Unpacking McCracken

First let's start with the easy and obvious point about the McCracken opinion that CAAF issued on Friday: all five judges agreed that NMCCA's resolution of the case was erroneous. Let's look at what NMCCA did.

Sgt McCracken was charged with a number of offenses including rape and adultery. The members found him not guilty of rape, but guilty of indecent assault as an LIO and guilty of adultery (plus a drunk and disorderly conviction). NMCCA concluded that the government hadn't proven beyond a reasonable doubt that Sgt McCracken had committed indecent assault. The panel then split 2-1 on the consequences of that decision. The NMCCA panel's majority affirmed a finding of guilty to indecent acts instead. Senior Judge Couch in dissent maintained that the majority erred by doing so because the theory upon which the majority affirmed a finding to indecent acts hadn't been presented to the members.

Sgt McCracken was carrying on a relationship while deployed in Iraq with a corporal who was married to an undeployed Marine. Until the night that led to the charges against Sgt McCracken, the relationship hadn't included intercourse. The married corporal testified that on that night, the two engaged in consensual "heavy petting" in Sgt McCracken's rack followed by Sgt McCracken taking off her bra against her wishes and then inserting his penis into her vagina against her wishes. Two other male Marines were in the room while all this was going on. Sgt McCracken denied that any nonconsensual activity took place. One of Sgt McCracken's roommates, who understandably considered the events that occurred in his room highly inconsiderate, reported it the following day.

In light of the consensual past relationship and the absence of any evidence that the married corporal reasonably manifested a lack of consent, NMCCA set aside the finding of guilty to indecent assault. United States v. McCracken, No. NMCCA 200600484, slip op. at 9 (N-M. Ct. Crim. App. Jan. 29, 2008). The NMCCA majority then observed:

We do, however, find that the evidence is legally and factually sufficient to support a finding of guilty to the lesser included offense of indecent acts with another. The appellant's sexual interactions with Cpl M, a married Marine in his squadron, while in his BEQ room in the presence of his roommates, and which were witnessed by them, were indecent. Prejudice to good order and discipline was evident when Cpl Labounty hurled an alarm clock at the couple from his rack across the room when he finally became fed-up with their antics.

Id., slip op. at 9-10 (internal citations omitted).

Here are the main points of contention in CAAF's decision.

1. WHY is NMCCA's opinion erroneous?

A three-judge majority of CAAF concluded that NMCCA erred because, as a matter of law, "under the circumstances of this case, open and notorious indecent acts under Article 134 . . . was neither expressly nor inherently a lesser included offense of the charged offense of rape under Article 120 . . . ." United States v. McCracken, __ M.J. ___, No. 08-0440/MC, slip op. at 2 (C.A.A.F. July 10, 2009). The majority explained that NMCCA "affirmed on the ground that McCracken's conduct was open and notorious, which was not the factual basis upon which members were instructed" concerning an indecent acts LIO. Id., slip op. at 3. In his separate opinion, Judge Stucky flatly concludes that indecent acts isn't an LIO of rape. Judge Baker also concludes that the indecent acts conviction must be set aside, because NMCCA affirmed the indecent acts conviction "on the ground that Appellant's conduct was open and notorious" and there's no way to know whether the members would have voted to convict Sgt McCracken on that basis. I may be misreading the majority's opinion or Judge Baker's opinion or both, but to me it appears that they reverse NMCCA and set aside the indecent acts conviction on the same ground.

2. What is the right remedy for NMCCA's error?

This issue seems to be the most clearly resolved. Sgt McCracken was originally sentenced to confinement for one year, forfeiture of all pay and allowances, a BCD, and reduction to E-1. Long after McCracken's entire period of confinement had elapsed, the NMCCA majority reassessed his sentence after reducing the indecent assault conviction to an indecent acts conviction and affirmed a sentence of confinement for six months, a BCD, and reduction to E-1. After setting aside the indecent acts conviction, CAAF was left with McCracken's convictions for adultery and drunk and disorderly. The CAAF majority concluded that setting aside the indecent acts conviction had "dramatically change[d] the penalty landscape in this case," thus requiring a sentence rehearing. Judge Baker didn't address the remedy, thus apparently agreeing with the majority. Judge Stucky summarily indicated that "[w]ith regard to the remedy, rather than order a sentence rehearing, I would remand to the United States Navy-Marine Corps Court of Criminal Appeals for sentence reassessment."

3. Can one offense be a lesser-included offense of another offense based on their inherent relationship rather than on their elements?

Judge Stucky's opinion is the only one of the three to expressly address this issue. Here's how it arises. In the first sentence of the majority opinion, in an example of the BLUF format of opinion writing (which I love), Judge Erdmann writes, "we conclude as a matter of law that under the circumstances of this case, open and notorious indecent acts under Article 134 . . . was neither expressly nor inherently a lesser included offense of the charged offense of rape . . . ." McCracken, slip op. at 2 (emphasis added). This language doesn't directly indicate that one offense can be considered an LIO of another offense due to their inherent relationship, but it does seem to suggest, by negative implication, an endorsement of that concept. In his dissent, Judge Stucky sharply rejects that concept, observing that "[m]ore than fifteen years ago, this Court abandoned the 'inherent relationship' and 'fairly embraced' tests for lesser included offenses in favor of a statutory elements test." Citing the Supreme Court's opinion in Schmuck v. United States, 489 U.S. 705 (1989), Judge Stucky observed, "One offense is not a lesser included offense of another 'unless the elements of the lesser offense are a subset of the elements of the charged offense.' Schmuck, 489 U.S. at 716." Because indecent acts is an Article 134 offense and the terminal element of a 134 offense is not an element of a 120 offense, Judge Stucky concludes that the former can't be an LIO of the latter. In his separate concurrence, Judge Baker poses four questions, two of which implicate this point from Judge Stucky's separate opinion:

(2) Whether the elements test articulated in Schmuck v. United States, 489 U.S. 705, 716 (1989), precludes the President from delineating certain Article 134, UCMJ, offenses as lesser included offenses of enumerated offenses absent a statutory change to the enumerated offense;

(3) Whether the due process principles advanced in Schmuck can, as a matter of law, be satisfied through mechanisms of fair notice other than the elements test.

