On February 9, 2021, the Air Force Court of Criminal Appeals (ACCA) affirmed the sentence of Appellant Jacob T. Orosco. Appellant was sentenced by a military judge sitting as a general court-martial to a bad-conduct discharge, confinement for 14 months, forfeiture of all pay and allowances, and reduction to E-1. In accordance with his pleas and pretrial agreement (PTA), Appellant was found guilty of four specifications of assault consummated by a battery, in violation of Article 128, UCMJ.
Orosco Opinion Here
NYT has a report on a social media video regarding military sexual assault that has been viewed over a million times, and which became so "viral" that it elicited a response from SECDEF.
NYT Article Here.
Initial video about her preparing to testify about her assault:
TikTok Video Here.
Video following her testimony where she learns that her alleged assaulter will not be separated:
Marine Corps Twitter Response Here.
NMCCA released its unanimous opinion in United States v. Nelson, siding with Nelson, the appellant, and setting aside the conviction.
Nelson opinion here.
Nelson presents two issues of particular interest: (1) the adequacy of Article 31(b) warnings and (2) pleading requirements for an Article 133 charge that incorporates, or partially incorporates, another—in this case, an offense under Article 107, False Official Statements.
United States v. Hale
On February 4, 2021, in an unpublished opinion, AFCCA affirmed the findings and sentence of Airman Dylan S. Hale (Appellant).
Hale opinion here
Background & Convictions
Two incidents led to Appellant’s charges, both of which occurred the year after his enlistment and when he was 18-years-old. First, Appellant met a 16-year-old male, RV, when volunteering at a local Civil Air Patrol program. After Appellant sent RV multiple sexually themed text messages, RV and his father involved the police, who assumed RV’s identity for the purposes of communicating with Appellant. The police also introduced a fictitious minor into the conversation, who was purported to be a 14-year-old foster child. During their conversations, Appellant asked for photos of RV’s penis, and he made plans to meet the two boys at a local mall in order to have sex. When Appellant arrived at the mall, he was met by local law enforcement and AFOSI agents, leading to his convictions of two specifications of attempted sexual assault of a child and one specification of attempted receipt of child pornography. After Appellant’s arrest, AFOSI agents found 61 images of child pornography on Appellant’s external hard drive, leading to his conviction, contrary to his plea, of possession of child pornography.
Second, several months after Appellant’s arrest, he attended an on-base party where he became intoxicated. At the party, Appellant became frustrated with an acquaintance, CJC, after he denied that they had sex. Appellant tried to grab CJC’s head, missed, and then grabbed him by his shirt. Later that night, Appellant attempted to hit CJC with his vehicle, but instead struck CJC’s friend. Appellant then tried to flee the base—but the gate was closed. Just before he was detained by law enforcement at the gate, Appellant told his friend, CC, who had been with him all night, to lie about what happened. However, both the hit-and-run and their conversation was recorded by Appellant’s dashboard audio-visual recorder. These events led Appellant being convicted of two specifications of simple assault, two specifications of assault consummated by a battery, one specification of operating a vehicle while drunk, one specification of wrongfully leaving the scene of an accident, and one specification of willful dereliction of duty.
Finally, following the party, AFOSI agents searched a safe in Appellant’s room and found THC, along with two substances known as 3-FPM and dimethocaine. Appellant admitted that he ingested the latter two substances despite knowing that he was prohibited to do so. This led to his convictions of wrongful possession of THC and failure to obey a lawful general regulation proscribing possession of substances to alter mood or function.
 3-FPM is a chemically altered form of an appetite suppressant that is intended to boost mood and self-esteem. Dimethocaine is an anesthetic that produces effects similar to cocaine.
Scholarship Saturday: Our existing authorizations for use of military force (AUMF) are dead letter, they need to be repealed and replaced
On September 18, 2001, one week after 9/11, incensed by those “acts of treacherous violence committed against the United States and its citizens,” Congress passed a joint resolution which reads, in relevant part:
[T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
2001 Authorization for Use of Military Force (AUMF) (115 Stat. 224).
That joint resolution, Public Law 107-40, has been cited as our jus ad bellum for warfare all over the globe. On October 9, 2001, George W. Bush tied combat operations in Afghanistan explicitly to that provision. House Document 107-31, 107th Congress, 1st Session. Twelve years later, on June 14, 2013, the Obama administration cited that Public Law again as its justification for providing “limited technical support to French forces” operating in Somalia against the terrorist group, Harakat al-Shabaab al-Mujahideen (translates as “Mujahideen Youth Movement,” commonly called “al-Shabaab”). That latter use of the authorization aptly illustrates the “slippery slope” nature of how the Executive Branch has employed Public Law 107-40.
