ACCA rejects challenge to providence of drug possession plea

An accused intends to distribute all of his marijuana. He inadvertently leaves a baggie in his pocket after he has distributed the rest. Does his statement during the providence inquiry that he was unaware of his continued possession of the baggie's content invalidate his plea? No, rules ACCA in a published opinion. United States v. Gonzalez, __ M.J. ___, No. ARMY 20080111 (A. Ct. Crim. App. June 26, 2009). Chief Judge Beck wrote for a unanimous panel.

ACCA explains:

A person who knowingly possesses a substance and thereafter misplaces or forgets about it or through inadvertence fails to distribute all of what he intended is nonetheless guilty of knowing possession when that substance is thereafter found within the person's control. Subsequent forgetfulness or negligence in possession does not negate otherwise-knowing possession of a controlled substance under Article 112a.

Id., slip op. at 4.

ACCA recommends a change to the Benchbook to reflect that statement of the law: "We specifically disapprove any implication to the contrary in Dept of the Army Pam. 27-9, Legal Services -- Military Judges' Benchbook, paragraph 3-37-1, note 3 and encourage the drafters to revise the note." Id., slip op. at 4. n.4.

To me, the most surprising thing about the opinion is that "Elisa" is a guy's name.

BREAKING NEWS: Government moves for recon, recon en banc, and oral argument in U.S. v. Nerad

We previously discussed AFCCA's holding in United States v. Nerad, __ M.J. ___, No. ACM 36994 (A.F. Ct. Crim. App. May 29, 2009), that it has the authority and discretion to invalidate a finding of guilty that was legally and factually sufficient. The Air Force Government Trial and Appellate Counsel Division today filed motions with AFCCA asking the court to reconsider that opinion, asking for reconsideration en banc, and asking for oral argument.

We're putting in a FOIA request for JAJG's filings. We'll post them when we get them.

NMCCA issues unpublished opinion in Moreno

NMCCA today issued a lengthy unpublished opinion affirming Cpl Moreno's conviction and dishonorable discharge (the max authorized sentence under CAAF's opinion) on remand. United States v. Moreno, No. NMCCA 200100715 (N-M. Ct. Crim. App. June 23, 2009). We've posted the opinion here.

New published NMCCA opinion upholding conviction under Article 134 clauses (1) and (2) as alternative to Article 134 clause (3)

NMCCA issued a published opinion today revisiting the vexsome question of the proper relationship between Article 134 clauses (1) and (2) and Article 134 clause (3). United States v. Purdy, __ M.J. ___, No. NMCCA 200700659 (N-M. Ct. Crim. App. June 17, 2009). The opinion isn't yet on NMCCA's web site, so I've posted a copy here. Senior Judge Geiser wrote the opinion of the court, in which Judge Kelly and Senior Judge Couch joined. Senior Judge Couch also wrote a separate concurring opinion.

The opinion is sketchy on the precise fact pattern giving rise to the clauses (1) and (2) versus clause (3) issue. But here's what I think happened, piecing together the pieces of the puzzle that the opinion provides and guessing at the rest. Petty Officer Purdy was charged with receiving and possessing child pornography under Article 134 clause (3) for violating 18 U.S.C. § 2252A. The accused pleaded not guilty to the specification as worded, but guilty to an LIO of violating Article 134 clauses (1) and (2). The military judge conducted the providence inquiry on that basis and ultimately accepted Petty Officer Purdy's plea and found him guilty on that basis. (If anyone is familiar with the record in this case, can you please confirm or correct that assumption about the facts?)