The majority in McCracken observed that such questions "are reserved for another day." McCracken, slip op. at 4 n.2. That day is coming soon. On 1 July, CAAF granted review of this issue:

WHETHER APPELLANT'S CONVICTION FOR INDECENT ACTS WITH ANOTHER MUST BE SET ASIDE BECAUSE THE MILITARY JUDGE ISSUED ERRONEOUS AND MISLEADING INSTRUCTIONS SUPPORTING INDECENT ACTS AS AN AVAILABLE LESSER-INCLUDED OFFENSE TO THE ORIGINAL RAPE CHARGE AND THE RESULTING CONVICTION UNDER CHARGE I AND ITS SPECIFICATION AMOUNTED TO A FATAL VARIANCE.

United States v. Jones, __ M.J. ___, No. 09-0271/AF (C.A.A.F. July 1, 2009) (order).

Despite the majority's "reserv[ing] judgment" language in footnote 2, Judge Baker's concurrence suggests that "[i]t may well be that the majority opinion currently resolves each of [four questions he raises] by implication." In addition to the two questions noted above, Judge Baker asks:

(1) Whether or not the offenses expressly listed by the President as violations of Article 134, UCMJ, such as indecent acts, that are identified in the Manual for Courts-Martial, United States as a lesser included offense to a particular enumerated offense can satisfy the requirements of Article 79 . . . as a 'necessarily included' lesser offense'[];

. . . .

(4) What appellate effect, if any, does an agreement by the parties at trial that an offense is a lesser included offense have on the greater offense being considered on appeal.

Judge Baker's concurrence asks four questions, but it raises another question in my mind: what does footnote 1 of Judge Baker's concurrence mean?

I must be misconstruing footnote 1. In his concurrence, Judge Baker writes, "we cannot know whether the members would have found the act in question indecent because it was 'open and notorious' based on all the facts and circumstances had they not found Appellant guilty of indecent assault." He then drops a footnote that begins, "Had the members rejected the greater offense of rape and indecent assault, they would necessarily have been left with private consensual sexual conduct between unmarried persons in the absence of the evidence offered by the defense." Huh? Since Sgt McCracken was found guilty of adultery, presumably apart from any evidence offered by the defense, the members knew that this was NOT conduct "between unmarried persons." NMCCA's opinion tells us that the corporal with whom Sgt McCracken engaged in sexual activity was married to a Marine sergeant. So what does this language mean? Also, is conduct that occurs in a barracks room inhabited by two other Marines "private"? I would say not -- I certainly wouldn't say that the members "necessarily" would find such conduct private. Finally, what does "in the absence of the evidence offered by the defense" mean? This case doesn't involve an argument that the military judge erroneously denied a motion for finding of not guilty. Why would we look at the evidence "in the absence of the evidence offered by the defense"? When the case went to the members, that evidence was before them as well.

As I said, I must be misreading Judge Baker's concurrence, since it doesn't seem possible that he could have been suggesting that the sexual conduct in this case involved unmarried Marines. Can someone please explain to me what I'm missing?

The majority's opinion strikes me as a very narrow decision answering the narrow granted issue: "WHETHER THE LOWER COURT ERRED BY AFFIRMING A LESSER-INCLUDED OFFENSE BASED ON A THEORY OF CRIMINALITY NOT PRESENTED BY THE GOVERNMENT AT TRIAL." I see Judge Stucky's point about a negative implication suggested by the majority's opinion, though the majority certainly does not indicate that it is making law on that issue, but rather eschews doing so in footnote 2. And I'm largely confused by Judge Baker's concurrence, which seems to decide the issue on the same basis as the majority opinion.

Fortunately Jones will revisit this area of the law early next term. That case should answer many of the questions that McCracken raises.

Quick McCracken observation

Interestingly, the majority went the same way -- and for the same reason -- as Senior Judge Couch's dissent below. Senior Judge Couch, on whom the No Man bestowed "The Great" status, recently left NMCCA when he retired from the Marine Corps.

More later as I continue to explore the points of contention among CAAF's three opinions in McCracken.

New CAAF decision on CCA's authority to affirm an LIO on a theory not presented to the trier of fact at the court-martial

United States v. McCracken, __ M.J. ___, No. 08-0440/MC (C.A.A.F. July 10, 2009). Judge Erdmann writes for the majority. Judge Baker concurred in the result while Judge Stucky concurred in part and dissented in part.

The majority observed that NMCCA affirmed a finding of guilty to indecent acts based on a theory that the members weren't instructed on at trial. CAAF proceeded to quickly conclude that NMCCA erred by doing so, quoting United States v. Riley, 50 M.J. 410, 415 (C.A.A.F. 1999), for the proposition that an appellate court can't affirm an LIO on a theory not presented to the trier of fact. CAAF then set aside the sentence while authorizing a rehearing.

Judge Baker concurred in the result, noting that he "would decide this case based on the instructions given to the members by the military judge, rather than by breaking what is arguably new and unexplained ground in the law involving lesser included offenses." He observed that "the nature of the definition of indecent acts provided in the instruction in this case precluded the lower court from affirming the lesser included offense." Judge Baker then presented a list of legal questions that he suggests the majority decided by implication.

Judge Stucky also wrote separately, proclaiming that "indecent acts with another is simply not a lesser included offense of rape." Rather than remand for resentencing, he would return the case to NMCCA for reassessment of the sentence.

