Important suggestion from Kevin Barry

Greetings from Chicago, which today is living up to its "Windy City" nickname.

For those of you who don't habitually read the comments on CAAFlog, I wanted to devote a post to passing along a suggestion from CAPT Kevin Barry, USCG (Ret.), a distinguished former Coast Guard Court judge and a distinguished current civilian practitioner:

[I]t seems to me that a return to the once common practice of the trial defense counsel filing an "Art. 38c Brief" is in order. Since the revamp of the appellate review process (and the elimination of the SJA Review in favor of the SJA Recommendation) in 1983, it has become common for TDC to file only clemency materials, and the practice of filing a brief of errors for the consideration of the convening authority seems to have become the exception rather than the rule.

It is difficult for appellate defense counsel to get a good handle on what really went wrong at trial simply by reading the record. If the TDC files a brief identifying the issues, that brief will not only be available for the convening authority and the SJA to consider if they will, but to educate appellate counsel as to issues that should be considered for argument before the CCA. It does take some time, but it is an enormously helpful document and could make be the difference between appellate relief being granted or not.

Wise words from a wise man.

Now I'm off for a drink at what, according to one Chicago bus driver, is the Guinness Book of World's Records' reigning champion in the "longest bar" category.

--Dwight Sullivan

U.S. v. Erickson - This is not your Father's Government Argument Case

Though this recently granted case has a superbly drafted question presented, while CAAFlog was traveling I thought I'd add that, I predict it will be yet another in a long line of government argument cases that gets close . . . but no cigar. The case, U.S. v. Kelly S. ERICKSON. No. 06-0715/AF, was granted review on the following issue:

WHETHER THE TRIAL COUNSEL COMMITTED PLAIN ERROR DURING HIS SENTENCING ARGUMENT BY COMPARING APPELLANT TO OSAMA BIN LADEN AND ADOLPH HITLER AND BY APPEALING TO POTENTIAL RELIGIOUS BIASES OF THE MILITARY JUDGE BY COMPARING APPELLANT TO THE DEVIL AND ARGUING THAT APPELLANT IS GOING TO HELL.

Great issue, but like its predecessors, with a notable exception in U.S. v. Fletcher, 62 M.J. 175 (CAAF 2005), courts don't think government counsel have much sway over jurors. In a strange reversal of what I learned in PSYCH 101 many years ago, courts generally hold that the judge's dry oral and written instructions, contrasted with government counsel's impassioned arguments, hold more sway with jurors. Someone really ought to include some sociological / psychological research in one of these government argument cases. Since the Bin Laden argument is a go to argument these days, I would think this is the perfect case.

CAAFlog on the road

I'm going to be on the road for most of this week. I probably won't have a chance to update CAAFlog, but I hope that the No Man, the Columbus Clipper, the Super Muppet of Appellate Advocacy, and Guert will fill the void.

My first stop is Chicago, where I plan to visit the ABA's Museum of Law. It isn't exactly germane to CAAFlog's mission, but I'll probably post a review of the museum nevertheless. While I'm in Chicago, I also hope to take a sidetrip to Oak Park to visit Ernest Hemingway's birthplace. That may inspire me to write my Museum of Law blog entry in a "terse style using King James biblical cadences with an awful lot of and's and very few commas in . . . rhythmic sentences," as one commentator has described Papa's writing style. But probably not. This weekend I'll be in Philly for the Army-Navy game. Go Navy! Beat Army!

--Dwight Sullivan

New cert petition (pun intended)

Michael New, he of the refusal to wear the UN blue beret fame, has filed a cert petition at the Supreme Court. No. 06-691. The petition seeks review of the D.C. Circuit's denial of his collateral attack on his court-martial conviction. The questions presented are prepared in Garnerian deep issue style and raise four distinct issues. The one with the most widespread significance is issue 2:

2. Should this Court reconsider and modify, or even overrule, the “full and fair consideration” standard of review governing collateral attacks on court-martial convictions established in Burns v. Wilson, 346 U.S. 137 (1953)?

This issue could have enormous impact on Article III courts' collateral review of court-martial convictions. It could be especially significant in capital cases.

The National Institute of Military Justice (NIMJ) has weighed in with an amicus brief in support of certiorari, available here:

http://www.nimj.org/documents/FinalAmicusBriefreCert.pdf [Hey, No Man -- how do I make that a hypertext link?]

"[R]esearch on the impact of amicus briefs in the Supreme Court has indicated that the presence of amicus briefs increases the likelihood of a grant of certiorari . . . ." Paul M. Collins Jr., Friends of the Court: Examining the Influence of Amicus Curiae Participation in U.S. Supreme Court Litigation, 38 Law & Soc'y Rev. 807, 807 (2004).

This cert petition is one to watch. We will have to see if it shows up on SCOTUSblog's list of cert petitions with a reasonable chance of being granted.

CAAF's opinion in the case is United States v. New, 55 M.J. 95 (C.A.A.F.), cert. denied, 534 U.S. 955 (2001). The D.C. Circuit's opinion that New asks the Supreme Court to review is United States ex rel. New v. Rumsfeld, 448 F.3d 403 (D.C. Cir. 2006).

--Dwight Sullivan

Resource alert

The September edition of the Army Lawyer went on line today. (I won't speculate as to whether our unseasonably warm November weather caused the September Army Lawyer to come out today or whether the September Army Lawyer coming out today caused our unseasonably warm November weather.)

There is one article of interest to military justice practitioners. Colonel R. Peter Masterton, now a military judge and formerly one of the brighest lights on the Army JAG School's faculty, has a primer on defense requests for expert witnesses and expert consultants. The article is available here:

http://www.jagcnet.army.mil/JAGCNETINTERNET/HOMEPAGES/AC/TJAGSAWEB.NSF/Main?OpenFrameset

(Click on The Army Lawyer, then click on September 2006, then click on USALSA Report.)

Defense victory; sad day for the defense

United States v. Simon, __ M.J. ___, No. 05-0563/MC (C.A.A.F. Nov. 27, 2006), represents a total abdications of trial defense counsel's and appellate defense counsel's duties. Unfortunately, as those of us in the military defense bar know, it is hardly unique. Simon should serve as a reminder to everyone in the defense bar of their obligations under United States v. Palenius, 2 M.J. 86 (C.M.A. 1977).

In Simon, 275 days passed from trial until the CA acted on the 36-page record. It doesn't appear that the trial defense counsel did anything to speed the process. Worse still, 572 days passed between the CA acting on the case at Camp Pendleton and the record finally showing up at the Washington Navy Yard. As Judge Baker pointed out at oral argument, in that amount of time the government "could have biked [the record of trial] across the country. They probably could have walked it." Still the trial defense counsel did nothing. In the meantime, Private Simon himself was losing his grip on reality and sinking into the clutches of mental disease. Once the record finally showed up at NAMARA, Simon's appellate defense counsel submitted the case without assigning any error, such as the gross appellate delay, and without ever contacting his client. As CAAF notes, "As a result, Appellant's first defense counsel did not learn of Appellant's mental health issues and did not bring those issues to the attention of the Court of Criminal Appeals." Simon, slip op. at 4.

Every defense counsel -- trial or appellate -- who reads Simon should vow, "Never again!" The hallmark of being a defense counsel is total dedication to the client. The trial defense counsel must continue representation until the appellate defense counsel takes over the case. And the appellate defense counsel must REPRESENT THE PERSON, not simply PROCESS THE RECORD. And trial defense counsel and appellate defense counsel must adopt a SYSTEM to ensure that no one falls through the cracks, like poor Private Simon.