The court notes that the case was tried before CAAF decided United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008). The court continues, "Having considered Medina's refinement of Article 134, UCMJ, as applied to child pornography offenses under 18 U.S.C. § 2252A, we find the appellant's argument that his plea was improvident unpersuasive." Id. NMCCA observes that in Sapp, CAAF held that "clauses 1 and 2 are not necessarily lesser included offenses of offenses alleged under clause 3, although they may be, depending on the drafting of the specification." Id., slip op. at 4 (quoting Medina, 66 M.J. at 26). NMCCA observes that Medina, while preferring a "rigid 'elements test' over the 'implicit connection' referenced in" United States v. Sapp, 53 M.J. 90 (C.A.A.F. 2000), nevertheless "seemingly left the door open for the possibility of clauses 1 or 2 to serve as lesser included offenses of clause 3 under unspecified circumstances." Id., slip op. at 4 (footnote omitted).

But in Purdy, NMCCA sidesteps the question of "whether the appellant's conduct and the wording of the specification constitute a lesser-included offense under the facts and circumstances of this case." Id. NMCCA opines that the "gravamen of Medina is the protection of the appellant's right to a knowing and voluntary plea. Even assuming, arguendo, that the offense to which the appellant pled guilty was erroneously referred to as a lesser included offense, the ultimate issue under Medina is whether the appellant had fair notice he was pleading guilty to a distinct theory of liability as compared to that which appeared on the charge sheet." Id. NMCCA holds that in this case, the accused had such fair notice.

NMCCA observes that under Medina, "it is important for the accused to know whether he or she is pleading only to a crime or offense not capital under clause 3, a 'disorder or neglect' under clause 1, conduct proscribed under clause 2, or all three." Id., slip op. at 5 (quoting Medina, 66 M.J. at 26). NMCCA continues, "This can be accomplished either on the charge sheet or through the military judge during the plea inquiry." Id. (citing Medina, 66 M.J. at 27).

NMCCA then holds that in this case, "we are satisfied that the appellant's plea to clauses 1 and 2, as distinct from the charged clause 3 offense, was knowing and voluntary." Id. NMCCA observes that "the appellant voluntarily entered into a stipulation of fact in which he admitted that his conduct was both prejudicial to good order and discipline and service discrediting." Id. "Second, the appellant entered into a pretrial agreement in which he agreed to plead not guilty to the charged clause 3 offense, but instead plead guilty to offenses under clauses 1 and 2 of Article 134, UCMJ." Id. "Third, in expressly indicating that the appellant was pleading guilty to an offense other than that which appeared on the charge sheet, the military judge sufficiently explained the different theories of liability under each clause to include the fact that clauses 1 and 2 carry the additional elements of prejudice to good order and discipline and conduct of a nature to bring discredit to the service." Id.

NMCCA concludes that the "persistent references" in the record "to clauses 1 and 2 as 'lesser included offenses' of the charged clause 3 specification" do not "constitute a substantial basis in law or fact for questioning the guilty plea." Id., slip op. at 5-6.

While concurring in the majority opinion, Senior Judge Couch wrote separately to emphasize that a violation of clauses (1) and (2) of Article 134 shouldn't be considered an LIO of a violation of Article 134 clause 3 because clauses (1) and (2) each contains an element that isn't present in clause (3).

Fascinating published AFCCA opinion

AFCCA today issued a fascinating published opinion, which I've posted here. United States v. Nerad, __ M.J. ___, No. ACM 36994 (A.F. Ct. Crim. App. May 29, 2009). Senior Judge Francis wrote for a unanimous panel.

Senior Airman (SrA) Nerad was carrying on an adulterous affair with a 17-year-old. But for the fact that he was married, it would have been legal under both military and the relevant civilian law for SrA Nerad to have sex with her. His 17-year-old lover e-mailed to SrA Nerad nude and partially nude pictures of herself. He also took nude pictures of her, including some while they were engaged in sex acts.

Because his lover was younger than 18, SrA Nerad's possession of these images violated 18 U.S.C. § 2256(1). Thus, as AFCCA explains, "the appellant was in the unique position of having a relationship with someone he could legally see naked and, but for his existing marriage, legally have sex with, but could not legally possess nude pictures of her that she took and sent to him." Nerad, No. ACM 36994, slip op. at 5.

