece of scholarship, but we should be candid here. This reform is inconceivable in the current political environment.
Just one day after the members of the 90-day Commission were released, the DOD Inspector General released its report on Ronnie J. Booth, former Auditor General of the Navy, finding that he engaged in a "pervasive pattern of sexual harassment and quid pro quo sexual propositions when interacting with female subordinates at the Naval Audit Service." The IG's report states that this pattern of abuse occurred over the course of 20 years.
Elizabeth M. Berecin
United States v. Arnold. “Appellant—a reservist—raised three issues: (1) whether the court-martial lacked jurisdiction to impose confinement on Appellant because his recall to active duty for trial was not properly authorized by the Secretary of the Air Force; (2) whether Appellant’s conviction violated the Fifth Amendment’s Double Jeopardy Clause; and (3) whether Appellant was entitled to new post-trial processing due to errors in the post-trial process. We resolved the first two issues against Appellant, but we found that post-trial errors required new post-trial processing and action.” This was a case recalled to AFCCA based on completion of actions on remand.
United States v. Babian. There was no illegal pretrial confinement as argued by the Appellant.
United States v. Rothe. “Appellant raises two issues before this court: (1) whether the military judge erred in denying a defense motion to abate the proceedings due to the government’s destruction of evidence; and (2) whether the evidence is factually insufficient to sustain a guilty finding under either a subjective or objective test for the defense of entrapment.” (More to come on this one later in the week.)
United States v. Padilla. The Appellant raised four issues, but the case was remanded to correct various post-trial errors.
United States v. Berrian. “Appellant asserts two assignments of error [AOE]: (1) that the military judge abused his discretion by denying a challenge for cause for implied bias of a potential member with extensive experience as a victim advocate and (2) that it was plain error to admit a hearsay statement as a prior consistent statement. We find no prejudicial error and affirm.” This is a facts-based case, and the facts support no abuse of discretion.
PENDING APPELLATE CASES
United States v. Souders, trial at RAF Mildenhall. Souders was found guilty for viewing indecent material and possessing and viewing child pornography but was acquitted of attempted sexual assault of a child and one count of committing a lewd act on a child. Actions which got him nine years and a duck dinner.
CAAFlog 1.0 Archive
-Current Term Opinions
Joint R. App. Pro.
Global MJ Reform
LOC Mil. Law Resources