CAAF (then CMA) called this to everyone's attention almost three decades ago. In Palenius, the court announced that "the prevailing practice among some trial defense attorneys of ceasing all activity on behalf of their clients and, in effect, terminating the relationship of attorney and client without the permission of their clients or of the courts can no longer be countenanced." 2 M.J. at 93. Yet almost thirty years after Judge Perry wrote those words, that practice remains if not prevailing, then certainly common. CMA continued, "The trial defense attorney can with honor and should maintain the attorney-client relationship with his client subsequent to the finding of guilty while performing the duties we set forth today until substitute trial counsel or appellate counsel have been properly designated and have commenced the performance of their duties, thus rendering further representation by the original trial defense attorney or those properly substituted in his place unnecessary." Id. If you are a military defense -- trial or appellate -- I implore you to go read Palenius RIGHT NOW. Then recommit yourself to following its dictates. Then implement a system for trial and appellate defense counsel to have CONTACT relief. Think of the client as a baton in a relay race. You have to pass him (or her) from one counsel to the other, without ever allowing the client to slip from one of your grasps. It is the right thing to do. It is ethically required. It is legally required. And it will avoid embarrassments like United States v. Simon. A system of contact relief would also let the counsel know that a case is overdue. If a trial defense counsel hasn't heard from an appellate defense counsel within a reasonable amount of time after the CA's action, then the trial defense counsel would know something is amiss. And if the appellate defense counsel doesn't receive the record within a reasonable amount of time, then the appellate defense counsel will know something is amiss. That isn't the way we operate now. But it should be.

CAAF did the right thing in Simon by setting aside the meaningless Article 66 review that Private Simon received the first time and sending the case back to do it right. Now we in the military defense bar must do the right thing by ensuring that the lofty goals of Palenius finally become the standard of practice in the military.

--Dwight Sullivan

Conjugal visits and the Joint Ethics Reg

It's still early in the fiscal year, but FY 2007 has already generated some interesting fact patterns. United States v. Crafter, __ M.J. ___, No. 06-0116/AF (C.A.A.F. Nov. 27, 2006), involves a prison guard charged with violating the Joint Ethics Reg by accepting payment for helping an inmate arrange a conjugal visit. (Technically, it probably wasn’t a conjugal visit, since the visitor wasn’t married to the inmate. But, to again quote Roxy Music, “Dim the lights; you can guess the rest.”) Alas, in an effort to keep CAAFlog PG rated, I will forgo all of the obvious puns and cheap jokes.

The issue before CAAF was whether the specification failed to state an offense. The spec alleged that Crafter violated the Joint Ethics Reg by “wrongfully accepting currency for arranging for . . . Inmate [G] to meet in private with his friend [Ms. ADP] at a billeting room at the Southern Pines Inn, a willful violation of [his] lawful duties to supervise the work of . . . Inmate [G].” [It isn’t immediately obvious why CAAF is so solicitous of Inmate [G]’s privacy. Crafter was convicted of accepting a bribe from Inmate [G] and yet the opinion seems to protect “G” as if he were a victim.] At trial, the defense didn’t move to dismiss the spec for failure to state an offense. But before the Air Force Court, the defense raised that issue for the first time. The Air Force Court rejected that argument in two sentences. See United States v. Crafter, No. ACM 35476, slip op. at 1-2 (A.F. Ct. Crim. App. Sept. 28, 2005) (unpublished), available at https://afcca.law.af.mil/content/afcca_opinions/cp/crafter-35476.pc2.pdf. CAAF took almost four pages to do the same.

The key question before CAAF was whether the spec’s allegation that Crafter “accepted money ‘for’ arranging Inmate G’s private meeting with Ms. ADP is sufficient to allege intent to influence or induce an official act, an element of the offense at issue.” CAAF noted that the word “for” could mean at least two things in this context, either: (1) that Inmate G essentially tipped Crafter after the event to thank him for his previously gratuitous assistance; or (2) that Inmate G bribed Crafter before the event to secure his assistance. The former reading would not state the offense of violating the Joint Ethics Reg while the latter would.

CAAF then set out the rule that while a facially deficient spec can’t be saved by the evidence presented at trial or a reg cited in the spec, an ambiguous or vague spec can. CAAF then noted that the spec referred to paragraph 5-400.a of the Joint Ethics Reg, which “prohibits DOD employees from accepting money to ‘influence’ official conduct or ‘induce’ unlawful conduct.” By citing that provision, CAAF reasoned, the spec clarified “that Appellant was charged with accepting money with the intent to influence or induce his actions.”

CAAF also concluded that the defense was on notice of the true nature of the charge. The trial defense counsel argued that the evidence of bribery was insufficient. And the military judge instructed the members, without defense objection, on the elements of bribery. Ergo Crafter loses.

CAAF’s holding seems clearly correct. If Crafter is remembered for anything other than is salacious facts, it will be for the dichotomy between fatally deficient specs (not salvagable by reference to a reg cited in the spec or evidence presented at trial) and an ambiguous or vague spec (salvagable by these means).

--Dwight Sullivan

Twins, Mrs. Fulton!

Click on the brand new 2007 link on CAAF's web site and you will find not one, but two opinions issued today. The Columbus Clipper won twice! (Sorry, Marcus -- only one book; we don't care how cold it gets in Afghanistan.)

In addition to Simon, 05-0563/MC, CAAF issued an opinion today in Crafter, 06-0116/AF. Like Simon, Crafter is a unanimous opinion authored by Chief Judge Effron. We will post analyses of both Simon and Crafter tonight.

The Columbus Clipper bats 1.000

So far CAAFlog has held two contests and the Columbus Clipper has won them both. But no one should begrudge his success. CAAFlog contest prizes are books, and he'll need them to pass the time during those long Kabul nights.

So congratulations, Marcus! Your prize is Douglas Waller's A Question of Loyalty: Gen. Billy Mitchell and the Court-Martial that Gripped the Nation, or a book of similar value if you already own or have read that book.

First opinion of the term!

Today there was a little something extra in the Navy-Marine Corps Appellate Defense Division's CAAF envelope. No, not an end-of-the-year bonus -- though the Division has had a very good year. Rather, it was the first CAAF opinion of the 2007 term.

United States v. Simon, __ M.J. ___, No. 05-0563 (C.A.A.F. Nov. 27, 2006), is a unanimous 10-page opinion authored by Chief Judge Effron. CAAF issued the opinion a mere 40 days after oral argument.

Simon set aside the Navy-Marine Corps Court's decision and remanded the record for a new Article 66 review. We will post an analysis of the opinion tonight.

BZ to LT Rich McWilliams.

This week at CAAF

CAAF will hear three oral arguments this week, all in Army cases. According to the scheduled hearings page on CAAF's web site, all three arguments will feature that same appellate defense counsel -- Major Billy B. Ruhling -- and two will feature the same appellate government counsel -- Captain Edgar E. Wiggers. It will be interesting to see whether these two counsel actually dominate CAAF's week to that extent or whether some subs will be called in off the bench.

The issues in all three cases appear intensely interesting, yet I couldn't find any of the opinions below on either LEXIS or ACCA's web site.

On Tuesday, the only scheduled case is United States v. Green, No. 06-0520/AR. The granted issue is

WHETHER THE MILITARY JUDGE VIOLATED APPELLANT'S DUE PROCESS RIGHTS WHEN HE SENTENCED HIM BASED UPON HIS PERSONAL RELIGIOUS BELIEFS RATHER THAN LEGITIMATE SENTENCING PRINCIPLES.

That's an issue that sounds fascinating, though it leaves the reader only guessing as to what might have actually happened.

On Wednesday, two cases are scheduled. The first is United States v. Wise, No. 06-0610/AR. In Wise, CAAF granted review of the following modified issue:

WHETHER APPELLANT'S CONFINEMENT CONDITIONS, INCLUDING AND IN PARTICULAR WITH RESPECT TO HIS CLAIM OF HAVING BEEN CONFINED WITH ENEMY PRISONERS OF WAR IN IRAQ, WERE UNLAWFUL, AND WHETHER, IN THE CONTEXT PRESENTED, APPELLANT FORFEITED HIS CLAIMS OF UNLAWFUL POST-TRIAL PUNISHMENT BY FAILING TO EXHAUST HIS ADMINISTRATIVE REMEDIES UNDER UNITED STATES v. WHITE, 54 M.J. 469 (C.A.A.F. 2001).

This issue appears to be the most interesting of the three. It should lead to an exploration of intersections between military justice and the law of war, such as the nature of detention of a POW and whether it is stigmatizing.