AFCCA observes: "Having considered the entire record, we conclude that the appellant's possession of the photos under these circumstances is not the sort of conduct which warrants criminal prosecution for possessing child pornography and that this conviction unreasonably exaggerates the criminality of his conduct." Id. The central question in Nerad was whether AFCCA could do anything about what it viewed as this unjust conviction. Yes, held AFCCA. The court concluded that Article 66 authorizes a CCA to set aside a conviction even where that conviction is legally sound and factually sufficient. The court thus assumes a kind of uber-prosecutorial discretion, authorizing it to void a conviction essentially on equity grounds.

AFCCA starts with the plain language of Article 66(c), which provides that a CCA "may affirm only such findings of guilty and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved." Id. (quoting Article 66(c), UCMJ) (emphasis supplied by AFCCA). Relying on this language, AFCCA holds that "it is clear that we can overturn a finding or sentence, even if it is correct in law and fact, if we find that it should not be approved." Id.

AFCCA then turns to Article 66's legislative history and concludes that it supports its construction of Article 66(c)'s language. Amusingly, the court relies in part on the Judge Advocate General of the Army's testimony to the House Armed Services Committee in 1949 complaining that the proposed Article 66(c) gave the Boards of Review too much power. Id., slip op. at 6-7.

After concluding that it has unconstrained discretion to overturn a finding of guilty, AFCCA proceeded to exercise that discretion:

[W]e find that under the unique circumstances of this case, the charge of possession of child pornography to which the appellant pled and was found guilty, though technically accurate, unreasonably exaggerates the criminality of the appellant's actions. That is particularly true given the fact that a conviction for child pornography would require . . . the appellant to register as a sex offender and the significant consequences of such registration, including the restrictions common to most states on where those registered may reside within any given community.

Id., slip op. at 7.

AFCCA provided no sentence relief. But, as suggested by its discussion of collateral consequences, merely setting aside the finding of guilty to the child pornography offense is quite meaningful.

NMCCA sets aside child porn distribution conviction in published decision

NMCCA today issued an important published opinion setting aside a finding of guilty to distribution of child pornography under 18 U.S.C. § 2252A(a)(2). United States v. Craig, __ M.J. ___, No. NMCCA 200800716 (N-M. Ct. Crim. App. May 28, 2009). Chief Judge O'Toole wrote for a unanimous panel.

NMCCA framed the issue in Craig as "whether 'posting an image' alone may constitute distribution." Id., slip op. at 5. Petty Officer Craig pleaded guilty to the child pornography distribution charge. The providence inquiry established that others could download a child pornography image from Petty Officer Craig's computer via LimeWire. But Petty Officer Craig was unaware of whether anyone had actually done so. NMCCA held that absent such an actual download, no offense is committed under § 2252A(a)(2). However, the court observed, making an image of child pornography available for download does violate other "statutory prohibitions against promoting or offering child pornography, and against its attempted distribution. See §§ 2251(d), 2252A(a)(3)(B), 2252A(a)(6), and 2252A(b)." Id., slip op. at 6.

NMCCA provided no sentence relief, reasoning that the facts that led to the distribution conviction would have been admissible in sentencing even without the finding of guilty. Id., slip op. at 7. The military judge sentenced Petty Officer Craig to confinement for 18 months, reduction to pay grade E-1, and a bad-conduct discharge.

ACCA holds an accused's statements dissing the Army are admissible aggravation evidence in Article 86 case

ACCA issued a published opinion yesterday, holding that the military judge correctly overruled a defense objection to the admissibility during the government's case in aggravation of the accused's statements expressing disdain for the Army. United States v. Scheuerman, __ M.J. ___, No. ARMY 20080304 (A. Ct. Crim App. May 26, 2009). Judge Sullivan wrote for the majority.