I'm still trying to understand all of the facets of the disagreements among the judges. The lines of demarcation between the majority opinion and Judge Baker's concurrence aren't readily apparent, though I think I understand the doctrinal distinction that Judge Stucky is making about how LIOs are to be determined. More later.

New CAAF opinion on detailing authority for defense counsel

United States v. Wiechmann, __ M.J. ___, No. 09-0082/MC (C.A.A.F. July 6, 2009). Chief Judge Effron writes for the majority, holding that "the convening authority erred in treating one of Appellant's defense counsel as not properly detailed," but concluding that the error was harmless. Judge Ryan concurred in the judgment.

After a captain with very little defense experience was detailed to represent a retirement-eligible lieutenant colonel, the Chief Defense Counsel of the Marine Corps detailed a highly respected Marine Reservist LtCol (Jon Shelburne) as a defense counsel in the case. The Reservist LtCol was on the East Coast and the case was being tried in Hawaii. The CA balked at providing funding for the Reservist's representation of the accused, contending that there was no authority for the Chief Defense Counsel of the Marine Corps to detail the Reservist to the case. When the Reservist sought a continuance of the Article 32 investigation, noting the funding problem, the CA responded that the Reservist "is not detailed as counsel and has no authority to act in this matter.” The Reservist subsequently showed up at the 32. The IO refused a defense request for a continuance, but allowed the Reservist to participate as defense counsel over the trial counsel's objection. When the two defense counsel tried to submit a PTA proposal to the CA, the CA refused to accept it, maintaining that the Reservist hadn't been properly detailed. The inexperienced active duty counsel then resubmitted the proposal without the Reservist's name on it, at which point the CA agreed to consider to PTA proposal, which the CA ultimately denied after refusing to meet with the Reservist.

The case was then referred to a court-martial. A military judge refused to allow the Reservist to participate in an 802 conference. Another military judge presided over the court-martial. He ruled that the Reservist had been properly detailed and that the Chief Defense Counsel of the Marine Corps had the authority to detail him. The military judge denied a UCI motion and a motion to reopen the Article 32 due to the limitations on the Reservist's ability to represent the accused at that point. While the motions were pending, the CA met with the Reservist concerning a PTA and ultimately the parties entered into a PTA.

During the plea inquiry, the military judge advised the accused that by entering into the PTA, he was giving up his right to challenge the denial of the motion for a new 32 and he was waiving any defect in the 32.

CAAF treated the military judge's ruling that the Reservist had been properly detailed as the law of the case. CAAF then ruled:

[T]he convening authority erred by restricting the role of Appellant's detailed defense counsel during the pretrial proceedings, including the proceedings concerning the Article 32 investigation and pretrial agreement negotiations. In so doing, the convening authority improperly interfered with the attorney-client relationship established at the time of LtCol Shelburne's initial detail as Appellant's defense counsel. These actions violated Appellant's rights under Article 27, UCMJ.

CAAF also concluded that "the Government's actions infringed Appellant's right to the assistance of counsel under Article 27 during pretrial proceedings before both the convening authority and the military judge."

CAAF then assessed whether the accused had been prejudiced by the error. First, CAAF held that there was not a denial of counsel rising to the level of a structural error. The court therefore had to determine whether the error was harmless. The majority then assumed without deciding that the error constituted a Sixth Amendment violation and performed a constitutional harmlessness test, concluding that the error was harmless beyond a reasonable doubt.

Judge Ryan wrote separately. She concluded that the error in this case was statutory and was not a constitutional violation. She pointed out that at all relevant times, the accused was represented by a detailed defense counsel who was recognized by the government and there is no claim that that counsel's representation was deficient. She observed that "a military accused has neither the absolute right to detailed counsel of choice, nor the right to the assistance of two counsel." Judge Ryan concluded that "there is no basis for even suggesting that Appellant's Sixth Amendment rights were violated by the limitations placed on Lt. Col. Shelburne."

CAAF opinion alert

CAAF has issued its opinion in United States v. Paige, __ M.J. ___, No. 08-0805/MC (C.A.A.F. July 1, 2009).

CAAF opinion alert

CAAF has released its opinion in United States v. Chatfield, __ M.J. __, No. 08-0615/NA (C.A.A.F. June 26, 2009). The opinion is available here.

Thinking about the Wilson remedy

As we noted yesterday, it appears that the evidence established beyond any reasonable doubt that SSG Wilson raped his step-daughter at least once. He was charged with raping her on divers occasions. The military judge found him guilty except for the words "on divers occasions" but didn't specify which was the one occasion for which she was convicting him. Applying the Walters/Seider line of cases, a four-judge majority of CAAF set aside the finding of guilty to what had originally been the divers occasions spec under the reasoning that ACCA couldn't know which specific instances SSG Wilson had been acquitted of and which specific instance he had been convicted of, thus preventing it from carrying out its appellate review function under Article 66. I'm not a fan of Walters and Seider doctrinally, but I can buy this as a fair (though debatable, see Judge Stucky's dissent) application of that case law. [If we really buy the principle underlying Walters and Seider, then it's impossible for a CCA to review any divers occasion finding of guilty where the government presents evidence of at least three acts, because the CCA can never know whether the members found the accused guilty of any particular incident or not. But CAAF -- with the exception of Judge Erdmann -- balked at taking the line of cases to its logical extreme in United States v. Rodriguez, 66 M.J. 201 (C.A.A.F. 2008). But that's a debate for another day.]

What I find particularly dissatisfying about Wilson is the remedy. Here's the majority opinion's complete remedy section:

"[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.

United States v. Wilson, __ M.J. ___, No. 09-0010, slip op. at 16 (C.A.A.F. June 18, 2009).

