Thursday, June 18, 2009

Two new CAAF decisions -- and a question

For some reason my computer is refusing to access CAAF's web site. Phil Cave was kind enough to send me two opinions that CAAF issued today.

The first is United States v. Marshall, __ M.J. ___, No. 08-0779/AR (C.A.A.F. June 18, 2009). Judge Stucky wrote the opinion of the court. Judge Ryan concurred in the result. I understand that the Marshall opinion is available here.

The issue in Marshall was whether the military judge could properly convict the accused by exceptions and substitutions of escaping from a different person than was alleged in the spec to which the accused pleaded not guilty. No, rules CAAF.

After being apprehended by local authorities and then turned over to military custody, PVT Marshall walked away while he was on an outside smoke break (!) during his pretrial confinement processing.

The spec alleged that the accused escaped from the custody of CPT Kreitman. The evidence showed that CPT Kreitman didn't personally take PVT Marshall into his custody, but rather ordered one of his subordinates to take custody of PVT Marshall from civilian law enforcement authorities. The defense moved for a finding of not guilty under R.C.M. 917, but the military judge denied the motion. The military judge later convicted PVT Marshall by exceptions and substitutions of escaping from the subordinate's custody.

The majority initially rejected the argument that the issue was forfeited, relying on the defense's motion for finding of not guilty and ruling that the defense didn't need to reiterate its same arguments once the military judge found PVT Marshall guilty by exceptions and substitutions.

CAAF rejected the government's argument that the substitution of the subordinate for CPT Kreitman was a minor variance. CAAF concluded that "the substitution was material." The court explained, "The military judge convicted Appellant by exceptions and substitutions of an offense that was substantially different from that described in the specification upon which he was arraigned." The court continued, "Although the nature of the offense remained the same -- escape from custody -- by substituting SSG Fleming for CPT Kreitman as the custodian from whom Appellant escaped, the military judge changed the identity of the offense against which the accused had to defend. This denied him the opportunity to defend against the charge." Id., slip op. at 8 (internal quotation marks omitted). The court also found that PVT Marshall was prejudiced by this variance, observing that his trial strategy focused on showing that he was never in CPT Kreitman's custody.

CAAF set aside the finding of guilty to escape from custody and dismissed the charge. The court also remanded the case to ACCA for reassessment of the sentence.

Judge Ryan concurred in the result. She disagreed with the majority that the motion for finding of not guilty preserved the variance issue. She concluded that the issue was forfeited by the defense's failure to object on variance grounds, absent plain error. Finding plain error, she agreed with the majority's disposition of the case.

CAAF's other decision today was United States v. Wilson, __ M.J. ___, No. 09-0010/AR (C.A.A.F. June 18, 2009). I understand that a copy of Wilson is available here. Chief Judge Effron wrote for the majority. Judge Stucky dissented.

SSG Wilson was charged with raping his stepdaughter on divers occasions. The military judge found him guilty of rape, but excepted the "on divers occasions" language. CAAF observes that by "so doing, the military judge convicted Appellant of a single rape, while acquitting Appellant of multiple incidents of rape." Id., slip op. at 3. After a detailed recitation of the facts, CAAF added, "The military judge found Appellant guilty of Specification 2 of Charge II, excepting the words 'on divers occasions.' The military judge did not indicate on the record or through substitutions to the specification the rape incident of which she was convicting Appellant. Neither party asked for clarification as to which alleged rape incident formed the basis of the conviction." Id., slip op. at 9.

ACCA affirmed, explaining in a footnote that is was sure it could identify the incident for which the military judge convicted SSG Wilson of rape: "The victim in this case unequivocally testified that she was raped on only one occasion, and the parties accordingly shaped their closing arguments to address the only assertion of rape described by the victim. Thus, we find no ambiguity in the finding at issue." Id., slip op. at 10 (quoting unpublished ACCA opinion).