ACCA reasoned: "Rule for Court-Martial 1001(b)(4) has a 'rather broad ambit.' United States v. Stephens, M.J. , slip op. at 4 (C.A.A.F. 12 March 2009). Appellant's poor attitude toward military service, which, in part, motivated his multiple AWOL periods, is a circumstance surrounding his offenses." Id., slip op. at 4. Characterizing the Army as the victim of the accused's Article 86 offenses, ACCA maintained that "[e]ssentially, appellant repeatedly made derogatory remarks about his victim and now complains those remarks should not be considered in his sentencing." Id., slip op. at 5.

New published AFCCA case narrowly construes R.C.M. 1001(b)(4)

AFCCA today issued a published opinion construing the scope of the government's case in aggravation suprisingly narrowly. United States v. Moore, __ M.J. ___, No. S31502 (A.F. Ct. Crim. App. May 20, 2009). Senior Judge Heimann wrote for the court, holding that in this case which included findings of guilty under Article 112a, the government couldn't present uncharged incidents of post-offense drug use as evidence in aggravation under R.C.M. 1001(b)(4).

New Published NMCCA Case, Garner

The Navy-Marine Corps Court of Criminal Appeals published a new opinion yesterday, United States v. Garner, No. 200800481, __ M.J. __ (N-M. Ct. Crim. App. May 19, 2009). The opinion affirms the findings and sentence, but on its way there the opinion has an extensive analysis of the "substantial step" requirement for the offense of attempting to entice a minor to engage in illegal sexual activity under § 2422(b) and finds unreasonable multiplication of charges. Here is the opinion's bottom line (which stretched the line between attempt and not a crime, in my opinion) on the "substantial step" requirement:

We are persuaded that the appellant’s “grooming” behavior, to include an expressed suggestion to meet in person, provide an adequate factual basis to support the appellant’s guilty plea to attempting to entice a minor to engage in illegal sexual activity under § 2422(b).

A short look at Yammine

Yesterday we noted NMCCA's new published en banc decision of United States v. Yammine, __ M.J. ___, No. NMCCA 200800052 (N-M. Ct. Crim. App. May 12 2009) (en banc). The case features an interesting dispute between the majority and Judge Booker, writing separately.

The case involves the permissibility of the government's use of child pornography evidence to prove that the accused engaged in sexual activity with a 14-year-old boy. The opinion offers a number of permutations on this theme, but here's the most important issue that the case presents, as framed by Senior Judge Couch's opinion of the court: "whether file names suggestive of possession of child pornography constitute a qualifying offense under MIL. R. EVID. 414, and are therefore admissible as propensity evidence against an accused in a prosecution for alleged acts of child molestation." Id., slip op. at 6. The majority says yes; Judge Booker says no.

Military Rule of Evidence 414(a) provides: "In a court-martial in which the accused is charged with an offense of child molestation, evidence of the accused's commission of one or more offenses of CHILD MOLESTATION is admissible and may be considered for its bearing on any matter to which it is relevant." Mil. R. Evid. 414(a) (emphasis added). The central issue in Yammine is thus whether possession of a file whose name suggests it contains child pornography is a "child molestation" offense. The majority agrees with Judge Beal that it is. Judge Booker disagrees.

The majority provides this analysis of the question:

[T]he military judge concluded that the possession or attempted possession of child pornography, a violation of 18 U.S.C. § 2252A, constitutes "an offense of child molestation" as it involves "deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain of a child" under MIL. R. EVID. 414(d)(5). AE XXIX at 3-4. Like the military judge, we are persuaded that this ruling is correct and is in concert with at least one federal court. Id. (citing United States v. Seymour, 468 F.3d 378, 385 (6th Cir. 2006)("Child molestation includes both conduct proscribed in Chapter 109A of Title 18, if committed against a child, and offenses involving child pornography.")). Further, we hold that possession, or attempted possession, of child pornography also qualifies as an "offense of child molestation" under MIL. R. EVID. 414(d)(2) and (g)(5) as "sexually explicit conduct with children . . . proscribed by . . . Federal law” because it involves the “lascivious exhibition of the genitals or pubic area of any person."