First, this is a correct application of CAAF's own case law and is thus supported by the doctrine of stare decisis. But stare decisis doesn't operate as a straight jacket when a court is applying its own precedent. CAAF could depart from Scheurer on this point if it wants to. And for the reasons I'll discuss below, it should want to. Perhaps Army GAD will file a petition for reconsideration to give CAAF an opportunity to decide whether it wants to.

The original Walters case was tried before members. See 58 M.J. 391, 392 (C.A.A.F. 2003). In a members case, there's no practical way to send the case back to the members for clarification as to the basis for the verdict. So CAAF's remedy in Walters -- setting aside the finding of guilty and dismissing the affected charge -- made sense. Seider was also a members case, see 60 M.J. 36, 36 (C.A.A.F. 2004), so the remedy of setting aside the finding of guilty and dismissing the affected specification made sense there as well. Augspurger? Also a members case. See 61 M.J. 189, 190 (C.A.A.F. 2005).

So what about Scheurer, which the Wilson majority quoted? Scheurer was a judge-alone case. See 62 M.J. 100, 103-04 (C.A.A.F. 2005). Here's Scheurer's entire analysis of the proper remedy for the Walters/Seider violation in that case:

Because double jeopardy principles would bar any rehearing on incidents of which Appellant was found not guilty, and because ambiguous findings preclude distinguishing incidents that resulted in acquittal from the single incident that resulted in a conviction, the remedy for a Walters violation is to set aside the finding of guilty to the affected specification and dismiss it with prejudice. See 58 M.J. at 397; see also United States v. Seider, 60 M.J. 36 (C.A.A.F. 2004). Accordingly, we set aside the finding of guilty to specification 3 of the original Charge and dismiss that specification with prejudice.

62 M.J. at 112.

It's probably true that in members cases like Walters, Seider, and Augspurger,"ambiguous findings preclude distinguishing incidents that resulted in acquittal from the single incident that resulted in a conviction." But that isn't as apparent in judge-alone cases like Scheurer and Wilson. I don't know whether Judge Wright remains in a judicial billet, but let's assume that she does. Why can't the case be remanded to her to clarify the basis for the conviction? R.C.M. 1102 would appear to provide a vehicle for doing precisely that. So there's a potential alternative remedy. But what if Judge Wright is no longer in a judicial billet? Then things get a little more tricky. Military Rule of Evidence 509 may preclude accepting evidence from former-Judge Wright, such as an affidavit, explaining the basis for her conviction. A case is currently pending before CAAF -- United States v. Matthews, No. 08-0613/AR -- that may clarify the answer to that question. The issue in Matthews is: "WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS ERRED IN HOLDING THAT MIL. R. EVID. 509 DOES NOT BAR THE GOVERNMENT FROM CALLING THE MILITARY JUDGE FROM A JUDGE-ALONE TRIAL TO TESTIFY AT A DuBAY HEARING AS TO HIS DELIBERATIVE PROCESS." The case was orally argued on 14 April, so while CAAF's judges probably know how it's going to come out, we might not see it for a while.

The answer to whether Military Rule of Evidence 509 would bar evidence from a former judge as to the basis of the findings of guilty doesn't matter if Judge Wright remains on the bench. And if she is no longer on the bench, the 10-day reconsideration window will probably close before we receive more guidance about the permissibility of obtaining an affidavit from her through a decision in Matthews. I hope that Army GAD files a petition for reconsideration to at least give CAAF an opportunity to consider whether, in a judge-alone case, there's an alternative remedy for a Walters/Seider violation short of setting aside a finding of guilty to an offense that's been proven beyond any reasonable doubt and dismissing the affected charge and/or specification.

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?

A quick follow-up to Weston

In the comments to our post about CAAF's Weston opinion, there have been several negative reactions to the notion advanced by Chief Judge Effron's concurrence that the inevitable discovery doctrine can apply based on the existence of probable cause even without a showing that law enforcement agents were actively attempting to obtain a search authorization. Remember that CAAF decided that very issue last term in United States v. Wallace, 66 M.J. 5 (C.A.A.F. 2008). Judge Stucky wrote for the majority, which found that the accused's consent to seize his computer wasn't voluntary. But the majority proceeded to uphold the seizure and subsequent search under the inevitable discovery doctrine even though the record contained no evidence that the OSI agents ever attempted to obtain a search warrant. In a concurrence, Judge Baker disagreed with the majority's approach to inevitable discovery, but voted to uphold the seizure on the basis that consent had been voluntary. In her concurrence, Judge Ryan declined to take a position on inevitable discovery because she agreed with Judge Baker that the accused's consent to seize his computer was voluntary.

My former colleague Vicki Belleau and I filed a cert petition, noting a deep split among the circuits over whether an "active pursuit" requirement exists to uphold a seizure under the inevitable discovery doctrine. Four circuit courts had adopted such a requirement while five (plus CAAF) had rejected it. See generally Eugene L. Shapiro, Active Pursuit, Inevitable Discovery, and the Federal Circuits: The Search for Manageable Limitations Upon an Expansive Doctrine, 39 GONZ. L. REV. 295, 296 (2003/2004). Despite this significant circuit split, the Supremes denied cert. Wallace v. United States, 128 S. Ct. 2943 (2008).

New CAAF opinion

United States v. Weston, __ M.J. ___, No. 08-0594/MC (C.A.A.F. June 11, 2009).

Have I mentioned lately that I love reading Judge Stucky's opinions? Here's how Weston starts:

There was something odd about the electric razor in the bathroom. Staff Sergeant (SSgt) ME, a female Marine court reporter, noticed it sitting on the wall locker shelf in the bathroom she shared with Appellant, the senior court reporter, whom she knew to be experienced with computers and surveillance equipment. SSgt ME typically changed clothes in the bathroom and for the past year had felt that she was being watched, a feeling that she attributed to paranoia. But this time the circumstances were simply too odd and her suspicions too strong. SSgt ME took the razor with her when she left work that day. Her attempt to open the razor’s casing ended at Sears with a "Torque" T7 screwdriver. Inside the razor she found a camera.