The week's (and calendar year's) final CAAF argument, following Wise on Wednesday, is United States v. Carruthers, No. 06-0050/AR. The issues in Carruthers are

I. WHETHER APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO CONFRONTATION WHEN THE MILITARY JUDGE IMPERMISSIBLY RESTRICTED CROSS-EXAMINATION OF A KEY GOVERNMENT WITNESS REGARDING THE DETAILS OF A CO-CONSPIRATOR'S EXTREMELY FAVORABLE PLEA AGREEMENT; and

II. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY REFUSING TO GIVE A MANDATORY LENIENCY INSTRUCTION.

With issues like this on tap, and with no additional information about the cases available on line, this will be a good week to take advantage of CAAF's best innovation of the term: posting audio files of the oral arguments its web site.

--Dwight Sullivan

Second person out of the pool

Sorry, but Guert doesn't get to hang around the pool any longer (pun intended).

Six people remain in the pool:

Marcus Fulton (a.k.a., The Columbus Clipper) -- 30 Nov
Phil Cave -- 9 Dec
Mike N. (a.k.a., The No Man) -- 11 Dec
Dwight Sullivan -- 14 Dec
Jason Grover (a.k.a., The Super Muppet of Appellate Advocacy) -- 20 Dec
Kathleen Duignan -- 4 Jan 2007

If CAAF issues its first opinion of the year anytime between Monday, 27 Nov and Monday, 4 Dec, the Columbus Clipper will win. Phil Cave (a.k.a., el Cave) is unlikely to hit the date on the nose, since he chose a Saturday. But if the opinion comes out Tuesday, 5 Dec through Friday, 8 Dec, he'll win. Then comes the No Man, but he will win only if: (a) he hit the bull's-eye with his 11 Dec prediction; or (b) the opinion comes out the following day, Tuesday 12 Dec. If the opinion comes out at any point later that week, Dwight Sullivan will win.

Last year the first opinion of the term was issued on 20 December. But with a smaller court and with the December oral arguments canceled, conditions seem favorable for an earlier opinion this year. We'll see soon.

Black Friday shopping alert

Today I stumbled across this rather recent and very timely publication:

Craig Peter Cummings, Is Anyone Listening? An Analysis of Public Opinion of the Supreme Court, Diversity in the Courts of Appeals, and Confirmations to the Military's Highest Court (2006).

For the relatively high price of $69.99, you can own this 139-page paperback book -- but, hey, shipping is free!

http://www.amazon.com/listening-analysis-diversity-confirmations-militarys/dp/0496111051/sr=1-3/qid=1164416529/ref=sr_1_3/002-0213200-3540046?ie=UTF8&s=books

Here's an excerpt from the book description: "[C]onfirmations to the U.S. Court of Appeals for the Armed Forces are strikingly void of partisan conflict, which is completely opposite to confirmations for judges nominated to the regional Courts of Appeals, and suggests that there may be little or no concern about the judges who preside over the armed forces."

Of course, the fact that CAAF nominees go through a different committee than nominees for Article III courts is probably a significant explanatory factor.

Cummings wrote the book as his dissertation for a political science Ph.D. from Columbia. See http://digitalcommons.libraries.columbia.edu/dissertations/AAI3151255/ Has anyone heard of him?

The first 24 pages of the dissertation are available at http://wwwlib.umi.com/dissertations/preview/3151255. Unfortunately, the part about confirmation of CAAF judges starts on page 79.

Cummings was recently on the West Point Department of Social Sciences faculty as an Army major, but has since rotated out. See http://www.dean.usma.edu/sosh/Faculty%20Bios/Cummings-bio.pdf. Does anyone know him? (He's not a lawyer.)

--Dwight Sullivan

CAAF grants two Air Force cases

On Wednesday, CAAF granted review of two Air Force cases.

United States v. Bare, No. 06-0911/AF, asks

WHETHER, IN LIGHT OF UNITED STATES v. BERRY, 61 M.J. 91 (C.A.A.F. 2005) AND UNITED STATES v. MCDONALD, 59 M.J. 426 (C.A.A.F. 2004), EVIDENCE OF UNCHARGED SEXUAL ACTS BETWEEN APPELLANT, WHEN HE WAS AN ADOLESCENT, AND HIS SISTER WAS IMPROPERLY ADMITTED AND MATERIALLY PREJUDICED APPELLANT.

The opinion of the Air Force Court of Criminal Appeals, which answered that question with a resounding "no," is published at 63 M.J. 707 (A.F. Ct. Crim. App. 2006).

In United States v. Carr, No. 06-0758/AF, CAAF granted the petition to review

WHETHER APPELLANT'S PLEAS OF GUILTY TO ASSAULT CONSUMMATED BY BATTERY WERE IMPROVIDENT BECAUSE EVIDENCE ADDUCED DURING HIS PROVIDENCE INQUIRY INDICATED THAT HE OBTAINED CONSENT FROM THE ALLEGED VICTIMS DUE TO FRAUD IN THE INDUCEMENT, RATHER THAN FRAUD IN THE FACTUM.

This is another one of those cases that is far more interesting than anyone would ever guess from the wording of the issue presented. See generally "A table setting contest," 3 Oct 2006, http://caaflog.blogspot.com/2006/10/table-setting-contest. Here's a brief excerpt from the Air Force Court's opinion: "[A]ppellant frequently pulled duty in the motor pool, but in his spare time devoted his energies and attention to passing himself off as a doctor. He obtained a number of medical textbooks and paraphernalia associated with the medical profession, including syringes, swabs, hospital gowns, and a speculum. He outfitted himself with a pager and cell phone and told women he met that he was an on-call doctor at a local obstetrics and gynecology clinic. He became sufficiently conversant with terms and concepts associated with the field of gynecology to convince a number of women that he actually was a doctor studying to become a specialist in that field." United States v. Carr, 63 M.J. 615, 617 (A.F. Ct. Crim. App. 2006). To quote Roxy Music, "Dim the lights, you can guess the rest." Well, except for one specific detail, which no one would guess: "none of the exams were conducted at a doctor's office, hospital, or clinic. Instead, most were in hotel rooms, and one was done in the back of a U-Haul truck." Id. A U-Haul truck?

I don't know Judge Mathews, but kudos to him for a well-written and well-reasoned opinion.

--Dwight Sullivan

The CAAF oral argument migration

This evening I looked at the CAAF oral argument schedule on its web site and the December arguments were missing. Where before there had been eight oral arguments scheduled, there was now -- nothing. At first I thought that the tryptophan from the Thanksgiving turkey might be distorting my perceptions. But then what is almost certainly the real reason occurred to me: CAAF has shifted oral arguments from December to January anticipating that the full compliment of five judges will be seated and ready to hear oral arguments by 8 January. But the three oral arguments slated for next week are still on the schedule.

I am still perplexed, though, by what happened to the oral arguments in Harrow, No. 06-0474/AF, and Flores, No. 06-0675/MC. The other six December arguments successfully migrated to January. But Harrow and Flores are missing from the flock. Can anyone shed light on their fate?

CAAF also scheduled five new cases for argument in February, including a 13 February Project Outreach in New Orleans. Marine Maj Brian Keller and Capt Sridhar Kaza are the lucky winners in the Who Gets To Go To New Orleans on the Government's Dime derby.

Here is the updated breakdown of arguments by service:

Army: 10
Navy-Marine Corps: 12
Air Force: 15
Coast Guard: 0

The total number of oral arguments scheduled thus far is 27. Additional oral arguments will probably be added to the March calendar and hearings will almost certainly be held in April and May. But May traditionally ends oral argument season at CAAF. So it appears likely that the number of cases decided with opinions this term will come in far below last term's 76 or even the 2005 term's 64. (2004 = 57; 2003 = 57; 2002 = 75; 2001 = 73; 2000 = 110; 1999 = 123; 1998 = 129; 1997 = 113; 1996 = 118)

--Dwight Sullivan

ACCA on FACA

In the mid-1990s, two of the service appellate courts split over whether the Federal Assimilative Crimes Act (FACA) applied to non-criminal state laws, such as traffic offenses. The Navy-Marine Corps Court said yes; the Air Force Court said no. Compare United States v. White, 39 M.J. 796 (N.M.C.M.R. 1994), with United States v. Clinkenbeard, 44 M.J. 577 (A.F. Ct. Crim. App. 1996), petition denied, 46 M.J. 104 (C.A.A.F. 1996). In a new published opinion, the Army Court sides with the Air Force. United States v. Brooks, __ M.J. ___, No. ARMY 20030150 (A. Ct. Crim. App. Nov. 21, 2006).