The majority adds in a footnote:

This holding is consistent with FEDERAL RULE OF EVIDENCE 414(d)(2) which defines an "offense of child molestation" as including possession or attempted possession of child pornography under chapter 110 of title 18, United States Code. 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2)); see also United States v. Bentley, 475 F. Supp. 2d 852, 856-57 (N.D. Iowa, Feb. 21, 2007), aff’d, 561 F.3d 803 (8th Cir. Iowa 2009).

In a concurring opinion, Judge Booker offers a lengthy counter-analysis that bears reading in full. Here's a short excerpt:

MIL. R. EVID. 414 permits the Government to introduce "evidence of the accused's commission of one or more offenses of child molestation." The rule defines an offense of child molestation to mean an offense punishable under the UCMJ, or a crime under Federal law or the law of a State, that involved (1) any sexual act or sexual contact or (2) any sexually explicit conduct with children proscribed by the UCMJ, federal law, or state law. MIL. R. EVID 414(d). "Sexually explicit conduct" for the purposes of the Rule means actual or simulated sexual intercourse; bestiality; masturbation; sadistic or masochistic abuse; or lascivious exhibition of the genitals.1 MIL. R. EVID. 414(g).

All the offenses included in the Military Rule involve being in the physical presence of a child. Notably, the Military Rule does not include "communicating indecent language to a child" or "transmitting obscene matter to a child” among the qualifying offenses. As noted in the Drafters' Analysis of the Military Rule and in the few cases interpreting the Military Rule, our rule is based on FEDERAL RULE OF EVIDENCE 414. The Federal Rule notably also does not include these sorts of offenses (the "obscenity" chapter of title 18 is Chapter 71; the Federal Rule mentions only Chapters 109A and 110). I am inclined to conclude, therefore, that the Rule is intended to cover only those acts that have been committed upon or in the presence of the child by the accused.

Yammine, slip op. at 22 (Booker, J., concurring) (footnote omitted).

This issue would seem appropriate for CAAF's resolution, though perhaps not in this case. Judge Booker concurs with the majority in affirming Sgt Yammine's conviction and sentence, concluding that the error was harmless. Id., slip op. at 25-26. Given the disturbing frequency with which the military justice system must deal with child molestation offenses, CAAF will no doubt soon enough be presented with this issue in a case where it may affect the outcome.

Another en banc published NMCCA opinion

United States v. Yammine, __ M.J. ___, No. NMCCA 200800052 (N-M. Ct. Crim. App. May 12 2009) (en banc). Senior Judge Couch for the court.

(Unfortunately, I probably won't have time to synopsize it tonight. I invite my colleagues to comment on it if they wish.)

BREAKING NEWS: NMCCA grants government's Crotchett appeal, rejecting new Article 120 challenge in published en banc ruling

In a published en banc decision released today, NMCCA rejected a challenge to the new Article 120.United States v. Crotchett, __ M.J. ___, No. NMCCA 200800770 (N-M. Ct. Crim. App. May 12, 2009) (en banc). Judge Booker wrote the opinion of the court.

The majority framed the issue as "whether an accused service member, in asserting an affirmative defense of consent, must disprove whether a victim is 'substantially incapable of communicating unwillingness to engage in the sexual act,' Article 120(c)(2)(C), in order to be acquitted." Id., slip op. at 2. The court held that "the statute does not require this of an accused." Id.