We granted review in this case to determine two issues. First, whether the search of Appellant's house was reasonable where Appellant objected to the search, but was not physically present when the search was conducted pursuant to his wife's consent. Second, if, as Appellant argues, the search was unreasonable under Georgia v. Randolph, 547 U.S. 103 (2006), whether the inevitable discovery exception would allow admission of the seized evidence. As we find that the search was reasonable under these circumstances, we do not reach the second issue.

Judge Stucky wrote the majority opinion, which was joined by Judges Baker and Ryan. Chief Judge Effron and Judge Erdmann each filed separate opinions concurring in the result.

Judge Stucky's opinion for the court explains that "CID obtained consent from Appellant's wife who possessed common authority over the premises." Id., slip op. at 1-11. "Appellant was a nonconsenting party who shared authority over the premises, but was not present to provide immediate challenge to his wife's consent to search. The 'fine line' drawn by the Supreme Court in Randolph indicates that physical presence and immediate challenge is required for the nonconsenting tenant's objection to nullify the reasonableness of the search. That was not the case here, thus the holding of Randolph does not apply and the search was reasonable." Id., slip op. at 11. The majority also rejects the notion that CID intentionally removed SSG Weston from his house to prevent him from objecting to the search. Id., slip op. at 10.

The majority considers and rejects the Ninth Circuit's approach, which might lead to a different result. See United States v. Murphy, 516 F.3d 1117, 1123-24 (9th Cir. 2008). The majority instead follows the Seventh and Eighth Circuits' approach. So it looks like SSgt Weston will have a pretty strong cert petition asking the Supremes to resolve a split among the circuits. See Weston, slip op. at 10. Surprisingly, it doesn't appear that the Solicitor General sought cert in Murphy. So SCOTUS could use Weston as a proxy to engage in one of the Court's favorite indoor activities -- reversing the Ninth Circuit.

Chief Judge Effron writes that he would resolve the case on inevitable discovery grounds. He catalogs the evidence that law enforcement agents already had when they conducted the consent search and concludes that it would have resulted in a probable cause search authorization had the agents not acted on the basis of SSgt Weston's wife's consent.

Judge Erdmann concludes that SSgt Weston's Fourth Amendment rights were violated when the search of his house was conducted over his objection. But he agrees with Chief Judge Effron that the evidence obtained by the search is nevertheless admissible under the inevitable discovery doctrine. Judge Erdmann reasoned:

If, as the majority holds, physical presence is required to overcome a cotenant's subsequent consent, then a situation where law enforcement officers keep an objecting cotenant from returning to his marital home where he could again voice his objection and do not allow him to communicate that objection to his spouse falls clearly within the Randolph exception.

. . . .

The Supreme Court noted in Randolph that "'it is beyond dispute that the home is entitled to special protection as the center of the private lives of our people.'" Randolph, 547 U.S. at 115 (citations omitted). Given that special protection and the fact that Weston was detained by the police while his house was searched, I would find that the actions of law enforcement violated Weston’s Fourth Amendment rights.

CAAF overrules cases treating prejudice to good order and discipline or service discrediting conduct as implicit in every UCMJ punitive article

United States v. Miller, __ M.J. ___, No. 08-0580/AR (C.A.A.F. June 10, 2009). Judge Ryan writes for a unanimous court. The issue is "whether the Courts of Criminal Appeals, after finding the evidence factually insufficient to support a finding of guilty to a charged violation of an enumerated article of the Uniform Code of Military Justice (UCMJ), may affirm a conviction to a 'simple disorder,' under Article 134, UCMJ, 10 U.S.C. § 934 (2000), as an offense necessarily included in the enumerated articles." Id., slip op. at 2. No, CAAF holds. "Article 134, UCMJ, is not an 'offense necessarily included' under Article 79, UCMJ, of the enumerated articles and may not be affirmed under Article 59, UCMJ." Id.

Miller is a highly significant case. It pulls a number of jurisprudential weeds, overruling the court's previous case law indicating that prejudice to good order and discipline and discredit to the armed forces is an element of every UCMJ offense, thus allowing various Article 134 offenses to be treated as LIOs of enumerated articles.

PVT Miller pleaded not guilty to resisting apprehension, but was nevertheless convicted of the offense. ACCA found that the evidence was factually insufficient to support a finding of guilty to resisting apprehension because he was already in custody when he tried to abscond and when he struck a Korean National Police investigator. ACCA instead affirmed a finding of guilty to a simple disorder, concluding that it could "substitute a lesser-included offense for the disapproved" finding "even if the lesser-included offenses was neither considered nor instructed upon at the trial of the case." ACCA also reasoned that PVT Miller was on notice of the LIO of a simple disorder "because every enumerated offense under the UCMJ is per se prejudicial to good order and discipline or service-discrediting." (quoting United States v. Fuller, 54 M.J. 107, 112 (C.A.A.F. 2000)).

Wrong answer, rules CAAF.

CAAF observes that the test for an LIO is whether the offense's elements are a subset of the greater offense's elements. And CAAF observes that Article 134 contains an element not present in Article 95: that the conduct be prejudicial to good order and discipline or service discrediting. CAAF then announced Miller's significant holding: "To the extent [previous decisions] support the proposition that clauses 1 and 2 of Article 134, UCMJ, are per se included in every enumerated offense, they are overruled." Miller, slip op. at 10.

CAAF then concluded, "Article 134, UCMJ, is not an offense necessarily included in Article 95, UCMJ. Consequently, the CCA was not authorized to affirm a finding of guilt to a simple disorder under Article 134, UCMJ." Id. (footnote omitted).

Finally, CAAF remands the case to ACCA for reassessment of the sentence.

