Saturday, March 31, 2007

Moreno's New Formula: Post Trial Delay = A Little Payola

In the Army Court of Criminal Appeals latest post-trial delay decision, Etibek (memorandum opinion), ACCA gives back 1 month of confinement already served (and the appellant's automatic forfeitures for that period). ACCA deemed the appellant's claims worthy as a result of a 224-day delay in processing between authentication and the SJA's completion of the SJAR. In this guilty plea, desertion case (you don't see those too often), the SJA (who is named in the opinion) offered a series of reasons why it took her 224 days to write a two-page SJAR. ACCA didn't find any of them "compelling to explain why it took the SJA two hundred twenty-four days, on a fifty-seven-page record of trial, to create a two-page SJAR." ACCA also found prejudice to the appellant's chances for clemency and parole where there was no action on his case, which resulted in 13 months confinement, for 291 days.

This latter finding, about prejudice to clemency and parole, is something that can probably be said for any appellant with a non-life/long term of years sentence. I wonder if appellant's will seize on this and run for the payola? More importantly for the system, I wonder if this is the best trend in remedying post-trial delay--awarding post-confinement payola for post-trial delay. AFCCA used the same formula in Miller and CAAFlog has documented countless similar decisions, much to the displeasure of at least one of our readers. If the point of post-trial delay is to punish the government for denial of due process, the pain should be inflicted on the convening authority. Do CA's really lose any money when CCA orders come down, or is big Navy/Air Force/Army paying? I am guessing the $ flows from the "Lost Battalions" of each service (for those that have not read the Marine Corps Gazette article on the "Lost Battalion," I commend you to it and one of our reader's commentary on it here). Any other suggestions to make convening authorities feel the pain? Other than reassigning the offending servicemembers to the command, I can't think of much that would do the trick if the point hasn't been made yet.

Friday, March 30, 2007

Diaz set for conference

The Supreme Court set Diaz for Conference on 13 April 2007 here.

And a new CGCCA case

Here is the link to another new CCA case, this time from the Coast Guard:

Monday, March 26, 2007

C.A.A.F. decides United States v. Phillips

The Court decided United States v. Phillips today. For those who have been waiting fifty-six years for the C.A.A.F. to answer those burning questions about whether and when a substitute convening authority may execute a contingent fine, this case will make you wonder why you did not watch the moon landings instead.

Major Phillips, who was setting up shell companies and then paying "bills" with government credit cards to the tune of $400,000 USD, was sentenced to five years confinement, dismissal, a reprimand, and a $400,000 fine. The court-martial imposed an additional five years of confinement if Major Phillips failed to pay the fine. Days before he was to be released from confinement, a substitute convening authority with no previous connection to the case held a fine enforcement hearing. The hearing officer rejected Major Phillips's claim of indigence and the convening authority executed the additional confinement. The C.A.A.F. assures us that the convening authority was not a "substitute convening authority", but rather the "authority considering imposition of confinement" under R.C.M. 1113(d)(3). Problem solved. For the four or five convicted and confined servicemembers who have not paid contingent fines, who have internet access, who are not concerned with ex-parte communications with convicted servicemembers, and are reading this blog, there may be a convening authority somewhere that is watching. The mission to Mars is only a few years off.

Law & Order: Dearing Part 63

In the ever continuing saga, today's Daily Journal (well technically Thursday's, but it was posted today) lists yet another U.S. v. Dearing extraordinary writ. Someone please tell me the guy isn't still sitting in post-trial confinement while great criminal (law) minds run around trying to figure out what to do with the case? Here is the post from the Daily Journal:

Misc. No. 07-8011/NA. Brian DEARING, Petitioner, v. United States, Respondent. CCA 200100291. Notice is hereby given that a petition for extraordinary relief in the nature of a writ of habeas corpus and writ of mandamus was filed under Rule 27(a) on March 19, 2007, and placed on the docket this date. On consideration thereof, it is ordered that the Judge Advocate General of the Navy appoint counsel to represent Petitioner and Respondent herein, and that Respondent show cause by March 27, 2007, why the requested relief should not be granted.