The majority notes an apparent "overlap of defense and Government burdens in prosecutions for aggravated sexual contact in a case where the defense wishes to present a defense of consent or mistake of fact as to consent." Id., slip op. at 4. But the court proceeds to analyze the statute in a manner that avoids a conflict. NMCCA offers this explanation of how the new Article 120 operates:

If the defense chooses to introduce the notion of consent into the trial, as is permitted (but not required), then the defense bears the burden of satisfying the finder of fact, by a preponderance of the evidence, that the victim used "words or overt acts indicating a freely given agreement to the sexual conduct at issue by a competent person." Art. 120(t)(14). The plain language of this provision assigns to the defense only the burden of convincing the finder of fact by a preponderance of the evidence of two objective determinations: were the words uttered or the overt acts made? If so, could they indicate freely given agreement? If the answer to either question is "no," the statute additionally allows an honest and reasonable mistake of fact as to the objective determinations (in other words, did the accused honestly and reasonably believe that he heard the words or saw the overt acts, and did he hold an honest and reasonable belief that they indicated freely given agreement?).

The affirmative defense does not require the accused to prove the alleged victim's actual agreement, nor actual capacity to agree; rather, the accused need only show that the alleged victim objectively manifested consent. The defense bears no burden of demonstrating that the words actually constituted a "freely given agreement" or that they were made "by a competent person." To the contrary, the burden of proof as to the element of the victim's actual capacity is, and always remains, on the Government, and this burden is beyond a reasonable doubt.

We return to the point that, notwithstanding the advancement of any particular affirmative defense, the Government always bears the burden in a prosecution under this subsection of proving beyond a reasonable doubt that the sexual act occurred, and that the victim was substantially incapable of communicating unwillingness to participate in the act. If the Government fails in any respect -- to prove beyond a reasonable doubt any element, or to disprove beyond a reasonable doubt the existence of a defense -- the accused must be acquitted.

Id., slip op. at 5-6.

Judge Maksym, joined by Judge Couch, dissented in part, noting concern over the constitutionality of Article 120(t)(16)--an issue whose resolution they viewed as unnecessary for purposes of this appeal. Id., slip op. at 8. Article 120(t)(16) provides, in part: "The accused has the burden of proving the affirmative defense by a preponderance of evidence. After the defense meets this burden, the prosecution shall have the burden of proving beyond a reasonable doubt that the affirmative defense did not exist."

Published ACCA decision

When it rains, it pours (literally if you're in the D.C. area). Here's a link to a published ACCA opinion that just showed up on the court's web site. United States v. Gunderman, __ M.J. ___, No. ARMY 20080239 (A. Ct. Crim. App. Apr. 30, 2009).

Gunderman is ostensibly a case about ineffective assistance of counsel, but seems to be more a case of ineffective assistance of client. Specialist Gunderman's appellate defense counsel raised an IAC issue, asserting that the trial defense counsel had failed to advise Gunderman that he could seek waiver and/or deferment of automatic forfeitures. The assignment of error was accompanied by an unexecuted affidavit from the appellant. Appellate defense counsel indicated that a signed and notarized version would be filed when received. But counsel never received a signed version, so ACCA understandably refused to consider the unexecuted affidavit. ACCA made clear that even when dealing with Grostefon issues, factual assertions must be appropriately documented.

Judge Conn wrote the opinion for a unanimous panel.

New published sentencing argument decision from CGCCA

The Coast Guard Court issued a published opinion today. United States v. McDonald, __ M.J. ___, No. 1294 (C.G. Ct. Crim. App. Apr. 24, 2009). The central issue in the case is whether the TC's sentencing argument included improper comments that rise to the level of plain error. No, ruled CGCCA.

The court held that it was improper for the TC to argue, "His drug use alone and the impact that it has on our service and the unit of CUTTER SHERMAN as a law enforcement cutter deserves a bad conduct discharge." Because the drug use didn't produce an adverse impact on the cutter's law enforcement mission, the TC's argument "improperly links Appellant’s status as a boarding team member to his marijuana offense." But while the argument was improper, it was only a small part of the TC's argument and didn't constitute plain error, especially in this judge alone case.

AFCCA holds an officer can be convicted for private, consensual sexual conduct even if it's protected by Lawrence and Marcum

AFCCA's Harvey decision is significant. It involves an Air Force chaplain in Turkey who had a consensual homosexual relationship with two Turkish men. He was found guilty of conduct unbecoming an officer and gentleman for engaging in sodomy with one of the two Turkish men.