In a term of narrow opinions, Miller stands out for its importance.

New CAAF decision: United States v. Nance

United States v. Nance, __ M.J. ___, No. 09-0164/AF (C.A.A.F. June 3, 2009). Unanimous opinion by Judge Ryan affirming the Air Force Court's ruling for the government.

CAAF holds that the providence inquiry sufficiently supported the appellant's plea that his use of Coricidin HBP Cough and Cold Medicine was prejudicial to good order and discipline. CAAF also addressed the manner by which providence inquiries are to be conducted. "Although this Court has stressed that the use of leading questions that do no more than elicit 'yes' and 'no' responses during the providence inquiry is disfavored, it has never been the law that a military judge's use of leading questions automatically results in an improvident plea. Rather, we examine the totality of the circumstances of the providence inquiry, including the stipulation of fact, as well as the relationship between the accused's responses to leading questions and the full range of the accused's responses during the plea inquiry." Id., slip op. at 9-10 (internal citations omitted).

Navy JAG certifies Article 120 constitutionality case to CAAF

On Friday, the Judge Advocate General of the Navy certified a case to CAAF dealing with the constitutionality of the new Article 120 and CAAF ordered an expedited briefing schedule. That expedited schedule makes me think that CAAF may hear oral argument on the case this term.

Here are the six issues specified in United States v. Neal, No. 09-5004/NA:

I. WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED IN FINDING IT HAD JURISDICTION OVER THIS ARTICLE 62, UCMJ, APPEAL, WHERE THE APPEAL WAS TAKEN AFTER THE CASE WAS ADJOURNED AND THE MEMBERS DISMISSED.

II. DESPITE THE LANGUAGE OF ARTICLE 120(r), UCMJ, WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS CORRECTLY HELD THAT THE ARTICLE DOES NOT PROHIBIT THE ACCUSED FROM INTRODUCING EVIDENCE OF CONSENT IN ORDER TO NEGATE AN ELEMENT OF THE OFFENSE.

III. CONCERNING THE AFFIRMATIVE DEFENSE SET FORTH IN ARTICLE 120(t)(16), WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS CORRECTLY HELD THAT CONGRESS CONSTITUTIONALLY ALLOCATED, TO THE ACCUSED, THE BURDEN OF PROVING CONSENT BY A PREPONDERANCE OF THE EVIDENCE.

IV. WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS CORRECTLY HELD THAT "LACK OF CONSENT" IS NOT AN IMPLICIT ELEMENT OF ARTICLE 120 CRIMES, INCLUDING THE CHARGED OFFENSE, GIVEN THE DEFINITION OF "FORCE" IN ARTICLE 120(t)(5), AND THUS ARTICLE 120, UCMJ, DOES NOT UNCONSTITUTIONALLY SHIFT THE BURDEN TO THE ACCUSED TO "DISPROVE AN ELEMENT OF THE OFFENSE."

V. WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS CORRECTLY HELD THAT THE EVIDENCE TRIGGERED THE AFFIRMATIVE DEFENSE OF CONSENT AS DEFINED IN ARTICLE 120(t)(16), UCMJ, DESPITE THE FACT THAT THE APPELLANT FAILED TO ACKNOWLEDGE THE OBJECTIVE ACTS OF THE ALLEGED OFFENSE.

VI. WHETHER THE FINAL TWO SENTENCES OF ARTICLE 120(t)(16), UCMJ, WHICH ALLOWS FOR CONSIDERATION AS TO WHETHER THE GOVERNMENT HAS DISPROVED THE AFFIRMATIVE DEFENSE OF CONSENT BEYOND A REASONABLE DOUBT, AFTER THE ACCUSED HAS PROVED THE DEFENSE BY A PREPONDERANCE OF THE EVIDENCE, CREATE A LEGALLY IMPOSSIBLE BURDEN ALLOCATION.

This is one of the rare cases where a Judge Advocate General certifies issues to CAAF on which the government prevailed at the CCA level. I understand that both the government and the defense sought certification -- a wise move by the government, since it has an obvious interest in obtaining a quick ruling on Article 120's constitutionality, though this case won't resolve every possible constitutional challenge to the new Article 120.

NMCCA's opinion in the case is available at 67 M.J. 675 (N-M. Ct. Crim. App. 2009) (en banc).

CAAF Opinion: Collier on Defense Right to Present Its Case

United States v. Collier, No. 08-0495/NA, is available online, here. In the 4-1 opinion (Judge Baker dissenting), CAAF reverses NMCCA in a case concerning the right to present a defense. Helpful summary courtesy of Judge Ryan'sBLUF opinion (more later):

This case presents the question whether the military judge erred in granting the Government’s motion in limine prohibiting Appellant’s defense counsel from cross-examining HM2 C, the main Government witness, about an alleged homosexual romantic relationship between her and Appellant and from introducing any evidence of such a relationship. While the military judge did permit cross-examination about a close friendship, the defense that Appellant wanted to present was that HM2 C framed Appellant for larceny as a result of their romantic relationship ending badly. Because of this ruling, Appellant was free only to assert the motivation of an angry friend rather than a disappointed lover; as the Government then argued in its closing, the motivation of an angry, vengeful friend “strains all logic; it’s just not credible.”. The military judge’s ruling prevented Appellant’s counsel from fully exploring HM2 C’s bias and motive to misrepresent the truth, and precluded Appellant from presenting her theory of the case.

Under the circumstances of this case, including the fact that in its closing argument the Government exploited the evidentiary limitation it requested to criticize the theory with which Appellant was left, we find this constitutional error was not harmless beyond a reasonable doubt.