I think at least one judge, though maybe all five, may be a little annoyed if this is the same issue CAAFlog discussed over the last four months, including here, here, and here. Someone in the know, please let us know.

Friday, March 23, 2007

Sore loser's club

One CAAFlog commentator has remarked on the various appellate government divisions' fondness for petitions for reconsideration this term. CAAF just denied another one. New to the Daily Journal:

No. 07-113
Wednesday, March 21, 2007

. . . .

No. 06-0060/AF U.S. v. Stacey S. BROOKS. CCA 35420. On consideration of Appellee’s petition for reconsideration of this Court’s decision, 64 M.J. 325 (C.A.A.F. 2007), it is ordered that said petition for reconsideration be, and the same is, hereby denied.*

* Judge Stucky and Judge Ryan did not participate.

New New news

The SG's opposition in New is now up on the SG's web site. Here's a link.

The opposition's discussion of collateral review of court-martial convictions is both fascinating and significant. I have spent much of my legal career focused on the military death penalty, (In the Isaiah Berlin fox/hedgehog dichotomy, I am a hedgehog.) Because military death row is in Kansas, I have had a longstanding interest in the 10th Circuit's case law on the scope of review for habeas challenges to court-martial cases. And it is, in a word, awful. Here's the current 10th Circuit standard:
If the grounds for relief that Petitioner raised in the district court were fully and fairly reviewed in the military courts, then the district court was proper in not considering those issues. Likewise, if a ground for relief was not raised in the military courts, then the district court must deem that ground waived. The only exception to the waiver rule is that a petitioner may obtain relief by showing cause and actual prejudice.

Roberts v. Callahan, 321 F.3d 994, 997 (10th Cir.) (internal citations omitted), cert. denied, 540 U.S. 973 (2003).

It would be easier for a camel to go through the eye of a needle than for a military habeas case to slip into that gap between complete deference and waiver.

So it was heartening to read the Solicitor General's take on the collateral review issue. First, the SG quotes then-Judge Alito to establish that there IS a circuit split:
As one court of appeals recently noted, since this Court's decision in [Burns v. Wilson, 346 U.S. 137 (1953),] "[t]he degree to which a federal habeas court may consider claims of errors committed in a military trial has * * * been the subject of controversy and remains unclear." Brosius v. Warden, U.S. Penitentiary, 278 F.3d 239, 242 (3d Cir.) (Alito, J.), cert. denied, 537 U.S. 947 (2002).

SG's Brief in Opp at 11.

The SG then assures us that despite that circuit split,
courts of appeals have . . . been in broad agreement on two principles. First, the courts of appeals have generally held that, where the claims at issue have already been considered by the military courts, only claims involving fundamental or substantial constitutional errors are cognizable on collateral review. See, e.g., Bowling v. United States, 713 F.2d 1558, 1561 (Fed. Cir. 1983) (explaining that "the constitutional claims made must be serious ones"a nd "demonstrate convincingly that in the court-martial proceedings there has been such a deprivation of fundamental fairness as to impair due process"); Calley v. Callaway, 519 F.2d 184, 199 (5th Cir. 1975) (stating that "[t]he asserted error must be of substantial constitutional dimension"). Second, the courts of appeals have generally held that, even with regard to such constitutional claims, the decisions of the military courts are entitled to at least some degree of deference. See, e.g., Brosius, 278 F.3d at 245 (stating that "our inquiry in a military habeas case may not go further than our inquiry in a state habeas case" and assuming, for the sake of argument, that the deferential standard of 28 U.S.C. 2254(d) was applicable to the substantive determinations of military courts); Kauffman v. Secretary of the Air Force, 415 F.2d 991, 997 (D.C. Cir. 1969) (explaining that "the test of fairness requires that military rulings on constitutional issues conform to Supreme Court standards, unless it is shown that conditions peculiar to military life require a different rule").