The facts of Brooks read like a page out of the French Connection’s script: “When the MP tried to apprehend appellant, appellant fled the scene by speeding down Washington Boulevard, [Fort Eustis’s] main thoroughfare. The MP pursued appellant in his marked police car. After avoiding a police roadblock, driving the wrong way on Washington Boulevard, running several stop signs, jumping a curb and roadway median, crossing over railroad tracks, striking a MP vehicle, speeding through several parking lots, and almost striking several pedestrians, appellant was finally apprehended at gun-point when his car became stuck in a ditch.”

These acts became the basis for various convictions at Brooks’s court-martial for violating Article 134 by committing “various violations of Virginia law assimilated into federal law under the Assimilative Crimes Act, 18 U.S.C. § 12.” While conceding that “the ACA does not distinguish ‘between criminal and civil punishments,’” ACCA quoted the Seventh Circuit’s observation that “it is generally understood to assimilate only a state’s criminal laws.” Brooks, slip op. at 5 (quoting United States v. Devenport, 131 F.3d 604, 606 (7th Cir. 1997)).

With this phrase, ACCA blithely skipped over FACA’s plain wording and reached instead to precedent construing FACA and canons of statutory construction, such as resorting to a statute’s title to resolve any ambiguities in the statute. See id. at 5 n.2. But as the Navy-Marine Corps Court explained, “By its text, FACA assimilates ‘offenses,’ but makes no mention of ‘crimes.’” White, 39 M.J. at 805. In Clinkenbeard, the Air Force Court attempted to escape from this plain language by noting a 1988 amendment of FACA which supports an inference that Congress viewed non-criminal traffic offenses as outside FACA’s scope. 44 M.J. at 578. The Air Force Court also relied on that old standby, expressio unis est exclusio alterius and for good measure also threw in a DOD regulation that construed FACA as excluding non-criminal traffic offenses. Id. The Air Force Court also cited language from the Manual for Courts-Martial explaining that FACA “is an adoption by Congress of state criminal laws for areas of exclusive or concurrent federal jurisdiction . . . .” Id. at 579 (quoting Manual for Courts-Martial, United States, Pt. IV, para. 60c.(4)(c)(ii)).

The issue is undoubtedly a close call – and it calls to mind Professor Karl Llewellyn’s famous demonstration that for every canon of statutory construction, there is an equal and opposite canon. See generally Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed, 3 Vand. L. Rev. 395, 401 (1950). But I think the Navy-Marine Corps Court provides the better analysis of FACA itself. The statute’s plain language is not limited to “criminal” state statutes, but rather applies to state statutes that establish an “offense” that is “subject to . . . punishment.” 18 U.S.C. 13(a). That seems an apt description of the Virginia traffic code, which provides that “[i]t shall be unlawful for any person to violate any of the provisions of this title,” and provides that “violations shall constitute traffic infractions punishable by a fine of not more than $200.” Because FACA’s meaning is plain, at least to me, there is no ambiguity justifying resort to the interpretive rules the Air Force Court applies in reaching its holding that ACCA follows in Brooks. As the Supreme Court has held, “Our first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case. Our inquiry must cease if the statutory language is unambiguous and ‘the statutory scheme is coherent and consistent.’” Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). FACA seems to pass these hurdles.

Even if resort to canons of interpretation were appropriate, the Air Force Court and Army Courts' analysis would remain problematic. Reliance on the 1988 amendment to FACA to interpret language codified in 1948 appears to be inconsistent with the Supreme Court’s dictate that “the view of a later Congress cannot control the interpretation of an earlier enacted statute.” O’Gilvie v. United States, 519 U.S. 79, 90 (1996). And if the text’s meaning is plain, then resort to the statute’s title was also erroneous: “The title of a statute . . . cannot limit the plain meaning of the text. For interpretive purposes, [it is] of use only when [it] sheds light on some ambiguous word or phrase.” Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 212 (1998) (quoting Trainmen v. Baltimore & Ohio R. Co., 331 U.S. 519, 528-29 (1947)). Similarly, resort to an agency’s construction of a statute is appropriate only where the text is ambiguous. See Rust v. Sullivan, 500 U.S. 173, 187 (1991).

I nevertheless conclude that the Air Force and Army Courts reached the correct resolution. In United States v. Guess, CAAF held that the Manual for Courts-Martial’s recitation of elements for offenses is not binding on the courts. 48 M.J. 69, 71 (C.A.A.F. 1998). But "[w]here the President’s narrowing construction is favorable to an accused and is not inconsistent with the language of a statute, ‘we will not disturb the President's narrowing construction, which is an appropriate Executive branch limitation on the conduct subject to prosecution.’” Id. (quoting United States v. Davis, 47 M.J. 484, 486 (C.A.A.F. 1998).” I would apply Guess to hold that the President has precluded prosecution of servicemembers for non-criminal assimilated offenses.

But regardless of the correct answer, it is obvious that this is a difficult and divisive issue. It is worthy of CAAF’s attention. The Judge Advocate General of the Army should certify Brooks.

--Dwight Sullivan

Two military cert petitions set for 7 Dec conference

The Supremes have scheduled the Jenkins and Washington cert petitions for the 7 December conference. The S.G. waived the right to respond to each of them, so unless the Court invites a response, they will be denied on the first order list after the 7 December conference. The issues raised by those two cert petitions are discussed at:

http://caaflog.blogspot.com/2006/11/two-new-military-cert-petitions.html

--Dwight Sullivan

New published ACCA opinion

The Army Court yesterday issued a published opinion on an important traffic law issue. United States v. Brooks, __ M.J. ___, No. ARMY 20030150 (A. Ct. Crim. App. Nov. 21, 2006). We'll post an analysis of the opinion tonight.

Pena trailer granted

CAAF granted review in another case considering whether mandatory supervision imposed by a service's clemency and parole board impermissibly increases the accused's sentence. United States v. Seawell, No. 06-0502/AF (C.A.A.F. Nov. 16, 2006). The court ordered no briefs. The first case argued this term, United States v. Pena, No. 06-0091/AF, presents a similar issue. So CAAF appears to be treating Seawell as a trailer to Pena.

S.G. waives response

The Solicitor General has waived the right to respond to the cert petitions in Jenkins v. United States, No. 06-650, and Washington v. United States, No. 06-654. (See "Two new military cert petitions," 13 Nov.) The petitions have not yet been scheduled for conference.

Argumentative argument

Here's a new granted issue posted on CAAF's web site today. I've been critical of many of the questions presented from this term. This is a GREAT q.p. which provides sufficient detail to engage the reader:

WHETHER THE TRIAL COUNSEL COMMITTED PLAIN ERROR DURING HIS SENTENCING ARGUMENT BY COMPARING APPELLANT TO OSAMA BIN LADEN AND ADOLPH HITLER AND BY APPEALING TO POTENTIAL RELIGIOUS BIASES OF THE MILITARY JUDGE BY COMPARING APPELLANT TO THE DEVIL AND ARGUING THAT APPELLANT IS GOING TO HELL.

United States v. Erickson, No. 06-0715/AF. That issue is virtually self-granting. The opinion below is at 63 M.J. 504 (A.F. Ct. Crim. App. 2006).

--Dwight Sullivan

US v. Dearing Reconsideration Denied . . . We REALLY Mean It!

Did anyone get the impression from the Daily Journal that someone had touched a nerve with the petition for reconsideration in US v. Dearing? Available here http://www.armfor.uscourts.gov/journal/2006Jrnl/2006Nov.htm. It was one of the longest and most citation filled denials I have ever seen. Maybe inconsistent arguments are a new focus for CAAF? I recall that Chief Judge Dorman of the Navy-Marine Corps Court of Criminal Appeals spread the word, so to speak, that inconsistent arguments were "disfavored" at NMCCA when he was the Chief Judge. Maybe CAAF's staff includes some recently departed NMCCA judges?