CAAF explained that during the government's case in chief, it presented evidence of two rapes. CAAF repeated its by-now familiar holding from United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003), that where a divers occasions spec is changed through exceptions and substitutions to a single occasion finding of guilty, that "[i]f there is no indication on the record which of the alleged incidents forms the basis of the conviction, then the findings of guilt are ambiguous and the Court of Criminal Appeals cannot perform a factual sufficiency review." Id., slip op. at 12. In this case, "[b]ecause evidence of multiple incidents of rape was presented at trial, the military judge was required to indicate the single incident for which she convicted Appellant." Id., slip op. at 13. CAAF explained, "Here, the record does not contain either substituted language or a statement on the record that would identify whether the military judge convicted Appellant of rape for the bathroom incident or the bedroom incident. Without such clarification, the findings of the present case are fatally ambiguous." Id., slip op. at 13-14.

CAAF remedied the error by setting aside the finding of guilty to rape and dismissing the specification with prejudice and setting aside the sentence. CAAF authorized a rehearing on the sentence.

Judge Stucky dissented, concluding that ACCA properly affirmed the finding of guilty. He reasoned that the evidence would have permitted the military judge to conclude beyond a reasonable doubt that SSG Wilson raped his stepdaughter on only one particular occasion. That occasion must, therefore, be the basis for the finding of guilty and ACCA's affirmance.

The outcome in this case seems like an enormous windfall to SSG Wilson. There may be a very good answer to this question, but here's what I don't get. Rather than setting aside the conviction and dismissing the rape specification, why isn't the right remedy to remand the case to the military judge to clarify what incident was the basis of the conviction, thereby permitting further review by ACCA?


Cossio said...

“[T]he remedy for a Walters violation is to set aside the finding of guilty to the affected specification and dismiss it with prejudice.” Scheurer, 62 M.J. at 112. Accordingly, we set aside the finding of guilty as to Specification 2 of Charge II and dismiss that specification with prejudice."

This "Walters" violation appears to be the answer why the spec was dismissed.

Also page 14 of the opinion gives some light as to the mental-gymnastics the court engages to see such conduct as a breach of the Fifth Admendment:


Double jeopardy principles prohibit a reviewing court from rehearing any incidents for which the accused was found not guilty. Green v. United States, 355 U.S. 184, 187-88 (1957); United States v. Scheurer, 62 M.J. 100, 112 (C.A.A.F. 2005). An ambiguous determination of guilt precludes a Court of Criminal Appeals from performing a factual sufficiency analysis. Walters, 58 M.J. at 396-97. The court may not conduct a factual sufficiency review when the findings are ambiguous because such action creates the possibility that the court would affirm a finding of guilt based on an incident of which the appellant had been acquitted by the factfinder at trial. Id. at 395.


Still, the kind of relief this man is getting for raping his stepdaughter when he is clearly guilty is ridiculous. The question is not if he is a rapist, but when, and how many times.

Having said that I'm not sure if a remand to the MJ is a good idea, I don't see the logic, however, of dismissing the charge WITH PREJUDICE.

So, I take it this predator will not have to knock on any doors and let people know how dangerous he is to their Daughters?

A rehearing would be more sane. It is both fair to the accused, the victims (sans testifying again) and Government.

Anonymous said...

CAAF tends, for whatever reason, to be soft on sex offenders.

Anonymous said...

Form over substance. This is just NUTS!!!

Anonymous said...

Think we now have enough evidence to order CAAF to undergo an RCM 706 board.

Anonymous said...

Judge Stucky is the only sane one on the court. Can we start impeachment proceedings on the rest?

Anonymous said...

Re: Marshall opinion, the CAAF states that the offense was "against CPT Kreitman". What? Forgive me, but isn't the "victim" in a criminal case the state? Why isn't this case then properly labelled Kreitman v. Marshall?

Just something odd about the wording (but perhaps not the substance) of the opinion.

Anonymous said...

Did Cossio just give CAAFlog a lesson on the law? PWNed?

John O'Connor said...

I can't find Wilson on the ACCA website. Does anyone know if the case was tried before or after CAAF decided Walters in 2003?

If after, this is a grievous error by the MJ, but even more so (in my view) by the TC.

Re Dwight's question, it might not be practical to remand because of the non-standing anture of courts-martial. I don't think you could remand to just any old judge to advise as to what specific rape soem other MJ found the accused guilty. I think the result would be more reasonable if the MJ could clean up the mess through an affidavit, such as how ambiguous CA actions are sometimes corrected. This is particularly true where, as here, you had a confession to one spec of the charged offense.

Cossio said...