Note two important things. First, applying those two principles would result in a much more searching scope of review than the 10th Circuit applies. As the 10th Circuit noted in one of its leading cases governing habeas review of court-martial cases, if an issue was "given full and fair consideration by the military courts," the the district court "should . . . den[y] the [habeas] petition." Lips v. Commandant, United States Disciplinary Barracks, 997 F.2d 808, 810 (10th Cir. 1993). Worse still, under 10th Circuit case law, "[W]hen an issue is briefed and argued before a military board of review, we have held that the military tribunal has given the claim fair consideration, even though its opinion summarily disposed of the issue with the mere statement that it did not find the issue meritorious or requiring discussion." Watson v. McCotter, 782 F.2d 143, 145 (10th Cir.), cert. denied, 476 U.S. 1184 (1986). So in the 10th Circuit, the barest of CCA brushoffs {e.g., "We find appellant's remaining 10 assignments of error to be without merit") is sufficient to preclude habeas reivew of even the weightiest constitutional issue.

Second, the SG didn't cite ANY 10th Circuit case law. Look at the opposition -- it cites cases from four courts: the 3d, 5th, D.C., and Federal Circuits. Discussing collateral review of court-martial convictions without mentioning the 10th Circuit is a little like discussing contemporary home-run hitters without mentioning Barry Bonds. And the reason is probably the same in both instances: it would be a little bit embarrassing to talk about.

So those of you who represent servicemembers who may ultimately have a habeas case in the 10th Circuit -- and particularly those of you who represent servicemembers in military death penalty cases -- squirrel away this SG opposition; it may prove quite useful if you ever seek cert asking the Supreme Court to review the 10th Circuit's scope of review in military habeas cases.

Thursday, March 22, 2007

New news

The Supreme Court's on-line docket indicates that on 20 March the SG filed his opposition to the New v. Gates cert petition, No. 06-691 -- which includes an issue asking the Supremes to resolve the correct scope of review for Article III courts' collateral review of court-martial convictions. We previously discussed that cert petition here, among other places.

Unfortunately the opp doesn't yet appear to be posted on the SG's web site. If it goes up tomorrow, I'll post a link. But after that I'll be off-line until Wednesday night. If it's not up tomorrow, perhaps one of the other contriubtors can check on Monday and Tuesday.

Wednesday, March 21, 2007

If Leonard is the most important CAAF case of the century, is Young the least important?

CAAF's docket has been extremely light this term. According to the CAAF web site's scheduled hearings page, CAAF has heard 46 oral arguments so far this term. Another 10 are scheduled in April and May. So it looks like the total case output for the term will be 57 -- the 56 orally argued cases plus United States v. Canchola, 64 M.J. 245 (C.A.A.F. 2007) (per curiam).

How did United States v. Young, __ M.J. ___, No. 06-0505/AR (C.A.A.F. March 21, 2007), make the list of the 57 most important military justice cases of the year?

The principal issue in Young appears to be whether the evidence is legally sufficient where massive amounts of circumstantial evidence demonstrates the accused's guilt. Uhm, yeah. There is also an issue about whether the government presented sufficient evidence that Young possessed some amount of marijuana he didn't also distribute, thus supporting findings of guilty to both a distribution spec and a possession with intent to distribute spec. Again, in an analysis applying the facts to settled law, CAAF says the government presented adequate evidence to support both specs. Finally, CAAF denies relief for post-trial delay of 1,637 days (four years, five months, and twenty-five days) between trial and the CCA's ruling. (Suppressed yawn.)

If CAAF granted review in Young, what must the issues look like in the petitions it denies?

Another new CAAF opinion

United States v. Young, __ M.J. ___, No. 06-0505/AR (C.A.A.F. March 21, 2007).

Judge Erdmann for a unanimous court.

Guert, wanna race?

C.A.A.F. unanimous in United States v. Young.

Today, the Court decided its second decision in as many days. Perhaps my perception is skewed by the Court's decision yesterday in Leonard, but this case presents little worthy of comment. The Court devotes two thirds of its opinion to addressing Young's legal insufficiency claim, and to revisiting the Court's decision in United States v. Savage, 50 M.J. 244 (C.A.A.F. 1999), which involved charges of distributing marijuana and possessing marijuana with the intent to distribute on the same day. The C.A.A.F. found the combination of large sums of cash and empty plastic bags containing marijuana residue to be legally sufficient to prove that Young had distributed some amount of marijuana. The Court further held that the eighteen pounds of marijuana found near Young in the home of Young's cousin satisfied the possession with intent to distribute offense, and that Young had not been twice punished for the same act as had happened in Savage.