Interesting indication of interest from the Supremes

I have previously written about Christian, the pro se IFP cert petition at the Supremes. ("The Supreme Court October 2006 term's military justice docket," 30 )ct 06). The issues before CAAF involved the effective date of life without eligibility for parole and an ineffective assistance of counsel claim arising from the defense counsel's failure to seek credit for pretrial punishment. The case had originally been scheduled to go to conference tomorrow, but the Court asked the Solicitor General to file a response. That response is due 18 December. We'll look at it once it is filed.

--Dwight Sullivan

NIMJ comments on proposed CAAF rules changes

Here's a link to NIMJ's comments on the proposed CAAF rules changes. Has anyone else submitted comments?

http://www.nimj.org/documents/LetterFederalDocketManagementSystemsOffice.pdf

CA approves Akbar death sentence

The XVIIIth Airborne Corps' PAO released the following statement today:


FOR IMMEDIATE RELEASE November 20, 2006

Lt. Gen. Vines Affirms Sentence in General Court Martial of U.S. vs. Sgt. Hasan Akbar

FORT BRAGG – Lt. Gen. John R. Vines affirmed the death sentence in the case of the U.S. vs. Sgt. Hasan Akbar here, Friday.
Akbar was sentenced to death by a unanimous vote of a military panel for two specifications of premeditated murder and three specifications of attempted premeditated murder on April 28, 2005.
Sgt Akbar was convicted on April 21, 2005 of the March 23, 2003 grenade attack on three tents in Camp Pennsylvania, Kuwait that took the lives of Cpt. Christopher Seifert and Maj. Gregory Stone and wounded 14 others from the 1st Brigade Combat Team, 101st Airborne Division, Fort Campbell, KY.
The case now goes to the Army Court of Criminal Appeals under an automatic appeal.
--30 –

Air Force capital court-martial members selection tomorrow

On Monday, 20 November, members selection will begin in an Air Force capital court-martial being tried at Bolling Air Force Base in Washington, D.C. The case is United States v. Airman Calvin Hill. According to A.P., Hill is accused of fatally stabbing a female airman at the now-closed Naval Air Station in Keflavik, Iceland.

--Dwight Sullivan

First person out of the pool

Unless CAAF issues an opinion backdated to Friday, "EGN" is out of the CAAFlog pool to predict the date of CAAF's first full opinion of the 2007 term. Because a 20 November decision would be closer to Guert Gansevoort's 21 November prediction than EGN's 16 November prediction, Guert would win the prize if a decision were to come out dated Monday. So EGN appears to be eliminated from the running.

Seven people remain in the pool:

Guert Gansevoort (a.k.a. Guert Gansevoort) -- 21 Nov
Marcus Fulton (a.k.a., The Columbus Clipper) -- 30 Nov
Phil Cave -- 9 Dec
Mike N. (a.k.a., The No Man) -- 11 Dec
Dwight Sullivan -- 14 Dec
Jason Grover (a.k.a., The Super Muppet of Appellate Advocacy) -- 20 Dec
Kathleen Duignan -- 4 Jan 2007

If CAAF comes out with an opinion any day of the coming week, Guert will win. If not, the spotlight will be on the Columbus Clipper.

In the 2006 Term, the first opinion was issued on 20 Dec. Super Muppet, is that how you chose your entry?

Arguments by service

I had previously posted a count of the oral arguments each service was scheduled to conduct this term. (Naval service UA for November arguments, 1 Nov 2006). As the result of some summary dispositions, those numbers have changed. And four oral arguments have been scheduled for January. Two Project Outreach arguments are also now on the schedule for March. Here are the totals for each of the services:

Army: 9
Navy-Marine Corps: 11
Air Force: 14
Coast Guard: 0

I'll keep a running tab throughout the term.

--Dwight Sullivan

Hearings scheduled for CAAF nominees in December

It seems that the two new CAAF nominees are on a fast track toward confirmation. The following is from the Senate Armed Services Committee's web site:

UNITED STATES SENATE

COMMITTEE ON ARMED SERVICES

_________________________________________________

There will be a meeting of the Committee on


ARMED SERVICES

Monday, December 4, 2006

2:30 PM

Room SR-222, Russell Senate Office Building

OPEN





To consider the following nominations:




--------------------------------------------------------------------------------

Mr. Scott W. Stucky

to be a Judge of the United States Court of Appeals
for the Armed Forces

Ms. Margaret A. Ryan

to be a Judge of the United States Court of Appeals
for the Armed Forces

The nominees will be present.


http://armed-services.senate.gov/e_witnesslist.cfm?id=2447

CAAF's web site is back up

Let there be rejoicing throughout the land.

Lack of service at the CAAFeteria

The CAAF web site and the Air Force Court web site are still down. There are no new published opinions on the NMCCA, ACCA or CGCCA web sites. I have it on good authority that the problem with CAAF's web server is with its host at Maxwell Air Force Base. (As Phile Cave previously observed, the Air Force Court probably uses the same server, explaining why they are both down.) No estimate is available for when the problem might be fixed.

President Bush did his part to fill the void yesterday with his nomination of two new CAAF judges -- but there won't be another vacancy for about five years, so we can't count on the President as a continuing source of material. If any Navy-Marine Corps, Army, or Coast Guard CCA judges are reading this, please, please post a published opinion on your web site so I'll have something to write about.

--Dwight Sullivan

Web woes cont'

As Phil Cave notes in a comment to my post from this morning, the CAAF web site continues to be down -- as does the Air Force Court of Criminal Appeals web site. I know some of you are anxiously awaiting the retabulated numbers for arguments per service for this Term. (By the way, I believe that every single person who has ever posted a comment on CAAFlog is or was in one of the sea services. Are judge advocates from other services lurking out there or have I driven them all away with my blatant naval boosterism?) As soon as CAAF's web site returns, I'll run the new numbers.

--Dwight Sullivan

CAAF nominations cont'

Today's CAAF nominations seem like a home run. I've known Meg Ryan since she was a student at the Naval Justice School. She is a former Marine Corps judge advocate, a clerk to Judge Luttig on the 4th Circuit, and a clerk to Justice Thomas. She is currently a partner at Wiley, Rein & Fielding. She is very smart, very personable and very dedicated. I think she'll make a great judge.

Scott Stucky -- a Harvard Law grad and a retired Air Force Reserve colonel -- has been the long-time majority general counsel on the Senate Armed Services Committee.

So we have two nominees who know military justice and who have all the characteristics we would want for a jurist. This was a very good day for the military justice system.

On another high note, upon their confirmation, Marines will comprise a majority of CAAF. Oorah!

--Dwight Sullivan

HUGE NEWS: CAAF nominations

From whitehouse.gov:

Margaret A. Ryan, of Virginia, to be a Judge of the United States Court of Appeals for the Armed Forces for the term of fifteen years to expire on the date prescribed by law, vice Herman F. Gierke, term expired.

Scott Wallace Stucky, of Maryland, to be a Judge of the United States Court of Appeals for the Armed Forces for the term of fifteen years to expire on the date prescribed by law, vice Susan J. Crawford, term expired.

(This means that if they are confirmed on the same day, Judge Stucky will be the senior of the two.)

--Dwight Sullivan

Web woes

I had planned to do an update on the service breakdown of CAAF oral arguments this term, including the January arguments which were recently posted on the CAAF web site. But when I tried to log onto the CAAF web site last night, it was down (as was the Air Force Court's web site). The CAAF web site is still down this morning (as is the Air Force Court's web site). If the CAAF web site is back up tonight, I'll do the update then.

--Dwight Sullivan

Two new military cert petitions

The Supremes' docket today included two new military cert petitions.

The first, Jenkins v. United States, No. 06-650, is an Air Force case that seeks review of an exceptionally interesting CAAF decision. 63 M.J. 426 (C.A.A.F. 2006). (Note that "exceptionally interesting" bears virtually no relation to "cert granted.") The CAAF case involved exceptions to the military's psychotherapist-patient privilege that seem out of whack with the Supremes' decision in Jaffee v. Redmond, 518 U.S. 1 (1996).