AFCCA concluded that the private, consensual sexual relationship was protected under both Lawrence v. Texas, 539 U.S. 558 (2003), and United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004). But AFCCA nevertheless affirmed the conviction. Here's how the court framed the issue: "In a case of first impression, we must decide whether conduct that is permissible and survives scrutiny under Marcum can nonetheless be proscribed as conduct unbecoming an officer and a gentleman." Yes, held the court. "Private conduct may constitute an offense under Article 133, UCMJ, and there is no requirement that the conduct be otherwise criminal."

Turning to the facts of the case, the court reasoned:

[W]e conclude that the fact that conduct may fall within a recognized liberty interest under the Constitution does not mean that the conduct cannot be proscribed under Article 133, UCMJ. Such is true even if the infringement of the liberty interest would not pass constitutional scrutiny as a violation of another punitive article, e.g., Article 125, UCMJ. This is such a case. In the case sub judice, the appellant's act of performing fellatio on a Turkish national at a time when the appellant, an officer, was serving as a representative of the United States military abroad, and at a time when the appellant had been confronted about and knew rumors abounded on and off base about his alleged homosexual relationship with another Turkish national (Mr. MH), evinced, as the trier of fact found, a degree of indecorum that disgraced and dishonored the appellant and seriously compromised his standing as an officer. In the final analysis, Article 133, UCMJ, as applied to the appellant in this case, is constitutional.

Harvey, No. ACM 36641, slip op. at 6 (footnote omitted).

As if that weren't significant enough, AFCCA then proceeded to announce another major holding. AFCCA was confronted with the question of whether the Marcum factors are questions of law to be determined by the military judge or questions of fact to be determined by the members after being instructed about them. They are the former, held AFCCA. The Marcum factors are legal "matters upon which only the military judge could rule." Id., slip op. at 7.

My guess is that this significant case will be further reviewed by CAAF. Major kudos (or, actually, lieutenant general kudos) go to the Judge Advocate General of the Air Force for certifying this subjurisdictional case to AFCCA. When CAAF either denies a petition for review in this case--thus allowing AFCCA's opinion to remain binding precedent in the Air Force--or grants the petition and establishes law for the entire military justice system, the law will be clearer than it was before. And that seems like a sound basis for a Judge Advocate General to exercise the Article 69(d) authority to refer a subjurisdictional case to a Court of Criminal Appeals. In fact, the system would likely benefit if there were more such referrals or, better yet, an accused were given a right to appeal a subjurisdictional case to a Court of Criminal Appeals.

AFCCA issues published opinion in Harvey

Here's a link to AFCCA's published opinion in United States v. Harvey, __ M.J. ___, No. ACM 36641 (A.F. Ct. Crim. App. Apr. 9, 2009). We previously discussed the case here. I hope to post a synopsis of the opinion later this evening.

AFCCA issues published sentence disparity/sentence appropriateness opinion

AFCCA doesn't normally publish its sentence appropriateness opinions. But it did so today in United States v. Anderson, __ M.J. ___, No. ACM 37517 (A.F.Ct. Crim. App. Apr. 7, 2009) (per curiam). Presumably AFCCA published the opinion because it sides with an unpublished NMCCA decision to provide an answer to this question: "In assessing whether or not [court-martial sentences in two closely related cases] are highly disparate, . . . should [the CCA] compare the appellant's adjudged and approved sentence" with the closely related case's adjudged sentence or approved sentence? Id., slip op. at 4-5. Adjudged sentence, rules AFCCA, id., slip op. at 5, thus indicating that a CCA may ignore sentence disparity created by a convening authority's reduction of the closely related case's sentence.

[DISCLAIMER: I second-seated the oral argument for the defense.]