I don't think this was CAAF being soft on predators. A judge's duty is to the law. Under Walters such errors are dismissed. It just sucks that the crime was so serious. Sex offenses like these, you would rather have the conviction (the collateral consequences) than the sentence.

Or would you have CAAF adopt CJ Roberts "your in the Army now" standard of justice?

Col. Sullivan wrote on Walters and it's impact on Rodriguez so I believe his question was why they just can't remand for clarification rather than their apparent reliance on bad caselaw created out of bad and narrow statutes for an article I court.

I will say that the TC isn't really to blame as he is a mouth piece with really not much say on what appears on the charge sheet.

So JO'C the nimrod that should where the "cone of shame" or dunce cap would be the SJA, the IO, the MJ, and the seven different attorneys looking at this before it went to trial.

John O'Connor said...

Cossio, a couple of points.

First, the problem wasn't with what was on the charge sheet. The problem was what the MJ did in finding the accused guilty by exceptions and substitutions. If this case went to trial after Walters (I can't figure that out), the TC should have stood up and said "excuse me judge, case law requires you to identify on the record which instance you found the accused guilty of."

Second, if the problem was with the charge sheet as drafted, the TC often is the one whop drafted the charges, and certainly is the one responsible for making sure they are approprioate when he walks in the door for the arraignment and later at trial.

Third, if Walters was a members case, then I don't think it's true that CAAF had to mindlessly dismiss with prejudice under Walters rather than trying to clarify. If Walters was a judge-alone verdict, then the remedy is (in my view) inappropriate.

Peter Wright said...

"cone of shame" or dunce cap would be the SJA, the IO, the MJ, and the seven different attorneys looking at this before it went to trial.

I'll give you this Cossio, for someone who hasn't served in an AF legal office, you sure do know how they work.

Cossio said...

Those are excellant points and well taken. I can tell you that the AF the TC virtually has little input, the drafting is done by the "chief of military justice" on the base, who is usually a senior lawyer, with concurrance from the SJA and his Deputy, it then goes thru the JAGs at HQ and then of course the IO.

I shouldn't assume the Army/Navy do business that way. In fact it could be another reason why they are more expediant.

I would have loved to see the "offer of proof" on how they could come up with these flawed charges.

Cossio said...

Oh yes Peter, I do have ample knowledge on how they work. Especially in US v. Cossio II were we had 6 jags and a judge testify how they draft charges.

John O'Connor said...

In the Marine Corps (and granted, this was 11 years ago), the charges in my shop were drafted by a Corporal or Sergeant, who would bring them to the TC for review and editing. The only time I took in cases where I didn't review and edit the charges myself before preferral were cases I picked up when I arrived and the few occasions I brought a case in for another TC.

I do know that the other legakl shop on base had one TC who either drafted or edited most or all of the charge sheets. Regardless, though, the TC ultimately is responsible for the charge sheet with which he or she walks into court.

DB Cooper said...

The trial in Wilson occurred after Walters came out. So the MJ should have known to clarify her findings. Alternatively, the TC should have known to ask the MJ to clarify her findings.

What is hinted at, but ultimately missing from CAAF’s opinion, are the details on how the other (non-rape) sex offenses were dismissed. Those other offenses were referred, tried, SSG Wilson pled guilty to them, and the MJ convicted on them. Months later, someone realized that the statute of limitations had long since lapsed on those other offenses. There was a post-trial 39a, and the MJ had to dismiss those other offenses. One has to wonder how no one—the MJ, TC, or DC—caught that.

Finally, the Walters error was glaringly obvious. Shame on ACCA for rubber stamping this case with a mere footnote opinion. Sure, it was a windfall. But the law was crystal clear, and ACCA is supposed to follow it.

John O'Connor said...

Thanks for the clarification, D.B.

Trial counsel need to know the law so that they can make sure what happens at trial is defensible on appeal. All that needed to happen was for the TC to stand up and ask the MJ to specify the occasion.

Southern Defense Lawyer said...

Isn't SOL waived unless raised? Who dismissed those charges? It sounds like EVERYONE was ineffective in this case, including DC, for letting the client plead to time barred charges (though this may be monday morning QB. TC might have pulled the old "you plead to all charges or no deal, I don't care that the SOL has run" card)

People should lose careers over this case. That little girl deserved so much better.

