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."
More evidence law, search and seizure law, and law on waiver. Analysis forthcoming.
No. 20-0327/NA. United States, Appellee/Cross-Appellant v. Stephen A. Begani, Appellant/Cross-Appellee. CCA 201800082. Notice is 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 issue:
WHETHER APPELLANT WAIVED OR FORFEITED THE RIGHT TO ASSERT THAT HIS COURT-MARTIAL VIOLATED HIS RIGHT TO EQUAL PROTECTION.
No. 20-0325/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.
Written over 30 years ago:
"Anyone tracing the path of military law over the last several decades will be struck by two phenomena: the extent of change that has overtaken the system . . . and the resistance to change. Much of the change has been justified—or condemned— under the rubric of 'civilianization'—the 'C word,' mere utterance of which still makes the occasional senior military lawyer see red."
One might say that the culture of change...has not changed.
Does CAAF have the best looking opinions of any federal court? Some on #appellatetwitter think so:
The CAAF opinions used to be published in a horrific courier font, but were changed within the last few years. Credit must go to James Young, longtime senior legal advisor to the Chief Judge, who crusaded for this change (even studying books relating to readability of fonts).
In United States v. Gilliam, ACCA held that the facts were insufficient to sustain a conviction for child rape. ACCA found the witness credible--believing that the digital penetration occurred--but could not be satisfied that the penetrative acts occurred during the time charged.
Circulated today on SSRN, by Prof. Zachary Price:
"While scholars have explored at length the constitutional law of office-holding with respect to civil and administrative offices, recent scholarship has largely neglected parallel questions regarding military office-holding. Even scholars who defend broad congressional authority to structure civil administration typically presume that the President as Commander in Chief holds greater authority over the military. For its part, the executive branch has claimed plenary authority over assignment of military duties and control of military officers.
This pro-presidential consensus is mistaken. Although the President, as Commander in Chief, must have some form of directive authority over U.S. military forces in the field, the constitutional text and structure, read in light of longstanding historical practice, give Congress extensive power to structure offices, chains of command, and disciplinary mechanisms through which the President’s authority is exercised. In particular, just as in the administrative context, Congress may vest particular authorities—authority to launch nuclear weapons or a cyber operation, for example, or command over particular units—in particular statutorily created offices. In addition, although the Constitution affords Presidents removal authority as a default disciplinary mechanism, Congress may supplant and limit this authority by replacing it with alternative disciplinary mechanisms, such as criminal penalties for disobeying lawful orders.
By defining duties, command relationships, and disciplinary mechanisms in this way, Congress may establish structures of executive branch accountability that promote key values, protect military professionalism, and even encourage or discourage particular results, all without infringing upon the President’s ultimate authority to direct the nation’s armed forces. These conclusions are relevant pending Supreme Court cases regarding military discipline and presidential removal authority. They also bear directly on pending legislative proposals to vest authority over cyber weapons, force withdrawals, or nuclear weapons in officers other than the President. From a broader perspective, they shed new light on separation-of-powers debates over the “unitary” executive branch, conventions of governmental behavior, the civil service’s constitutionality, and Reconstruction’s historical importance."
Take this anonymous poll and give us your perspective.
Readers will remember that in 2019, the D.C. Circuit vacated nearly five years of proceedings in the Al-Nashiri military commission case after finding that Col Vance Spath, USAF, violated the rules of judicial conduct by secretly negotiating for a job as an immigration judge while on the bench. As some readers predicted at the time, the Circuit's decision could affect other military justice cases, if military judges had similarly not been careful or candid about their post-retirement job hunts. Well, that day has come.
In the case of Naswan Al-Tamir, another Guantanamo military commission case, the alleged job searches of Captain Kirk Waits, USN, and the long-serving "attorney advisor" on the case (i.e. judicial law clerk) have again raised the concern of the D.C. Circuit. Back in November, the D.C. Circuit issued a stay of proceedings in Al-Tamir's case in order to review the allegations, but then held its own proceedings in abeyance in order to give the Court of Military Commission Review (CMCR) an opportunity to review the merits. In April, the CMCR denied Al-Tamir's challenge on the merits and the Circuit, shortly thereafter, docketed Al-Tamir's case for briefing and argument.
Last Wednesday, Al-Tamir filed his merits brief, in which he argued:
Mandamus may be drastic, and may impose societal costs, but the remedy and the costs are necessary and worth it when the repeated failures of the hybrid military commissions system remain unredressed by the CMCR. This Court decided mandamus was available and appropriate under the circumstances in Al-Nashiri. The same is true here because the same conflict exists here. Al-Nashiri controls. No meaningful distinction exists.
The government's brief is due on September 15, 2020, with the reply due on October 15, 2020. Oral argument has not yet been scheduled but will likely be this winter with a decision following sometime in 2021.