Tuesday, February 16, 2021
Order Granting Petition for Review
No. 21-0086/AR. U.S. v. Ronald C. Givens. CCA 20190132. 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 MILITARY JUDGE ERRED IN DENYING THE DEFECTIVE PREFERRAL/UNLAWFUL COMMAND INFLUENCE MOTION ON PROCEDURAL GROUNDS.
ACCA opinion here.
A military judge sitting as a general court-marital convicted appellant, consistent with his plea, of one specification of assault consummated by a battery, in violation of Article 128, Uniform Code of Military Justice, 10 U .S.C. $ 928 (2012 & Supp. IV 2016) [UCMJ]. On 1 March 2019, an enlisted panel sitting as a general court martial convicted appellant, contrary to his pleas, of one specification each of making a false official statement, larceny of military property, assault consummated by a battery, communicating a threat, and child endangerment, in violation of Articles 107, 121, 128 and 134, UCMJ. Appellant was sentenced to confinement for 90 days, forfeiture of $1,680 pay per month for one month, reduction to E-1, and a bad-conduct discharge. Appellant was acquitted of one specification of assault consummated by a battery and one specification of adultery in violation of Articles 128 and 134, UCMJ.
ACCA does not discuss the UCI claim (likely a Grosty?. The court does however set aside the reckless endangerment conviction, reassesses the sentence for the remaining convictions, and approves the sentence.
United States v. Cunningham is headed to AFCCA.
The sentencing phase of the court-martial of Senior Airman James T. Cunningham ended late Feb. 18, with the military judge sentencing SrA Cunningham to serve 18 years in a military prison, be reduced to the grade of Airman Basic, forfeit all pay and allowances, and to be discharged from the United States Air Force with a Dishonorable Discharge.
Note. ACCA’s pending cases are available here (272).
United States v. Valentin. Appellant alleged the MJ abused his discretion because he did not grant a mistrial after the government introduced uncharged misconduct through its witness. Appellant was charged with diverse specifications and occasions of child sex offenses and CP. There were 14 specifications alleging a separate specific act and time.
1. Pretrial asked that the witnesses be limited to talking about only the one specification at a time.
2. The TC twice said that’s what they were going to do.
4. While TC tried to limit the testimony the witness “Nonetheless, strayed into general descriptions of abusive behavior—to which the defense objected.
5. After the fifth objection, the defense moved for a mistrial—which was denied.
6. “The military judge denied the motion for mistrial and deferred issuing an instruction, electing to hear “how the rest of the testimony goes” before determining “what if anything needs to be stricken from testimony.””
7. ACCA found the “To the degree such testimony was improper, we find the military judge’s remedial actions and provided instructions appropriately ameliorated any prejudice to appellant and ensured the fairness of the proceeding.”
8. Affirmed, because
Appellant has failed to make any colorable showing that the members were unable to disregard the inadmissible evidence in accordance with the military judge’s instructions or the military judge’s remedial actions failed to protect the fairness of appellant’s trial. See Short, 77 M.J. at 151. Appellant has failed to establish clear evidence that the military judge abused his discretion in denying appellant’s motion for a mistrial, and we “will not disturb [his] decision.” Short, 77 M.J. at 152.
9. The ACCA relies on the appellate trope that the members were presumed to have followed the MJ’s instructions.
"This is an action for collateral review of an unconstitutional conviction by a general court-martial. The case raises two basic due process issues: (a) whether the military courts erred in failing to remedy unlawful command influence (UCI) by former President Donald J. Trump and the late Senator John S. McCain, and (b) whether the military judge had a duty to disclose that he had applied for a lucrative job with the Department of Justice (DOJ). The scandalous meddling in a specific case by leaders of the political branches—one of whom was Commander in Chief of the armed forces—would never be tolerated if the proceeding had been a criminal prosecution in this or any other federal district court and should not be tolerated in a court-martial. The circumstances surrounding the second issue are more egregious than those presented in In re Al-Nashiri, 921 F.3d 224 (D.C. Cir. 2019)."
For your PACER convenience, the case is: 1:21-cv-00418
"While one might think that every criminal defendant in the United States has the opportunity to eventually appeal their conviction to the Supreme Court, Congress has largely blocked the path of perhaps the most deserving category of defendants: military personnel convicted at courts-martial. This is because under the 1983 law granting certiorari jurisdiction over military cases, only court-martial convictions that are granted review by the nation’s highest military court may be appealed; those in which that court denies review are excluded from access to the Supreme Court.