Southern Defense Lawyer said...

Upon re-reading RCM 907, it appears that I was mistaken. Only waived if it appears the accused was aware of the SOL defense, or is informed by the MJ.

Still, the incompetence of this case is stunning. I wonder how many JAGs involved are still in the service and have promoted.

Phil Cave said...

I will be interested to see if CAAF grants a petition in Trew.
In that case the TC did ask for clarification, but not special findings.
NMCCA discusses what the MJ said to clarify and also the facts and circumstances from the record to glean a finding that everyone at trial knew what event the MJ referred to.

I agree that it is the TC responsibility, and ONLY the TC, to seek clarification in a Walters situation. Although in light of Walters a prudent MJ should give special findings sua sponte.

I agree that the proper remedy is for the MJ to be required to reopen the trial and put special findings on the record. That's the same remedy whether it's a diverse drug use or a diverse child abuse. The nature of the offense should not drive the remedy.

John O'Connor said...

An interesting question that just occurred to me: I read Walters and Wilson as saying the problem with the findings aren't that the findings are inherently insufficient, but that they are insufficient to permit a CCA to conduct its Article 66 review.

What if the case doesn't have an Article 66 review? What if the sentence was subjurisdictional, or the accused waived his right to appellate review? In that case, Im not sure there is any reversible error. There might be error (in the sense that the finding would not permit an Article 66 review if there were to be one), but it's harmless so long as the finding is sufficent to provide double jeopaerdy protection.

Anonymous said...


I think that would be a proper remedy in a judge alone case, not a members’ case. The MJ alone was the "majority" and thus could properly tell us what he/she found without implicating a possible double jeopardy issue. In a members’ case the possibility exists that various members didn’t vote for guilt as to the same offense, if, as in these cases the government introduces proof of more than one offense and the members never discussed actual dates. Thus, if you send it back for members, they may realize that only a minority would have voted to convict on each possible date and then some may be compelled to alter their vote to gain the necessary majority for at least one occasions resulting in a conviction on an offense which technically, the accused was acquitted.


Agree. Since ACCA could not have performed its required review, which not set aside their opinion for proceedings not inconsistent with CAAF’s opinion, thus allowing an enlightened ACCA the possibility of remand for post-trial 39(a)?


John O'Connor said...

Could a remedy for the inability to conduct an Article 66 review be to affirm only so much of the sentence as would take the case out of Article 66 review?

Cossio said...

That would be an interesting senario, one that the TJAG could bring up.

I did read the article 66 issue but alas us convicts have brains the size of a walnut and my ADD kicked in trying to read another frustrating issue.

Anonymous said...

J O'C (1103),

Some of the blame certainly does lie with the TC but a heap of it lies with a miljus system that continuously throws inexperienced counsel into the courtroom without supervision or mentorship. Not to mention the military judge who is, egads, supposed to be the expert in the courtroom. TC likely deferred to the MJ's "expertise" when he didn't get on his feet and demand that the judge clarify his finding...deferring to a MJ who appears to know what he is doing happens all of the time.

On another note, this case and Marshall appear to be smackdowns to TCs to charge their cases better.

This case strikes me as an instance where it felt obvious to everyone in the courtroom of which incident this D was found guilty but this didn't translate into the record very well.

And does CAAF have to come out and call the ACCA judges "infidel donkeys" in order to get them to draft more than a paragraph per opinion? How much condescension can they throw ACCA's way before ACCA moves away from their irrational brevity?

John O'Connor said...

Anon 1624:

I hear what you're saying about the lack of experience in many TCs and the lack of mentoring. I was lucky, in that I spent my two law school summers at Code 46, so I had a bit of an appreciation of how appellate practice works before I hit the fleet as a TC. But there are resources for a TC to educate himself if they don't have a mentor or someone quick on the law. For instance, we got a sheet every quarter from (I think) Code 46 that had squibs on all the decisions during the past quarter. I used to cut them up so each squib was on is own piece of paper and file them by topic so I could look at them if an issue came up.

Lots of blame to go around. Funny, D.B. Cooper mentions that some charges had to be dismissed in a post-trial 39(a) session. Didn't anybody reviewing the record (say, an SJA or review officer) catch that the findings would cause a problem for Article 66 review?