The second, Washington v. United States, No. 06-654, is a Navy-Marine Corps case that presents two issues:

Whether the failure to properly swear a witness in a criminal trial is constitutional error for the purposes of applying a harmless-beyond-a-reasonable-doubt test for prejudice in the absence of a timely objection; and

Whether the Confrontation Clause and Maryland v. Craig require child witnesses to be made aware of the penalties of false testimony before testifying.

The opinion below is reported at 63 M.J. 418 (C.A.A.F. 2006).

Eight cert petitions have now been filed this Term seeking review of CAAF decisions. Five have been denied.

--Dwight Sullivan

Rule changes cont'

Most CAAFlog readers seem to have already read, dissected and analyzed the proposed changes to CAAF’s rules. I will, nevertheless, provide a quick synopsis.

There are nine proposed rule changes, though two of them are designed to accomplish the same goal, so there are really only eight changes.

1. 24-7 filing. A change to Rule 9 would allow filings 24-7 with the CAAF Marshals. One of my more nostalgic memories as a captain at the Navy-Marine Corps Appellate Defense Division revolves around my many last-minute high-speed CAAF runs up the Southeast-Southwest Freeway with David “Sid” Sheldon as we constantly recalculated the average speed we would have to maintain to make it to the Clerk’s office before it closed and whether, if we hit traffic, one of us had enough time to get out of the car and sprint there before they closed. (We always had a backup plan – the post office at Union Station was open until midnight, so we could always go there and get the necessary postmark if we were late in our CAAF run. I don't recall that we ever were. I won't mention the time that one of my more prominent colleagues blasted past the Marshals to make it to the Clerk's Office on time -- I thought he might get shot.) No doubt to the relief of the entire driving population in Southeast D.C., such 1645 hell rides will become a thing of the past. Procrastinators of the world, rejoice! (Well, maybe tomorrow.)

2. No more honorary bar memberships. Rule 14 would be eliminated, bringing an end to honorary CAAF bar memberships for distinguished foreign military lawyers.

3. Deadline for Grostefon issues. A change to Rule 19 would establish a deadline for filing Grostefon issues with an escape hatch if an appellate defense counsel fails to inform the appellant of the deadline.

4. Allowing cross-certification. Changes to Rules 19 and 22 would provide a Judge Advocate General with a window to cross-certify an issue in the wake of CAAF granting a petition and would allow CAAF to provide for a combined briefing schedule in such a case.

5. Dismissal to allow CCA reconsideration petition. Right now, there is a bit of a disconnect between the CCA rules and the CAAF rules. The CCA rules allow a reconsideration petition to be filed within 30 days. But either the accused or a Judge Advocate General can short-circuit that timeline by filing a petition or certificate of review before the 30 days have run. The rule promotes a certain amount of gamesmanship, and I have played that game myself. Consider a case in which a CCA provides some relief to the accused, but doesn’t provide total relief. If the accused wants to cut off – or at least discourage – a government request for reconsideration or suggestion for en banc rehearing, the appellate defense counsel quickly submits a petition for grant of review. The case is then at CAAF and the appellate government division must move to remand it in order to seek reconsideration or en banc rehearing at the CCA. A change to Rule 19(g) would provide that in such a case, CAAF “may dismiss the appeal without prejudice and remand the case to the Court of Criminal Appeals for resolution of the motion for reconsideration.” The curious thing is that CAAF can already do so, and occasionally has. See, e.g., United States v. Sowell, 59 M.J. 170 (C.A.A.F. 2003) (summary disposition). So the only thing the new rule appears to do is tell the parties that they can do something (file a motion to dismiss) that commonsense (and CAAF precedent) would already tell them they can do.

6. Deadline for amicus briefs. A change to Rule 26 would appear to expedite the filing deadline for an amicus brief in support of the appellant. Several years ago, I made a presentation at the JAA appellate advocacy symposium arguing that amicus briefs on the merits at CAAF are largely an exercise in futility. Nothing I've seen since then – and I’ve seen a lot since then – has changed my mind. On the other hand, I also continue to believe that amicus briefs in support of petitions for grant of review are valuable. Under this rule change, such an amicus brief would be due 10 days after the supplement is filed. As Gene noted in his comment to the earlier post on CAAF's proposed rule changes, if the various services’ appellate defense divisions don’t currently coordinate to identify supplements from other services that should be supported with an amicus brief, they should begin to do so.

7. Fewer indexes and table of authorities. A change to Rule 37 would raise the number of pages requiring an index and table of authorities from five to ten. The Columbus Clipper has already weighed in supporting this change.

8. Housekeeping amendment. A change to Rule 41 is literally a housekeeping amendment – or, to be more specific, a courthousekeeping amendment. It would extend the current restrictions on taping or broadcast of CAAF oral arguments in its courthouse to arguments held elsewhere as part of Project Outreach. We have already seen a number of changes to CAAF practice since Chief Judge Effron took the gavel. I wonder if we will see a decline in Project Outreach arguments. If any of CAAFlog’s readers have any information or data on this topic, please share it with us.

--Dwight Sullivan

New military justice players on Capitol Hill

By now, everyone knows that Carl Levin will be the new chairman of SASC and Ike Skelton will be the new chairman of HASC. But to military justice practitioners, it is also important to know who will be chairing the personnel subcommittees, through which military justice legislation typically passes.

The new chairman of the SASC Personnel Subcommittee should be Senator Ben Nelson of Nebraska. Senator Nelson is a lawyer and former governor of Nebraska. According to Wikipedia, he has the second most conservative voting record of any Senate Democrat. See http://en.wikipedia.org/wiki/Ben_Nelson.

The new chairman of the HASC Personnel Subcommittee should be Representative Vic Snyder of Arkansas's Second Congressional District. I've had some limited interactions with Representative Snyder which left me extremely impressed with him. He interupted his college education to serve a year as an enlisted Marine in Vietnam. He then finished college and medical school before moving to Arkansas and practicing medicine there. He later completed law school as well before being elected to Congress.

Significantly, Representative Susan Davis of California's 53rd Congressional District is also on the HASC Personnel Subcommittee. During the last Congress, Representative Davis sponsored H.R. 1364, which would have expanded Supreme Court jurisdiction over CAAF decisions. Significantly, Representative Ike Skelton (soon to be Chairman Ike Skelton) was a co-sponsor. However, probably because the bill amended 28 U.S.C. 1259, it was referred to the House Judiciary Committee's Subcommittee on Courts, the Internet, and Intellectual Property, where it seems to have lapsed into a coma. The new chairman of that subcommittee should be Representative Howard Berman, from California's 28th Congressional District.

It will be interesting to see if any military justice reform measures gain traction in the next Congress.

--Dwight Sullivan

CAAF proposes amendments to court rules

NIMJ has posted CAAF's proposed changes to its court rules:

http://www.nimj.org/documents/CAAF_Rules_%20Change.pdf

The deadline for comments is 1 December 2006.

Several of the proposed changes are unusually interesting. I'll post an analysis later during this long weekend.

It is now 2 hours and 11 minutes before the United States Marine Corps' 231st birthday. Semper fi!

--Dwight Sullivan

5 new grants

Any concern about the number of grants in October is obliterated by a flurry of petition grants posted on CAAF's web site today. On 6 November alone, CAAF doubled its number of plenary grants in all of October by granting review of 4 cases. On 7 November, it granted another, raising November's total to 6.

Let's look at the new cases:

United States v. Beatty, No. 06-0793/AF, asks whether the Air Force Court impermissibly considered evidence from outside the record in conducting its factual and legal sufficiency reviews.

In two more cases, CAAF continues the 2007 term's fascination with members challenges.

United States v. Johns, No. 06-0683/NA, asks whether NMCCA applied the correct standard in affirming the military judge's denial of a members challenge.

United States v. Maschek, No. 06-0621/AR, in addition to presenting yet another members challenge issue, reverses this term's trend by actually framing informative issues:

I. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY DENYING FIVE OUT OF EIGHT OF APPELLANT'S CHALLENGES FOR CAUSE, WHERE FOUR OUT OF THE SIX MEMBERS EITHER EXPRESSED DIFFICULTY CONSIDERING APPELLANT'S REHABILITATIVE POTENTIAL AND THE FULL RANGE OF POTENTIAL PUNISHMENTS, OR KNEW THE PROSECUTORS, OR BOTH.

