Wednesday, December 03, 2008

CAAF issues opinion in Miller

CAAF released its opinion in Miller today, reversing the Air Force Court's decision. United States v. Miller, __ M.J. ___, No. 08-0307/AF (C.A.A.F. Dec. 3, 2008). The link to the opinion on CAAF's web site is broken, so I've posted a copy here. Judge Ryan wrote for a unanimous court. The case was heard as a Project Outreach argument at Fort Riley, Kansas, on 22 October, just 42 days ago.

SSgt Miller thought he was communicating over the Internet with a 14-year-old girl when, in fact, he was communicating with a sheriff's deputy. SSgt Miller web cast to the believed-to-be-14-year-old images of SSgt Miller masturbating and ejaculating. While doing so, he sent sexually suggestive IMs to the believed-to-be-14-year-old. SSgt Miller then proposed that they meet for sex. For his web cast, SSgt Miller was convicted contrary to his pleas of a specification of attempting to take indecent liberties with a child. He was also found guilty of two specs of attempting to communicate indecent language to a child.

CAAF held that the web cast was insufficient to meet the requirement that the indecent liberty be "in the presence" of the child. Relying on both the nonbinding discussion in the 2005 MCM and its own case law, CAAF held that "the offense of taking indecent liberties with a child requires the act be committed in the physical presence of the child." Id., slip op. at 7-8. CAAF also rejected the notion that appearing to the victim via video was sufficient to constitute physical presence. Id., slip op. at 8-9. Rather, CAAF concluded, to commit this offense, the accused must "be in the same physical space as the victim." Id., slip op. at 9. Applying Jackson v. Virginia's legal sufficiency standard, 443 U.S. 307 (1979), CAAF held that "no reasonable factfinder could conclude that Appellant committed an act that tended to effect the element of being in the detective's physical presence." Miller, No. 08-0207/AF, slip op. at 11. So SSgt Miller's "act did not tend to effect the commission of the completed offense, and no reasonable factfinder could find him guilty of the charged offense." Id.

CAAF remanded the case to AFCCA to resolve the government's argument that a finding of guilty to the lesser-included-offense of attempted indecent acts with another should be affirmed.


Dew_Process said...

The Remand issue raises an interesting Double Jeopardy issue since the government's LIO theory had never been raised either at the trial or CCA level.

Why do they get the proverbial "two bites of the apple?" and not be subject to waiver?

Phil Cave said...

This will also take care of United States v. Lorenz issued by the Army a few days ago.

Phil Cave said...

DP, they get two bites (or three or four) because they are the government.

Anonymous said...

I find it strange that CAAF requires actual physical presence when the elements of the offense under Article 134 (which are not statutory, but by Presidential Executive Order) only say "in the presence" and a congressional statute, Art. 39 was recently amended (circa 2004) to indicate that presence is satisfied by VTC. Oh I'm not forgetting the fact that the explanation of this offense (Presidential EO) was amended post the 1965 case of Knowles to require "physical presence." That made it into the 1969 MCM, so it was probably done by an EO appx 1967/68. I think we would all have been better served (with the exception of this appellant) if CAAF would have stepped into reality for a moment, overruled its dated precedent (but we all know they NEVER do that) and created case law that is in step with technology. BTW, how many times has CAAF indicated that it does not have to give explanations discussion, etc., any weight when that does not comport with their intended result. The text of the relevant portion of Art. 39 is below. There are also implementing RCMs, but for brevity I did not include them:

§ 839. Art. 39. Sessions

(b) Proceedings under subsection (a) shall be conducted in the presence of the accused, the defense counsel, and the trial counsel and shall be made a part of the record. These proceedings may be conducted notwithstanding the number of members of the court and without regard to section 829 of this title [10 USCS § 829] (article 29). If authorized by regulations of the Secretary concerned, and if at least one defense counsel is physically in the presence of the accused, the presence required by this subsection may otherwise be established by audiovisual technology (such as videoteleconferencing technology).

I know CAAF likes to pride itself as a technologically advanced court, but it just stuck its collective head into the sand.

I personally believe that the court would have found differently had this been charged as an indecent liberty (he actually sent the web images to a real child) vice an attempt.

As to the remand issue, the CAAF's decision in the, yet to be decided, McCracken case may limit the AFCCA. They may as well wait that one out.

Anonymous said...

Since when has CAAF ever actually imposed waiver? While they claim an issue is subject to waiver they still entertain it.

Cloudesley Shovell said...

This opinion will have limited effect because it only applies to the old Art. 134 indecent acts.

The new Art. 120(j) expressly includes physical presence as an element. Of course such conduct via webcam could still be prosecuted as an indecent act under Art. 120(k).

As far as the "second bite at the apple" issue that has concerned a couple commenters: See Art. 59(b). "Any reviewing authority with the power to approve or affirm a finding of guilty may approve or affirm, instead, so much of the finding as includes a lesser-included offense."

If the LIO was never instructed upon at trial, there may be due process issues very similar to those just argued in McCracken at CAAF on Tuesday.

Anonymous said...

Thanks Admiral - good points!