Judge Ryan's analysis finds some evidence of the relationship existed and then moves on to unfair prejudice. Her unfair prejudice analysis contains this surprising (at least to me) passage:

This Court has not allowed the military’s policy on homosexuality to prevent evidence of homosexuality from being used against an accused. See Phillips 52 M.J. at 272-73 (permitting trial counsel to offer evidence that the accused was engaged in a homosexual relationship). And we see no principled reason to prevent an accused from using this same type of evidence to potential advantage, particularly where, as here, Appellant was the proponent of the evidence of a homosexual relationship with the Government’s primary witness.

While the sauce for the goose is sauce for the gander argument is the stock and trade of appellate defense types (I resemble that remark), it was surprising to see CAAF trumpet the same argument. Interestingly, the harmless error analysis is comparably rather bland and until the analysis of the larceny, where Judge Ryan makes the obvious point, as JO'C already commented, that "there is a qualitative difference between the cross-examination permitted by the military judge and the prohibited inquiry into a failed romantic, sexual relationship." A final turn of phrase from Judge Ryan sums up her analysis,

Adding insult to injury, the Government exploited the very evidentiary limitation it requested in closing argument. "Are we supposed to believe that [HM2 C] or somebody else went out and spent $2,700.00 on tools to set this up because she’s mad at somebody? That strains all logic; it’s just not credible."

The dissent takes exception with the level of deference to the military judge's findings and actually takes issue with the qualitative difference suggested by the majority. Judge Baker writes, "It equally 'strains all logic' to suggest that an angry, vengeful lover would go to such extremes, but that an 'angry, vengeful friend' would not." I guess Judge Baker doesn't watch a lot of Jerry Springer.

CAAF rejects Care inquiry challenge

CAAF rejected a Care inquiry challenge today in United States v. Riddle, __ M.J. ___, No. 08-0739/AR (C.A.A.F. May 12, 2009). Judge Stucky wrote for the majority. Chief Judge Effron, joined by Judge Erdmann, dissented.

Judge Stucky offers this helpful BLUF synopsis of the opinion:

Appellant asserts that her guilty pleas were improvident because the military judge did not explain or discuss the defense of lack of mental responsibility during the plea inquiry. We hold that Appellant’s pleas were provident and that under the facts of this case the military judge was not obligated to explicitly explain or discuss that defense with Appellant.

Id., slip op. at 2.

The majority explains that "[a] military judge can presume, in the absence of contrary circumstances, that the accused is sane and, furthermore, that counsel is competent." If "the accused's statements or material in the record indicate a history of mental disease or defect on the part of the accused, the military judge must determine whether that information raises either a conflict with the plea and thus the possibility of a defense or only the 'mere possibility' of conflict. The former requires further inquiry on the part of the military judge, the latter does not." Id., slip op. at 9-10 (internal citation omitted). In this case, the majority concluded, "The record of trial makes clear that neither Appellant's conduct nor her mental health history created more than the mere possibility of conflict with her pleas." Id., slip op. at 11. The majority proceeded to set out specific facts from the record supporting this conclusion. Id., slip op. at 12-13.

Chief Judge Effron offers this helpful BLUF synopsis of the dissent:

The plea colloquy in this case between Appellant and the military judge raised a possible defense of lack of mental responsibility under Rule for Courts-Martial (R.C.M.) 916(k). These circumstances required the military judge to engage in a further inquiry to resolve the apparent inconsistency raised by the plea colloquy. The military judge did not do so. Accordingly, I respectfully dissent from the conclusion of the majority opinion that the military judge did not err in the conduct of the plea inquiry.

Riddle, dissent slip op. at 1 (internal citation omitted). Looking at the facts, the dissent concludes that the "trial developed information that presented more than a 'mere possibility' of a defense, raising 'a possible defense' of lack of mental responsibility requiring further inquiry by the military judge." Id. at 6 (internal citation omitted).

Like so many CAAF decisions this year, this case doesn't appear to present a doctrinal disagreement. Rather, the court's judges performed a detailed analysis of the facts and came to different conclusions, both of which were defensible and well-defended.

As a matter of judicial craftsmanship, both the majority and the dissent read like majority opinions. It makes me wonder whether Chief Judge Effron was originally in the majority and one of the judges flipped. Of course, we'll never know.

CAAF releases Sanders opinion

CAAF made short work of Sanders, a case in which it heard oral argument less than a month ago. In a six-page per curiam opinion, CAAF held that any potential error in the admission during the government's sentencing case of a letter written by the accused wasn't prejudicial. United States v. Sanders, __ M.J. ___, No. 09-0013/AF (C.A.A.F. May 12, 2009) (per curiam). If 2008 was the Year of Jurisdiction, this term is starting to look like the Year of Narrow Opinions. I hasten to add, to paraphrase Seinfeld, not that there's anything wrong with that.

CAAF finds waiver in Campos

Here's a link to CAAF's opinion in United States v. Campos, __ M.J. ___, No. 08-0409/NA (C.A.A.F. May 8, 2009). In an opinion by Judge Erdmann, CAAF holds that Seaman Campos waived his right to challenge the admissibility of a stipulation of expected testimony on appeal. Supporting its holding of waiver, CAAF observed that "both parties had stipulated" that the witness "need not appear at the trial. In addition, prior to admitting the document into evidence the military judge asked if there were any objections and defense counsel expressly indicated that he had none." Id., slip op. at 6. CAAF held, "In light of the military judge's detailed explanation of the stipulation, Campos's agreement to 'use of' the stipulation, and defense counsel's representation that he desired to enter into the stipulation, the record clearly reflects that Campos waived any right to claim error on the ground that Dr. Arnold did not personally appear to present live testimony." Id. CAAF then addressed what it termed the more difficult issue of whether the defense counsel's statement that he had no objection constituted a waiver of any challenge to the stipulation's admissibility. Yes under the facts of this case, held CAAF. The record establishes that the defense counsel had advance notice of the stipulation's contents and the defense counsel raised no objection. No claim of IAC was raised on appeal.