Don Rehkopf posted this as a comment regarding the Leach case, but it's worthy of highlighting:
1) If the Court were at all interested in stopping/preventing Brady violations, they could have and respectfully should have taken corrective action and done what needs to be done - indicate that such on-going issues will not be tolerated, period;
2) Blaming the Defense Counsel for the Brady violation for not having the crystal ball of precisely knowing what the complainant told the government, is even more problematic, if not downright disingenuous. If indeed the Court wanted to remedy Brady violations, then here was proof-positive (by the Court's own findings), of IAC; and,
3) Once again, this Court gives a "pass" to outrageous, improper arguments by the TC [cf. Voorhees], which brings to mind the words of federal judge Jerome Frank:
"If we continue to do nothing practical to prevent such [prosecutorial] conduct, we should cease to disapprove it. For otherwise it will be as if we declared in effect, Government attorneys, without fear of reversal, may say just about what they please in addressing juries, for our rules on the subject are pretend-rules. If prosecutors win verdicts as a result of ‘disapproved’ remarks, we will not deprive them of their victories; we will merely go through the form of expressing displeasure. The deprecatory words we use in our opinions on such occasions are purely ceremonial.' Government counsel, employing such tactics, are the kind who, eager to win victories, will gladly pay the small price of a ritualistic verbal spanking. The practice of this court- recalling the bitter tear shed by the Walrus as he ate the oysters-breeds a deplorably cynical attitude towards the judiciary." United States v. Antonelli Fireworks Co., 155 F.2d 631, 661 (2nd Cir. 1946) (Frank, J., dissenting)."
Recently, the CAAF granted review of United States v. Garcia. Below is a summary of the AFCCA's opinion and my view on whether the ruling is correct.
Schlueter & Schenck Part II: A WHITE PAPER ON NATIONAL, MILITARY, AND COLLEGE REPORTS ON PROSECUTION OF SEXUAL ASSAULTS AND VICTIMS’ RIGHTS
In response to recent calls for major reforms to the American military justice system, which are apparently based on continuing Congressional concerns about sexual assaults in the military, the authors present statistical data on sexual assaults from a number of sources: national crime statistics; military crime statistics; crime statistics from several states, and statistics from a university. The authors also present information on the tremendous strides that have been made in recent years to protect the rights of military victims of sexual assault, noting that some of those rights are not found in federal or state criminal justice systems. Finally, the authors conclude that the rate of sexual assaults in the military and the prosecution of those offenses is not out of line with the experiences of other civilian jurisdictions. They recommend that Congress take careful and very deliberative steps in deciding what, if any, major changes to make to the American military justice system.
David Schlueter & Lisa Schenck
CAAF Rules 19(a)(7)(A):
"Article 62, UCMJ, Appeals. Where a petition has been granted in a case involving a decision by a Court of Criminal Appeals on appeal by the United States under Article 62, UCMJ, 10 USC § 862, no further pleadings will be filed and the Court will, whenever practicable, give priority to such cases."
Does anyone know the reasons for this practice, recently implemented in the Garcia grant?
At trial, the military judge denied a defense motion to suppress the results of a command authorized search. On appeal NMCCA found error and took corrective action. The Government appealed and CAAF had before it three issues.
"I. Whether the lower court erred in overturning the military judge’s admission of evidence where the military judge found the official who authorized the search was the acting commander with full authority and control over the remain behind element, except for authority to impose nonjudicial punishment and convene courts-martial?
II. Whether the lower court erroneously applied the exclusionary rule under Mil. R. Evid. 311(a)(3) by failing to appropriately balance the benefits of deterrence against the costs to the justice system, and thereby erred in overturning the military judge’s decision not to apply the exclusionary rule?
III. Whether the lower court erred in finding the good-faith exception did not apply where this court has, in United States v. Chapple, 36 M.J. 410 (C.M.A. 1993), held the exception applies even when the individual issuing that search authorization lacked authority under Mil. R. Evid. 315(d)(1), and here law enforcement reasonably believed the acting commander was authorized to issue search authorizations?"
In July 2018, Deshaun Allen (“Appellant”) was convicted in civilian court for theft and assault, conspiring with other Sailors to use cocaine aboard USS NIMITZ, using and distributing cocaine aboard USS NIMITZ, and using marijuana.
Appellant pleaded guilty by various methods, including by exceptions. For example, among other charges, Appellant was charged with “introduction and distribution of cocaine.” Appellant pleaded guilty to this charge by excepting the words “introduction and,” and therefore Appellant only pleaded guilty to distribution of cocaine.
The military judge failed to address the excepted language in the announced finding. Appellant’s counsel did not object to this--rather, they explicitly stated the findings announcement was correct.
Appellant’s R.C.M. 1105 submission raised two issues: (1) whether the military judge had improperly used evidence from Appellant’s co-conspirators’ cases to sentence Appellant, and (2) whether Appellant’s sentence was disproportionate to the actual harm caused by Appellant’s conduct. The Court also addressed whether the military judge’s error to address the excepted language materially prejudiced Appellant’s rights.
The U.S. Air Force Court of Criminal Appeals affirmed Military Judge Jimenez’s finding that Brandon Leach had violated Article 120 of the Uniform Code of Military Judge, 120 U.S.C. § 920. Appellant Leach raised nine (9) issues on appeal, however the Court found that the Appellant was not prejudiced and that the Military Judge had correctly decided the case.
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