Now for the part that is worthy of comment. The Court was unanimous, for the first time since C.A.A.F. announced Diaz v. J.A.G. of the Navy in 2004, in affirming the due-process right of servicemembers to timely appellate review. Judge Crawford may have actually written over 100 separate dissenting opinions on this very issue. By the way, how are those speedy trial motions faring at the commissions? You will recall that both new judges listed post-trial delay cases on their list of three important cases in documents submitted to the SASC. We now know that they have signed on to the fundamental framework set forth in Moreno and Toohey II, which were decided last term. It would appear that C.A.A.F. will remain in the group of Federal Courts of Appeals acknowledging a due-process right to timely appellate review for some time.

Tuesday, March 20, 2007

Interesting ACCA opinon

ACCA released on interesting little opinion today. In United States v. Bonner, __ M.J. ___, No. ARMY 20040196 (A. Ct. Crim. App. 20 March 2007), the court held that where a convening authority sets aside a finding as a matter of clemency, he is under no obligation to provide any accompanying sentence relief and a staff judge advocate need not advise the CA to perform a Sales-type sentence reassessment. Rather, all that is necessary is that the CA must "determine the sentence remains appropriate in light of the disapproved findings." Id., slip op. at 5.

ACCA slips in a service split in a footnote, id., slip op. at 3-4 n.2, but the disagreement is pure dicta. ACCA rejects the Coast Guard Court's conclusion that an SJA must advise the CA about the standard for sentence reassessment in cases of possible legal error. Id. (citing United States v. Meek, 58 M.J. 579 (C.G. Ct. Crim. App. 2003)). But ACCA had already noted that it found "no evidence of a determination of possible legal error by the SJA in this case, nor do we see any basis that would support such a determination." Bonner, slip op. at 3 n.1. So ACCA's gratuitous shot at Meek, right or wrong, shouldn't become the basis for a CAAF grant to resolve the service split, since any resolution of that point would be purely advisory (as was ACCA's resolution of that point in Bonner).

A case that will tax John O'Connor's patience?

United States v. Leonard is the type of case that will drive John O'Connor crazy. Airman First Class Leonard pled guilty to knowingly receiving visual depictions of a minor engaging in sexually explicit conduct, in violation of clause (1) or (2) of Article 134. "Prior to sentencing, the military judge, trial counsel, and defense counsel agreed that the maximum term of imprisonment for Appellant's offense was fifteen years." Leonard, slip op. at 2-3. The military judge imposed a sentence that included confinement for 45 months. CAAF specified two issues concerning whether all of the trial participants were mistaken about the maximum confinement. Today, more than three-and-a-half years after Leonard was sentenced on 30 July 2003, CAAF upheld the sentence. John -- are you screaming yet? Just another 25 days until 15 April.

So my first reaction to Leonard is that it seems an odd case for CAAF to have exercised its discretionary jurisdiction. Leonard seems unnecessary, but it may also be important -- and troubling.

The key issue in Leonard is whether the trial participants were correct to look to a federal child pornography statute for the maximum sentence where the Article 134 specification omitted the jurisdictional element of the federal offense: that the child pornography was received through a medium of interstate or foreign commerce. The majority indicates that it is sufficient to look to a federal statute for a novel 134 offense's maximum punishment if "the offense as charged is 'essentially the same,' as that proscribed by the federal statute." Leonard, slip op. at 8 (quoting United States v. Jackson, 17 C.M.A. 580, 583, 38 C.M.R. 378, 381 (1968)). The majority concludes, "The military judge did not err by referencing a directly analogous federal statute to identify the maximum punishment in this case, where every element of the federal crime, except the jurisdictional element, was included in the specification." Leonard, slip op. at 8.

