CAAF recap and SitRep

This was a very busy week not only for CAAF, but also for me. As a result, I never had time to post a recap of Conliffe after my evening of battling connectivity challenges. Sorry!

CAAF issued four opinions of the court this week: Thompson, Rodriguez, Conliffe, and Kuemmerle. That brings to 12 the number of opinions of the court issued this term. I believe that 14 argued cases remain undecided (Burton, Forney, Macomber, Loving, Goodin, Von Bergen, Brown (No. 08-0261/AR), McCracken, Gladue, Rogers, Clayton, Dean, Collier, Campos).

This past week, CAAF added one case to its argument calendar (Gardinier (25 Feb 09)). That brings the number of cases currently scheduled for oral argument to seven. Four granted cases remain unscheduled (Miller, Thomas, Paige, Weston). CAAF didn't grant review of any cases Monday through Wednesday. The daily journal for Thursday and Friday isn't yet available.

CAAF's Rodriguez decision from Tuesday was one of the most eagerly awaited opinions of the term within the CAAF bar. And the decision finally drew a jurisdictional line that CAAF couldn't cross: it ruled that CAAF may not entertain a petition for grant of review that is filed after the relevant Article 67(b) time period has expired. Chief Judge Effron and Judge Baker dissented.

Monday's Thompson per curiam was a brief opinion accepting a government concession concerning the impermissibility of a CCA reversing a finding and affirming a non-LIO in a contested case.

Juxtaposed against Thompson is Wednesday's Conliffe opinion. All five CAAF judges agreed that Article 133 is a purely military offense that can't provide the necessary object offense to support a conviction for housebreaking. The fireworks came over how to remedy the problem. Three judges ruled that even though unlawfully entry has a unique element that isn't included within housebreaking, it could nevertheless affirm a finding of guilty to unlawfully entry. The majority ruled that the service discrediting/prejudice to good order and discipline element of unlawful entry "is inherently included within the second element of housebreaking," which is "[t]hat the unlawful entry was made with the intent to commit a criminal offense therein." The majority also concluded that as both a general and case-specific matter, Conliffe was on notice that unlawful entry was an LIO and he voluntarily and knowingly pleaded guilty to that LIO, thereby "relinquishing his constitutional right to contest that offense." Finally, the majority concluded that Conliffe's providence inquiry provided a sufficient factual basis to support the Article 134 terminal element. The majority concluded that "in the context of this case, Appellant was on fair notice that his admission to discredit in the context of pleading guilty to conduct unbecoming an officer and a gentleman amounted to an admission to discrediting conduct for the purposes of unlawful entry." The majority reasoned that "when a servicemember engages in conduct unbecoming an officer and a gentleman, he or she also necessarily engages in service discrediting conduct or conduct prejudicial to good order and discipline." The two dissenting judges (Erdmann & Ryan, JJ.) argued that the majority's approach was precluded by United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008). Judge Erdmann countered that Medina "represents a departure from this court's prior practice of assuming that clauses 1 and/or 2 of Article 134, UCMJ, are inherently, necessarily, implicitly or constructively lesser included concepts of other offenses, including the enumerated offenses." He noted that an application of an elements test for LIOs reveals that unlawful entry has an element that isn't included within the housebreaking offense and therefore unlawful entry can't be an LIO. Finally, in a dissent sure to warm the No Man's heart (and I'm shocked he hasn't mentioned this yet), Judge Ryan quoted Justice Thomas's concurring opinion in Apprendi v. New Jersey, 530 U.S. 466 (2000): "'[T]he indictment must allege whatever is in law essential to the punishment sought to be inflicted.' (quoting 1 J. Bishop, Law of Criminal Procedure 50 (2d ed. 1872))."

In Thursday's Kuemmerle decision, Judge Baker's opinion of the court defined online "distribution": "distribution of child pornography through the Internet under the CPPA, as factually presented in this case, consisted of two acts -- (1) the posting of the image, whereby the image left the possession of the original user, and (2) delivery of the image, whereby another user accessed and viewed the image." Under this analysis, a "distribution" occurs every time someone accesses the posted image. Judge Stucky dissented. Judge Stucky interpreted "distribution" to occur at the point that an image is posted on the Web and made available for download rather than at the point when the image is actually downloaded. He observed, "I can find no support in the case law -- and the Government cites none -- for the proposition that simply posting an image and then taking no other action constitutes 'distribution' six years later when someone happens upon the image." He distinguished this case, where the image (for reasons I can't even fathom) was in the accused's Yahoo profile from cases where child pornography is made available through a peer-to-peer network.