ACCA axes negligent possession of child pornography conviction

In addition to offenses arising from mishandling classified information, Major Amazaki pleaded guilty to and was convicted of a spec that alleged he violated Article 133 by "wrongfully and dishonorably possess[ing] a 100 ZIP Diskette, which contained 8 images of child pornography, . . . by possessing over 150 images of pornography by negligently failing to note that there was child pornography among such images, by negligently failing to eliminate said images of child pornography from the Diskette, and by negligently leaving said images of child pornography on the Diskette in his place of residence in such a manner that other persons could easily access said images of child pornography." In a published decision authored by Judge Ham, ACCA held yesterday that MAJ Amazaki didn't have fair notice that such negligent possession of child pornography was a crime. United States v. Amazaki, __ M.J. ___, No. ARMY 20070676 (A. Ct. Crim. App. March 31, 2009).

Judge Ham reasoned:

Appellant was not on notice that he was subject to criminal prosecution by failing to discover that, unbeknownst to him and without requesting, seeking, or searching for such images, a diskette a friend gave him contained illegal child pornography. Specifically, we hold appellant was not on notice the charged conduct . . . would subject him to criminal sanction under Article 133, UCMJ. Further, we disagree appellant was on notice he had any duty to use due care to review the diskette his friend provided to "make sure there was nothing illegal" on it. There is no custom, regulation, or otherwise to the contrary.

Id., slip op. at 10 (footnote omitted).

She concluded that "no reasonable officer would recognize that appellant’s unwitting conduct would bring dishonor or disrepute upon himself or his profession. To the contrary, any reasonable officer would doubt these acts constitute conduct unbecoming an officer." Id., slip op. at 11.

Amended Art. 120 Constitutional Says Unanimous, En Banc NMCCA

Here is a link to NMCCA's unanimous, en banc opinion in United States v. Neal, __ M.J. ___, No. NMCCA 200800746 (N-M. Ct. Crim. App. March 31, 2009) (en banc). Judge Eric Price, writing for a unanimous court, in BLUF format, tells us, "[W]e conclude that in this aggravated sexual contact prosecution, proof of the element of force does not require proof of 'lack of consent,' and that the affirmative defense of consent does not unconstitutionally shift the burden of proof to the defense. . . . Accordingly, we grant the Government’s interlocutory appeal."

Amazingly the opinion is only 13 pages long and the constitutional analysis doesn't start until page 9. In those 4 short pages, the Court, reversing my friend CDR DeOliveira, finds Art. 120 constitutional, holding that (1) because the "Government is not required to prove 'lack of consent' as an identified or implied element of aggravated sexual contact," there is no burden shifting violation of the Due Process Clause and (2) a saving construction of the statute is in order to avoid the constitutional question of excluding evidence to negate an element of the offense. To avoid the constitutional question raised by interpreting Art. 120 as excluding evidence of lack of consent to negate the element of force in Art. 120, Judge Price writes,

We interpret the words “consent [is] not an issue” as highlighting Congress’ removal of “lack of consent” as an element that must be proven by the Government. Art. 120(r), UCMJ. We also interpret the language “except [it is] an affirmative defense for the sexual conduct in issue in a prosecution under subsection [(e) aggravated sexual contact]” as reflecting establishment of the affirmative defense of consent to identified offenses including “aggravated sexual contact.” Art. 120(r), UCMJ. To be clear, this construction is necessary to ensure the accused due process of law, as the finder of fact must be free to consider relevant, admissible evidence, including evidence going to the affirmative defense of consent, in determining whether there is a reasonable doubt about the sufficiency of the Government’s proof as to the elements of the offense.

I will leave additional editorial and synopsis to CAAFlog tonight.

ACCA sets aside rape conviction due to factual insufficiency

Here's something one doesn't often see -- yesterday, in an unpublished opinion, ACCA set aside a rape conviction due the evidence's factual insufficiency. United States v. House, No. ARMY 20061064 (A. Ct. Crim. App. March 30, 2009). ACCA affirmed an adultery conviction arising from the same incident and authorized a rehearing on the sentence.