In this Article, we argue that this jurisdictional limitation is both bad policy and unconstitutional for several reasons, and that Congress should remove it. Whether or not a court would find the limitation unconstitutional is not the point. Congress has an independent obligation to avoid violating constitutional norms. By delegating to an executive branch court—the United States Court of Appeals for the Armed Forces (CAAF)—the power to determine the Supreme Court’s jurisdiction over court-martial appeals, Congress violated the separation of powers. In carving out a comparatively small class of cases as non-reviewable for the ostensible purpose of reducing the Supreme Court’s workload, Congress acted irrationally and violated equal protection. By making this category nearly coterminous with the universe of military cases (since almost all are denied review by CAAF), and conferring on that court a vague and non-reviewable standard for granting review, Congress violated the Exceptions Clause. Finally, by providing for Supreme Court jurisdiction over cases in which a Judge Advocate General certifies a case for review, but not over those in which an accused seeks review, the system unfairly provides asymmetric access to justice in favor of the government."
Yesterday I was perusing Gene Fidell's Military Justice: A Very Short Introduction and noticed a startling figure: there are about 50x more NJPs than there are courts-martial. I also happened to be reading Criminal Municipal Courts by Alexandra Natapoff, wherein she concludes: "These hybrid institutions...pose thorny conceptual challenges: they are stand-alone judicial entities that are also arms of municipal government operating under reduced constitutional constraints as they mete out criminal convictions. As such, they create numerous tensions with modern norms of due process, judicial independence, and other traditional indicia of criminal court integrity." Could the same be said of NJPs? While they may not be technically "criminal," they certainly purport to be "punishing."
No one talks much about what happens in these institutions, but maybe we should start. Anecdotes welcome!
CAAF today issued its opinion in United States v. Harpole on revisit. In this per curiam opinion Judge Maggs wrote for himself and Senior Judge Crawford concurring in the judgment but for different reasons.
At Harpole's visit to CAAF they remanded for a Dubay hearing to get the facts on a suppression issue not raised at trial but raised on appeal via an IAC claim.
Appellant claims the statements he made to Yeoman First Class (YN1) HN, the victim advocate, were in fact inadmissible at his court-martial because she did not first advise him of his rights
The question is, on the facts, whether a victim advocate was required to give Article 31(b) warnings, failed to do so, which made the Appellant's statements to her inadmissible. Agreeing with robust findings of the Dubay judge, CAAF finds
YN1 N did not do anything that suggested that she was acting for law enforcement or disciplinary purposes: she did not take notes, order Appellant or SNBM Childers to answer questions or write statements, or reach out to the Coast Guard Investigative Service with a report. Harpole, 79 M.J.
On the other hand, Judge Maggs took a different view.
I also would affirm the CGCCA, but I would do so on the basis of the Government’s first argument. At a DuBay1 hearing, a military judge found as a fact that Appellant did not make any incriminating statements in response to the victim advocate’s questions. That should be the end of the matter. I would not use this case to set a precedent on the much more complicated question of whether victim advocates act for law enforcement or disciplinary purposes.
The CAAF may well be right, but I think they are wrong on policy grounds (which I realize they do not decide).
"The United States needs to improve accountability for its service members’ war crimes. President Donald J. Trump dangerously intensified a growing national misunderstanding regarding the critical nexus between compliance with the laws of war and the health and efficacy of the U.S. military. This Article pushes back against such confusion by demonstrating why compliance with the laws of war, and accountability for violations of these laws, together constitute vital duties owed to our women and men in uniform.
This Article reveals that part of the fog of war surrounding criminal accountability for American war crimes is due to structural defects in American military law. It analyzes such defects, including the military’s failure to prosecute war crimes as war crimes. It carefully highlights the need for symmetry between the disparate American approaches to its enemies’ war crimes and its own service members’ battlefield offenses.
To help close the current war crimes accountability deficit, we propose a comprehensive statutory remedial scheme that includes: the enumeration of specific war crimes for military personnel analogous to those applicable to unlawful enemy belligerents as found in the Military Commissions Act; the formal addition of command responsibility liability doctrine to military criminal law; the provision of criminal defenses relevant to war crimes allegations; and the extension of court-martial jurisdiction over all enemy belligerents using the same enumerated war crimes proposed for U.S. service members."