II. WHETHER APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A FAIR AND IMPARTIAL PANEL, WHERE FOUR OUT OF THE SIX MEMBERS EITHER EXPRESSED DIFFICULTY CONSIDERING APELLANT'S REHABILITATIVE POTENTIAL AND THE FULL RANGE OF POTENTIAL PUNISHMENTS, OR KNEW THE PROSECUTORS, OR BOTH.

(I wonder if there is anything we can do about the unfortunate practice of capitalizing everything in the issue presented. Bryan Garner makes a compelling case that such capitalization actually hinders understanding. Normal capitalization provides important cues and clues to the reader -- they are lost if everything is capitalized or even when the first letter of each word is capitalized.)

United States v. Roberson, No. 06-0611/MC, appears to present a Holmes v. South Carolina-type issue by asking whether the military judge improperly excluded evidence of duress arising from Roberson's fear of a Mr. Matson and the fact that Mr. Matson owned a gun. (CAAF identifies Mr. Matson by the more genteel appellation "D.M.," but he is identified by complete name in NMCCA's unpublished Roberson opinion, which is available at http://www.jag.navy.mil/NMCCA/200301539.UNPUB.doc.)

Finally, on 7 November, CAAF granted review in United States v. Schroder, No. 06-0657/AF. Schroder, again daring to frame informative issues, deals with uncharged misconduct in a child molestation case:

I. WHETHER THE MILITARY JUDGE ERRED IN ADMITTING EVIDENCE OF ALLEGED SEXUAL MOLESTATION ACTS BY APPELLANT TOWARDS [SC] AND [JR] AND FAILED TO ADEQUATELY INSTRUCT THE PANEL ON HOW TO USE SUCH EVIDENCE.

II. WHETHER THE TRIAL COUNSEL IMPROPERLY ENGAGED IN INFLAMMATORY, IRRELEVANT, AND PREJUDICIAL COMMENTS DURING ARGUMENT BY URGING THE MEMBERS DURING THE MERITS AND SENTENCING TO RENDER JUSTICE NOT ONLY FOR THE ALLEGED VICTIMS OF THE CHARGED OFFENSES BUT FOR AN ALLEGED VICTIM OF UNCHARGED MISCONDUCT AS WELL.

Like the squirrels in my yard busily harvesting nuts for the winter, CAAF is spending its November stocking up on cases for oral argument.

--Dwight Sullivan

Rebuffing government reconsideration requests

In daily journal entries dated 7 November and posted on its web site today, CAAF denied two government petitions for reconsideration. One was in the case of United States v. Lane, 64 M.J. 1 (C.A.A.F. 2006), where CAAF held that a sitting Senator's simultaneous service as a reserve Air Force CCA judge violated the Constitution's Incompatibility Clause. Long-time CAAFlog readers will remember a running debate between the Super Muppet of Appellate Advocacy and me as to whether the S.G. will file a cert petition. It looks like we might have an answer sometime in early February.

CAAF also denied the Navy-Marine Corps Appellate Government Division's request for reconsideration in Long, 64 M.J. 57 (C.A.A.F 2006). Long held that a Marine had a reasonable expectation of privacy for e-mail messages sent and stored on the Headquarters Marine Corps computer network server. The Long opinion strongly suggests that had the log-on banner more explicitly authorized monitoring of the computer for disciplinary purposes or had command policies and procedures more clearly permitted monitoring for disciplinary purposes, CAAF would not have recognized an objective expectation of privacy. Past practice suggests that the S.G. will generally decline a government agency's request for a cert petition if the agency can accomplish its objective by other means. Here, it appears that the Marine Corps can accomplish its goal through self-help.

So my cert petition predictions are: Lane, yes; Long, no.

--Dwight Sullivan

A CAAFlog pool: when will CAAF issue its first opinion?

SCOTUSblog today tells us that the Supreme Court will issue its first opinion of the term on Monday. When will CAAF issue its first opinion?

The last time CAAFlog held a contest, the results were underwhelming -- the Columbus Clipper, who might have won on the merits, instead won by default. We shall, nevertheless, try again. Please post a comment predicting the date on which CAAF will issue its first full opinion of the 2007 Term. The deadline is 1200 EST on Monday, 13 November. The winner will receive a copy of Douglas Waller's A Question of Loyalty: Gen. Billy Mitchell and the Court-Martial that Gripped the Nation, or a book of similar value if the winner already owns or has read that title. In case of a tie, the earliest comment wins.

I will get the ball rolling by predicting 14 December 2006.

--Dwight Sullivan

Christian docketed for denial, er, conference

The in forma pauperis cert petition in Christian v. United States, No. 06-7397, has been distributed for the Court's 21 November conference. Because the S.G. waived the right to submit a response, going to conference is tantamount to denial of cert.

BIG news day

Today was a big news day.

CAAFlog will be discussing the following developments: (1) the Supreme Court's web site has an update on a pending military cert petition; (2) CAAF denied reconsideration in Lane; (3) NIMJ's web site has posted proposed amendments to CAAF's rules; and (4) CAAF granted review in 5 new cases.

Oh yeah, and the Senate changed hands.

Add one case, subtract another

In its 3 November daily journal, CAAF granted review of a new case and resolved an old one.

CAAF granted review in the Army case of United States v. Young. On their face, the issues seem stunningly uninteresting: a legal sufficiency challenge to a marijuana distribution charge, the burning legal question of whether a possession with intent to distribute marijuana charge is an LIO of a distribution of marijuana charge, and post-trial delay. CAAF ordered briefs on the first two issues only.

In the Air Force case of United States v. Barrett, on 22 August 2006, CAAF had granted review of an issue concerning whether the military judge's findings instructions and her later decision to order a proceeding in revision violated the Walters line of cases. See United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003). Walters deals with the problem of ambiguous findings arising when an accused is charged with committing an offense on divers occasions but is found guilty by exceptions and substitutions of only a single instance of misconduct without specifying which alleged act constituted the basis for the finding of guilty. CAAF has ruled that such findings make appellate review impossible because the appellate court doesn't know which conduct resulted in a conviction and which conduct produced an acquittal.

As the Air Force Court's unpublished opinion makes clear, Barrett was charged with distributing Percocet on divers occasions. United States v. Barrett, No. ACM 35790 (A.F. Ct. Crim. App. 28 Feb 2006), available at https://afcca.law.af.mil/content/afcca_opinions/cp/barrett-35790.u.pdf. Before Walters was decided, the members found him guilty by exceptions and substitutions of distribution on a single occasion. Once CAAF announced its decision in Walters, the military judge recognized the problem and ordered a proceeding in revision for the members to specify the one distribution that resulted in the conviction.

The Air Court upheld that procedure. But not so fast -- the Air Force appellate government division conceded error at CAAF. CAAF accepted the concession, dismissed the affected specification, and remanded the case to the Air Force Court to either reassess the sentence in light of the remaining specifications or order a rehearing on sentence.

--Dwight Sullivan

Chief Justice approves request for additional time

In Lovett v. United States, No. 06A468, Chief Justice Roberts has granted the Air Force appellate defense counsel's application to extend the time to file a cert petition until 11 January 2007.

New military case on the Supreme Court's docket

Dedicated readers of CAAFlog (a population probably limited to, well, me) will remember a discussion of Air Force Staff Sergeant Joshua Lovett's successful petition for a writ to compel continued representation by his military appellate defense counsel. ("CAAF issues writ requiring continued appellate representation," CAAFlog, 27 Oct 2006. The Columbus Clipper posted a hilarious comment to that post -- if you haven't read it yet, please do.) Now an Air Force appellate defense counsel has filed an application with Chief Justice Roberts seeking an extension of time to file a cert petition from 12 Nov 2006 (which is, oddly enough, a Sunday) to 11 Jan 2007. No. 06A468 (2 Nov 2006). Perhaps the effective date of life without eligibility for parole for a "rape of a child under 12" offense will be the issue ultimately presented. See United States v. Lovett, 63 M.J. 211 (C.A.A.F. 2006). Lovett's CAAF case also involved the issue of whether confinement at the old USDB constituted cruel and unusual punishment in violation of the 8th Amendment.