Judge Baker agrees that "it was appropriate for the military judge to look to 18 U.S.C. [section] 2522(a)(2) to determine the maximum penalty." Leonard, slip op. at 3 (Baker, J., concurring). But in his insightful concurrence, Judge Baker highlights what appears to be an important distinction between his approach and the majority's. The majority indicates that it need not decide where this case fits within Rule for Courts-Martial 1003(c)'s taxonomy for determining the maximum punishment for an Article 134 offense. The majority indicates that Article 134 itself answers this question: "Article 134, UCMJ, which applies only to conduct 'not specifically mentioned' under the UCMJ, specifically provides that an accused 'shall be punished at the discretion of [the] court.'" Leonard, slip op. at 7. The majority continues, "While a court's discretion is bounded both where specific direction is given under R.C.M. 1003(c) and the limitations established by the President pursuant to Article 56, UCMJ, R.C.M. 1003(c) does not give specific direction here, and no maximum punishment has been set by the President for the offense set forth in the specification." Id. at 7-8. This language suggests to me that the majority views this child pornography offense as having NO maximum punishment. The military judge could have, had he wished, sentenced Leonard to confinement for life without parole. By limiting the maximum confinement to a mere 15 years, the military judge was doing Leonard a favor.

Someone please convince me I am misreading the opinion, but that is what it suggests to me. It also suggests, therefore, that any time a court-martial finds a servicemember guilty of an offense not listed in Part IV or closely related to a specified offense that doesn't perfectly match an 18 U.S.C. offense or fall within a custom of the service, the servicemember may be sentenced to anything up to LWOP, since the majority's opinion suggests that the accused "shall be punished at the discretion of [the] court." Leonard, slip op. at 7. I read R.C.M. 1003(c)(1) differently -- it looks to me like the President was attempting to cover the field and leave no offense unlimited. Indeed, the first sentence of R.C.M. 1003(c)(1)(B)(ii) appears to support just that conclusion. Let's examine that language closely: "An offense not listed in Part IV and not included in or closely related to any offense listed therein is punishable as authorized by the United States Code, or as authorized by the custom of the service." Note that the reference to offenses seems to cover EVERY offense that doesn't fall within R.C.M. 1003(A) or (B)(1). And such an offense "is punishable" in only one of two ways: (1) by reference to 18 U.S.C. or (2) by reference to custom of the service. The plain language of this rule indicates that if an offense is NOT punishable in one of those two ways, it is NOT punishable. Under that R.C.M., a gap in the coverage results not in a maximum of LWOP, but a maximum of no punishment. As the majority itself points out, Article 56 allows the President to set caps for the punishment that a court-martial may prescribe for a particular offense. Through R.C.M. 1003(c)(1)(B)(ii), the President did that for a class of Article 134 offenses. And he was free to set no punishment as the max. We need not be too frightened by setting the default position at 0 rather than LWOP. The government controls the charging process and the government can plead a novel 134 offense so that it either lines up with an 18 U.S.C. offense or so that it is closely related to a listed offense. In the alternative, perhaps the misconduct can be charged as a simple disorder. If it is none of those things, perhaps the conduct isn't properly characterized as criminal.

So I agree with Judge Baker that Article 134's provision that a violation "shall be punished at the discretion of [the] court" "must be read in light of the President's adoption of R.C.M. 1003(c)(1)(B)." Leonard, slip op. at 1 (Baker, J., concurring). As Judge Baker observes, this "rule is intended to delimit the exercise of discretion by courts-martial in adjudicating punishment for offenses 'not listed in Part Iv' of the Manual for Courts-Martial, United States (MCM) 'and not included in or closely related to any offense listed therein.'" Id. at 1-2 (quoting R.C.M. 1003(c)(1)(B)(ii)).

Judge Baker comments in a footnote, "The majority relies alone on the 'discretion of [the] court' language of Article 134, UCMJ, in holding that the military judge did not abuse his discretion in applying an analogous federal statute. But it is not clear where this discretion ultimately ends." Id. at 2 n.1. As I indicated above, it would seem to end at LWOP. And that's a pretty scary terminal point.