"Racism has long corrupted American military justice – famously exemplified by the 1917 Houston riots, which resulted in the Army’s summary execution of 19 African American soldiers after sham trials. In 2019, the Government Accountability Office found that in the Army, Navy, and Marine Corps, black service members “were about twice as likely as white servicemembers to be tried in general and special courts-martial.”
Such disparities still exist within the American military’s criminal justice and disciplinary systems, and demand action.
This is precisely why the National Institute of Military Justice, HOFSTRA University - Maurice A. Deane School of Law, and Southwestern Law School's Armed Forces Law Society are co-hosting this important event.
Moderator Rachel Van Landingham - NIMJ President-elect, Professor of Law, Southwestern Law School, Lt Col, USAF (ret.), will lead a candid discussion with an impressive panel including:
Please join us on Wednesday, February 24th at 6:00 p.m. Eastern/3:00 p.m. Pacific.
Click here or use ZOOM ID: 967 4003 3994 and Passcode 165249."
Event Link here.
(AP Photo/Ted S. Warren) reported in The Times of Israel, Survey finds 3 in 10 Republicans believe QAnon child sex-trafficking theory. 15 February 2021.
In addition to crediting the photographer, the paper has this further comment to the photo, "A person dressed as Lady Liberty wears a shirt with the letter Q, referring to QAnon, as protesters take part in a protest, Wednesday, Jan. 6, 2021, at the Capitol in Olympia, Wash., against the counting of electoral votes in Washington, DC, affirming President-elect Joe Biden's victory."
Without the uniform nothing wrong, but with it . . . ?
Cheers, Phil Cave.
VOLUME 49 | ISSUE 1 | FALL 2020
TABLE OF CONTENTS
Table of Contents for Notes
Legal Ethics and Modern Military Justice
Is Demilitarizing Military Justice an Ethical Imperative for Congress, the Courts, and the Commander-in-Chief
By Dan Maurer
Fears of Tyranny: The Fine Line Between Presidential Authority over Military Discipline and Unlawful Command Influence Through the Lens of Military Legal History in the Era of Bergdahl
By Joshua Kastenberg
Court-Martial Sentences: Time for More Transparency
By Christopher E. Martin and Timothy P. Hayes, Jr.
A House Divided: The Unique Ethical Dynamic of Civil and Military Co-Counsel Relations in Court-Martial Defense
By Robert E. Murdough
Judicial Disclosure and the Judicial Mystique
By Michel Paradis
At the Elbow and Under Pressure: Legal, Military, and Intelligence Professionals
By Dakota S. Rudesill
Probable Cause and the Provable Cause: Bridging the Ethical Gap that Exists in the Military Justice System
By Mitchell M. Sullivan
Ordering Injustice: Congress, Command Corruption of Courts-Martial, and the Constitution
By Rachel E. VanLandingham
One of the more prominent means by which our nation acquires commissioned officers is through a system of service academies and senior military colleges. Specifically, Congress has established four service academies and acquiesced to a fifth: the Military Academy, Naval Academy, Air Force Academy, and the Merchant Marine Academy are all creatures of statute – 10 U.S.C. § 4331, 10 U.S.C. § 6951, 10 U.S.C. § 9331, 46 U.S.C. § 51301, respectively. There is no statute which establishes the Coast Guard Academy, but Congress has acknowledged its existence and provided for its regulation in 14 U.S.C. § 181. Additionally, in 10 U.S.C. § 2111a(f), Congress designated six “senior military colleges” whose graduates may, if they desire, enter active duty as commissioned officers. Those senior military colleges are: Texas A&M University, Norwich University, Virginia Military Institute, The Citadel, Virginia Polytechnic Institute and State University, and the University of North Georgia.
To aid in the development of aspiring officers, each these institutions employ “honor systems” to instill discipline in their corps of cadets or midshipmen. Those systems have been busy of late. For example, a couple of weeks ago, the Air Force Academy announced that it is reevaluating its honor program on account of a recent cheating scandal involving 249 cadets. West point is embroiled in its own cheating scandal, involving 73 cadets, that has so shaken the institution that one of its own professors, Tim Bakken, told NPR recently that, in his view, the cheating at West Point is emblematic of a military establishment which, “by many accounts, has been very dishonest with the American public over the last 75 years. And that has only resulted in failed wars or, if we don't like that expression, we certainly have not won any of the last four wars we've fought since 1945.”
We have an update on the ongoing case of a military judge's recusal.
CAAF has decided United States v. Brown, in which the court affirms NMCCA's decision that it had potential jurisdiction over Brown's petition for a writ.