--Dwight Sullivan

More Moreno

Apparently not satisfied with shaking the foundations of the military appellate system once, Marine Corporal Javier Moreno recently filed a petition for extraordinary relief seeking to have his military appellate defense counsel represent him on remand. On 31 October, CAAF denied the petition "without prejudice to Petitioner’s right to raise the issue asserted in the petition during the course of normal appellate review if he is convicted." Moreno v. Jones, Misc. No. 07-8003/NA. That phrase is amusing since "the course of normal appellate review" is so different now than before CAAF's last ruling in Cpl Moreno's case. United States v. Moreno, 63 MJ 129 (C.A.A.F. 2006).

--Dwight Sullivan

CAAF roundup at the Supremes

Of the six military justice cert petitions filed at the Supremes so far this term, only one is still alive -- and in that final case, the death watch is on. In Christian v. United States, the in forma pauperis cert petition discussed in an earlier post, the United States waived its right of response on 2 November. The cert petition will almost certainly be denied at an upcoming conference.

--Dwight Sullivan

McKeel denied

As Mary Hall helpfully notes in a comment to the last post, the Supreme Court denied cert in McKeel. The decision was announced on the order list issued today. Thanks Mary!

McKeel McDenied?

The Supreme Court's web site tells us that McKeel went to conference today. It doesn't tell us what happened. But it's pretty easy to guess. SCOTUSblog, a.k.a., The World's Greatest Web Log, tells us that the Supremes granted cert in just two cases today. Neither of them was McKeel. Rather, the Court granted cert in two cases dealing with the Federal Sentencing Guidelines -- Claiborne v. United States (06-5618) and Rita v. United States (06-5754). The SCOTUSblog post is here: http://www.scotusblog.com/movabletype/archives/2006/11/court_will_rule.html

This almost certainly means that the Supremes will announce on Monday that cert is denied in McKeel. Both the Colubmus Clipper and I will be in Charlottesville on Monday for the New Developments Course. (The Columbus Clipper will be listening to me lecture -- unless he's UA.) So I encourage someone to check out the Court's order on Monday and post McKeel's fate here on CAAFlog.

--Dwight Sullivan

2/3 > 2/5 [revised]

If I had any mathematical abilities, I might be done something useful with my life -- like becoming a bookie. But, alas, I don't, so I am basically unemployable except in the legal field. But even someone with my extremely limited math skills realizes that it is harder to win 2 out of 3 than 2 out of 5.

Because CAAF is operating as a three-judge court until Judge Gierke's and Judge Crawford's replacements are nominated and confirmed, maintaining a two-judge-grant rule would appear to require a successful petition to win 67 percent of the judges' votes rather than the 40 percent that is required when CAAF is at full strength.

It is way too early to draw any conclusions based on CAAF's actual practice as a three-judge court, but let's look at the numbers so far. In October 2006, CAAF granted review in two cases (Phillips -- a Marine Corps case dealing with execution of contingent confinement -- and Edwin -- an Army case dealing with mistake of fact as a defense to a child sex offense). [NOTE: I should have written that CAAF granted two cases with plenary briefing. In my calculations, I exclude summary disposition and no brief cases. I'm trying to get at cases that ultimately get on CAAF's oral argument calendar.]

The CAAF web site includes the daily journal entries for the previous eight Octobers, so let's compare those numbers with this year's. From 1998-2005, CAAF granted an average of 6 cases per October. But this year's figure of 2 is not unprecedented -- in October 2000, CAAF also granted review in 2 cases and in October 2002, it granted review in just 3. And while this month's anemic performance is cause for concern, it could be a momentary blip due to administrative changes arising from the transfer of the chief judgeship or preoccupation with preparing for the 13 oral arguments this month.

A proposal by the National Institute of Military Justice would eliminate any concern over a diminished statistical chance of a successful petition. In a letter to CAAF, NIMJ has proposed that the court adopt a one-judge-grant rule while it operates as a three-judge court. NIMJ's letter is available here:

http://www.nimj.org/documents/CAAFltr.pdf

--Dwight Sullivan

FY07 Jurisprudence

There appear to be three published military appellate opinions so far in Fiscal Year 2007 -- two from the Air Force Court and one from the Navy-Marine Corps Court. [Note to self: throw a "New Fiscal Year's Eve" party on 30 September 2007.]

United States v. Falcon, NMCCA No. 200401483 (N-M. Ct. Crim. App. 10 Oct 2006), is in the "Armed Forces Court of Appeals and Published Courts of Criminal Appeals" file in LEXIS, though curiously it doesn't seem to be on either NMCCA's own web site or WESTLAW. This case, which aggravates a pre-existing split among the CCAs, seems destined to go to CAAF. The main issue in the case is whether the so-called "gambler's defense" applies to a bad-check charge under Article 123a.

As Judge Stone explained for the unanimous three-judge panel, the gambler's defense "stands for the proposition that prosecutions under Article 134 for making and uttering worthless checks in support of gambling transactions cannot be maintained where there is no showing of dishonor in failing to maintain sufficient funds for payment of the check upon its presentment." Judge Stone also explained neither CAAF nor NMCCA had yet addressed whether the defense applies to an Article 123a violation. The Army and Air Force Courts has split on the issue, with the Army Court ruling that it did and the Air Force Court ruling that it didn't. NMCCA agreed with the Air Force Court.

This disagreement among the CCAs seems ripe for CAAF's resolution.

The newest published military appellate decision is United States v. Attucks, __ M.J. ___, No. ACM 35946 (A.F. Ct. Crim. App. 31 Oct 2006), available at https://afcca.law.af.mil/content/afcca_opinions/cp/attucks-35946.pub.pdf. Attucks seems to be a very straightforward application of CAAF case law to: (1) support conviction of two separate 112a offenses for smoking a blunt that, unknown to Attucks, contained cocaine as well as marijuana; and (2) reject a challenge to the unit sweep that resulted in detection of those controlled substances' metabolites in Attucks' urine.

The other published Air Force case is United States v. Vieira, __ M.J. ___, No. ACM 35727 (A.F. Ct. Crim. App. 11 Oct 2006), available at https://afcca.law.af.mil/content/afcca_opinions/cp/vieira-35727.pub.pdf. While I would want to do far more research before reaching a final opinion on the subject, Vieira's holding strikes me as wrong. SSgt Vieira was charged with child sex offenses. The charges were initially dismissed without prejudice on speedy trial grounds. The charges were then repreferred and he was ultimately convicted. The initial charges were received by the officer exercising SCM jurisdiction within the statute of limitations period. But the Air Force Court assumed without deciding that all of Vieira's misconduct occurred more than five years before the second set of charges was received after the first set had been dismissed. No matter, ruled the Air Force Court, because the second set of charges was received "within 180 days after dismissal and they allege the same acts that were dismissed, without prejudice." The Air Force Court explained:

Article 43(g)(1), UCMJ, does not bar the prosecution of charges or specifications that are dismissed as defective or insufficient for any cause even if the statute of limitations has expired, as long as the new charges and specifications: 1) are received by an officer exercising summary court-martial jurisdiction within 180 days after the dismissal and; 2) allege the same acts or omissions that were alleged in the dismissed charges or specifications.

But the initial charges WERE NOT "dismissed as defective or insufficient for any cause." UCMJ art. 43(g)(1), 10 U.S.C. 847(g)(1). There was nothing wrong with the charges. Rather, the charges were dismissed because the military judge ruled that 127 of the 221 days of pretrial delay were attributable to the government. So based on Article 43(g)'s plain wording, the 180-day post-dismissal escape hatch doesn't seem to be available in this context.

There might be some reason why Article 43(g) should be read differently, but if so, the Air Force Court certainly doesn't bother to explain it. Like Falcon, Vieira is a case that CAAF should review.

--Dwight Sullivan

Naval service UA for November arguments

Anomalously, no Navy or Marine Corps case is being argued at CAAF in November. But this doesn't appear to reflect a long-term trend. Half of the eight cases being argued in December are from the naval service.

Looking at all 29 cases scheduled for argument in October, November, and December, here's the breakdown: Army 7; Air Force 12; Navy-Marine Corps 10.

--Dwight Sullivan