While joining in the majority's resolution of the waiver issue, Judge Baker wrote separately to raise concerns as to whether the military judge overly deferred to the expert's recommendation concerning the minimum sentence that should be imposed.

Of course, Campos joins United States v. Gladue, __ M.J. ___, No. 08-0452/AF (C.A.A.F. Apr. 28, 2009), to become the second recent CAAF opinion to apply waiver as a bar to reaching the substantive issue in the case. In a 2000 dissent, Chief Judge Crawford accused the majority of "swim[ming] in a sea of paternalism." United States v. Scalarone, 54 M.J. 114, 119 (C.A.A.F. 2000) (Crawford, C.J., dissenting). CAAF seems to have gotten out of the water and started to towel itself off.

CAAF releases its opinion in Delarosa

Here's a link to CAAF's opinion in United States v. Delarosa, __ M.J. __, No. 08-0390/NA (C.A.A.F. May 6, 2009). Chief Judge Effron wrote for the majority affirming the Navy-Marine Corps Court. Judge Erdmann dissented. The majority held that Petty Officer Delarosa's confession to civilian law enforcement authorities was properly admitted.

Petty Officer Delarosa was suspected of killing his infant son. Interestingly, he was initially tried in a Virginia court where the judge suppressed his confession. See id., slip op. at 7. He was later tried by the military, where the military judge, the Navy-Marine Corps Court, and now CAAF all ruled that his confession was admissible.

The day after Delarosa's son died, he went to a Norfolk police station, where he was questioned by detectives. He indicated that he wanted to speak with the detectives. The detectives told him he must first identify his son's body and be advised of his rights. During the rights advice process, Delarosa repeatedly interrupted to say he wanted to talk to the detectives. But after indicating on the rights advisement form that he understood his rights, Delarosa wrote "NO" next to this block: "I further state that I waive these rights and desire to make a statement." He then wrote "N/A" next to this block: "This statement is completely free and voluntary on my part without any threat or promise from anyone." When the detectives expressed their confusion as to why Delarosa had written "NO" on the waiver block when he had expressed a desire to speak about his son's death, Delarosa indicated that he wanted to talk to the detectives but wanted a command representative present. A detective told him that a command representative wouldn't be allowed to be present, but reiterated that Delarosa had a right to counsel. Delarosa didn't request a lawyer, but reiterated his request for a command representative. The detectives then left the room and told Delarosa to review the rights advisement form and knock on the door when he had made a decision.

About 35 minutes later, one of the detectives returned to the interrogation room to ask Delarosa if he would take a polygraph. About two hours later, when one of the detectives was accompanying Delarosa on a head call, Delarosa learned that his wife was at the station and about to be polygraphed. Delarosa then said he wanted to talk to the detectives about his son's death. The detective said they couldn't speak with him because of his "No" answer on the rights advisement form. Delarosa responded that he had been confused and he now wanted to waive his rights and take a polygraph. The detectives later readvised Delarosa of his rights. This time, he answered that he wanted to waive his rights. During a post-polygraph interrogation, he made self-incriminating statements that were then used against him at his court-martial, over his objection.

The issue central to CAAF's decision was whether Delarosa had ever unequivocally invoked his Miranda rights. CAAF concluded that he had not. CAAF reasoned, "In light of Appellant's repeated statements reflecting an intent to cooperate, Appellant's 'NO' response on the rights advisement form was ambiguous." Id., slip op. at 19. Because Delarosa didn't unequivocally invoke his Miranda rights, there was no constitutional requirement for the detectives to stop questioning him. Id., slip op. at 20. CAAF also held that Delarosa's decision to make incriminatory admissions was voluntary, knowing, and intelligent. Id., slip op. at 21.

Judge Erdmann concluded that Delarosa unambiguously invoked his right to remain silent: "Upon determining that Delarosa would not waive his right to remain silent unless a command representative was present, and since police policy would not allow that presence, the detectives had the necessary clarification and Delarosa's invocation was unambiguous." Following that unambiguous invocation, Judge Erdmann concluded, the detectives failed to scrupulously honor it.

Yesterday's CAAF decisions

United States v. Gardinier, __ M.J. ___, No. 06-0591/AR (C.A.A.F. Apr. 28, 2009), is a highly case-specific decision in which CAAF unanimously reverses ACCA on a harmless error determination. It doesn't seek to develop the law; rather, it's an application of existing law to the specific factual context of the case. Judge Erdmann wrote for the court.

More significant (unless you happen to be Staff Sergeant Gardinier) is yesterday's decision in United States v. Gladue, __ M.J. ___, No. 08-0452/AF (C.A.A.F. Apr. 28, 2009). The most important lesson of Gladue is that a PTA term that waives all waivable motions will preclude appellate consideration of a multiplicity claim. CAAF split 3-2 over whether a multiplicity claim is waived by such a PTA term even if the military judge doesn't expressly advise the accused that he or she is waiving all multiplicity claims. Writing for the majority, Judge Stucky says it does. A PTA term that waives "any waivable motions waive[s] claims of multiplicity and unreasonable multiplication of charges and "extinguish[es]" an accused's "right to raise these issues on appeal." Id., slip op. at 9. Writing for himself and Chief Judge Effron, Judge Baker says that an appellate court shouldn't find that such claims are waived where the military judge didn't so advise the accused. But Judge Baker and Chief Judge Effron concur in the result, concluding that even if the multiplicity issue wasn't considered waived, it was a loser on appeal.

Two new CAAF opinions

CAAF issued two opinions yesterday: United States v. Gladue, __ M.J. ___, No. 08-0452/AF (C.A.A.F. Apr. 28, 2009); and United States v. Gardinier, __ M.J. ___, No. 06-0591/AR (C.A.A.F. Apr. 28, 2009). I"ll try to post summaries tonight.