The NMCCA decided United States v. Adad, a case in which Appellant submitted no errors. The court itself identified two issues one of which we should talk about: that “the trial defense counsel argued for a bad-conduct discharge [BCD] without making a sufficient record that such advocacy was pursuant to Appellant’s wishes.”
During his sentencing argument, the defense counsel explicitly asked the military judge to “give [Appellant] eighteen months of confinement and a bad-conduct discharge.” The defense counsel also made several similar statements including, “[Appellant’s] place is not in the Navy anymore,”6 and “we agree a punitive discharge is the right way to go . . . .”
In the Navy we call this a “BCD striker” case. The court acknowledges a likely tactical move but, “Nevertheless, where defense counsel argues for “a punitive discharge, even as a tactical step to accomplish mitigation of other elements of a possible sentence[,] counsel must make a record that such advocacy is pursuant to the accused’s wishes.”
The court concludes on a point with which I disagree, “despite defense counsel’s explicit argument for a BCD, the record is silent regarding Appellant’s wishes concerning imposition of a punitive discharge. That is error.” To me this is not error unless the appellant raises it and proves it—which in this case he did not.
*A Navy bootcamp graduate who goes to a command without attending “A” School (AFSC, AIT, MOS) training for a particular rating (job skill), may, once they report to their command begin a process of on-the-job training and specialization for a rating—striking for the quartermaster rating perhaps.
In United States v. Uribe, a divided court upheld Staff Sergeant Ryan Uribe’s conviction on one specification of Article 120, UCMJ, despite his claim that the military judge abused his discretion by rejecting a joint motion to recuse him.
The USNI News has the redacted record of trial in United States v. Gallagher—it is 4205 pages.
Cheers, Phil Cave.
SUPREME COURT OF MONTANA Montana v. Mercier (a pre-COVID case).
QP: Was Mercier denied his right under the United States and Montana Constitutions to confront witnesses against him when the State presented a foundational witness in real time by two-way video-conference? The court held that “that this two-way video-conferencing testimony violated the Confrontation Clause[.]
Courts have interpreted the Supreme Court's opinion in Maryland v. Craig, as creating an exception to the Confrontation Clause if two prongs are satisfied: it must first be shown that denial of physical face-to-face confrontation is necessary to further an important public policy....The second prong of the Craig analysis requires the trial court to determine that reliability of the testimony is otherwise assured. State v. Mercier, 2021 WL 248487 (Mont. 2021).
The State urges that the nature of the testimony—foundational with no substantive force—weighs in favor of approving the video testimony. However, nowhere in the text of the Confrontation Clause is there language limiting the type of testimonial evidence to which the right to physical confrontation applies....
The court noted that “[Craigs] continuing utility has been questioned in two major respects; first, whether its analysis extends to two-way video procedures has led to a circuit split in the federal courts. Slip op. at 12 (citations omitted). The court found the error harmless and affirmed the conviction and sentence.
U.S. DISTRICT COURT
An interesting approach. Apparently, this was “not a real good warrant.” The "court evaluates good faith first, probable cause second. The nature of the inquiry sets up the second answer. If the GFE applies, PC is close enough; if not, probable cause isn’t likely there." See United States v Guerra, 2021 U.S. Dist. LEXIS 21080 (S.D. Tex. Feb 2, 2021).
My pet project this spring is to investigate prison conditions in the brigs and at Leavenworth. Hopefully next week I will be receiving the results of a FOIA request for all Article 138 complaints at the Marine Corps Brigs. My motivation was the seemingly black box of the prisons, and a series of ACCA opinions dispensing with conditions of confinement claims in footnotes (without any reference to the basis for the claim).
Thus, I want to commend AFCCA for the below opinion (download below) in Merritt. The prisoner in this case has a very weak claim for an Eighth Amendment violation--a failure to provide sterile water for his CPAP machine. Nevertheless, the court engaged in an extensive analysis of the relevant law and decided the case. The legal discussion alone was very helpful as a guide for practitioners. The dissenting judge also raised important issues with the various doctrinal bars to relief in this area. The most significant bar, of course, is the administrative exhaustion requirement. A crusty CPAP machine does not cry out to heaven for redress, but that is not the point. The point is that the same difficulties in getting relief for this claim apply also to serious claims (at least with respect to exhaustion).
CAAFlog 1.0 Archive
-Current Term Opinions
Joint R. App. Pro.
Global MJ Reform
LOC Mil. Law Resources