Anonymous said...

I don't know what the griping on this board is about other than you guys think that sex offenders shouldn't have the benefits of legal precedent. This is a textbook Walters violation and exposes the defendant to double jeopardy because it's not clear of which offense he was convicted.

Anonymous said...

Look folks,

Nobody here is giving the connection b/w double jeopardy and Walters its proper attention. Hell, the ex-con gave y'all the low-down in the first post on this thread - take heed. It ain't hard, but we can slow it down for the marines if need be...

Anonymous said...

Look pal,

Read wonk 1 again. The DJ issue only rears its head in a member case.

I also will admit that this was some of Cossio's finest work.

Peter Wright said...

At the risk of sounding snarky; with these facts, it's actually the Army where you will need to speak slowly and keep your words very simple...As Cossio pointed out, in the Air Force there would be at at least a half dozen 0-4 and above (and one 0-3) JAG's reviewing every detail of this case. It makes everything go slower, but it does avoid these types of situations.

With that mild comment said, (please don't ban me, the post above was blaming the Marines) it never helps the legal system when someone who admitted his guilt gets off on a technicality. Sometimes punishments can be harsh, and so in my opinion I'd rather see mild sentance relief over outright dismissal because of a very technical technicality.

John O'Connor said...

The Double Jeopardy point is a red herring. With the finding not specifying which occasion within the range of dates charged, double jeopardy protects the accused against any specs involving the same cfonduct in that time period. You don't need tio let him walk to protect his against double jeopardy.

Anonymous said...

"The Double Jeopardy point is a red herring."

Two rapes alleged. The verdict necessarily finds him guilty of one and not guilty of the other, but we dont know which one.

In order to sentence him (i.e. dont let him walk), you have to have him convicted of one of them. You pick the wrong one and you've just convicted and sentenced him for a crime the judge found him innocent of.

You do a new trial? Same problem.

So how does this not fully involve double jeopardy?

The only possible solution would be to have the judge tell you which one it was, but that makes the large assumption the judge remembers and sets a precedent that anytime you have one of these cases you just send it back to the judge to "re-judge" the case (hoping the judge remembers exactly what they were thinking and doing possibly years earlier).

The guy goes free ultimately because of a pretty idiotic mistake by the judge and the TC, not because of CAAF.

Cossio said...

I think the article 66 issue was the main catalyst in CAAF's decision then DJ. However, it is still a valid issue.

Having said that my personal opinion is that courts have become too liberal in there application of DJ protections.

How is "fixing" this conviction placing an individual in danger of life and limb ? Yet court precedent has made it so.

Although I don't believe in DJ expansion to cover mistrial (watada, etc) I never was a fan of the "seperate soveriegns" exception. How is it fair for a person.......

Oh. Do I got an idea. Is anyone in contact with the legal office on appellant's base? How about getting the State on this and excercise the soveriegn exception rule ? In some state laws he should still register as a sex offender.

Thanks Mr. Wright, it seems the AF keeps the training wheels on a little longer on it's TCs.

The micromanaging of TC by half a dozen attorneys has it's obvious advantages here. But the caveat is a backlong of cases.

Cossio said...

*"backlog of cases", silly iPhone.

Dew_Process said...

By appealing, the Accused waived the STATUTORY double jeopardy provision in Article 44(b).

But, as the Army learned from Watada, there is also a Constitutional Double Jeopardy provision, which came into play in Wilson. As one post correctly noted, it is the TC's responsibility to "protect the Record" and when the MJ didn't specify which incident formed the basis for the conviction, that triggered the remedy.

In Burks v. U.S., 437 U.S. 1, at 18 (1978), the Court held: "the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient, the only “just” remedy available for that court is the direction of a judgment of acquittal."

The "ambiguous findings" are as a matter of law, insufficient.

Simply forcing the Accused back into the Courtroom for any purpose after that, violates the DJ clause.

A harsh result for a horrendous crime, but solely the fault of the TC unfortunately.

Dew_Process said...

PS: I forgot to add this from Burks,:

"the prosecution cannot complain of prejudice, for it has been given one fair opportunity to offer whatever proof it could assemble." Id., at 16.