What are the odds that the Joint Service Committee will step in and plug the hole recognized (or created) by the Leonard case? I'd be willing to bet John O'Connor's income tax refund against it. Come on, John, sing it with me:

Well I'm the Tax Man
Yea I'm the Tax Man . . . .

Leonard perhaps most important decision out of the C.A.A.F. this century.

While I am prone to overstatements, see e.g. engine of military justice theory, I don't think the caption of this post is an overstatement. I must begin my referencing remarks made by Mr. Fidell at NIMJ's conference last November, where he noted that sex offenses, and particularly child pornography related offenses, account for nearly thirty percent of the cases coming before the C.A.A.F. If I have not accurately reflected your comments Mr. Fidell, I apologize. Even if not attributable to Mr. Fidell, I think the numbers accurately support the proposition that such offenses account for a third of all courts martial in the military. Therefore, a case dealing with a third of the military docket, and potentially many more areas of the law, is very important.

Airman First Class Leonard downloaded pornography onto his home computer in South Dakota. In United States v. Mason, 64 M.J. 246 (C.A.A.F. 2004), and its progeny, the C.A.A.F. held that the government could permissibly charge child pornography offenses under Clauses 1 and 2 of Article 134, instead of incorporating the Child Pornography Prevention Act (CPPA) under Clause 3. In fact, in Mason, the Court found disorders charged under Clauses 1 and 2 to be "lesser included offenses" of offenses charged under Clause 3. By charging child pornography offenses under Clauses 1 and 2, the government can sidestep that pesky First Amendment requirement that the Supreme Court imposed upon the C.A.A.F. in United States v. O'Connor, 58 M.J. 450 (C.A.A.F. 2003), which required images to be of actual children.

But wait, it gets better. In United States v. Martinelli, 62 M.J. 52 (C.A.A.F. 2005), the C.A.A.F. held that CPPA offenses charged under Clause 3 could not be applied extraterritorially. For you government hacks that have been in a cave since 2005, don't worry. The C.A.A.F. again suggested that the way around its decision was simply to charge the child pornography offenses under Clauses 1 and 2 of Article 134. In light of Mason and Martinelli, a Marine in a cave in Afghanistan looking at locally created Afghani virtual child pornography on his computer could still be prosecuted under Clauses 1 and 2 of Article 134. Through the power of Clauses 1 and 2, the government can avoid both the First Amendment and the presumption against the extraterritorial application of statutes. BUT WAIT THERE IS MORE!

In the wake of Mason and Martinelli, the question remained as to what the appropriate maximum sentence was under Article 134. One would assume that the sentence for the lesser-included offense charged under Clauses 1 and 2 would be "less" than the sentence imposed for a violation of the CPPA charged under Clause 3. R.C.M. 1003(c)(1)(B) provides that, if a maximum sentence is not listed in the Manual, and the offense is not closely related to any other offense, then, and only then, may the court-martial impose punishment "as authorized by the U.S. Code."

In United States v. Hays, 62 M.J. 158 (C.A.A.F. 2005), the Court dropped an interesting appellate teaser. Specialist Hays, unable to find anything else to do in Germany, and not afforded Airman Leonard's duress defense that he had been stationed in South Dakota, downloaded pornography. The Court breathed life into the Martinelli decision, and set aside his conviction of violating the CPPA under Clause 3. But, just as it appeared that Hays would win, Clauses 1 and 2 came to the government's rescue . The Court affirmed Specialist Hays's conviction for the lesser-included offense of receiving child pornography under Clause 2. Now for the teaser. "Our approval of these [clause 2 offenses] does not alter the essential nature of these offenses. As a result, there was no prejudice as to his sentence, so a sentence rehearing is unwarranted." Id. at 168. Was C.A.A.F. engaging in unauthorized Sales analysis in Hays, or was C.A.A.F. suggesting that the maximum punishment for the lesser-included offense of receiving child pornography under Clause 2 was exactly the same of the greater offense charged under Clause 3? Until this evening, I had assumed the former.

In Leonard, the C.A.A.F. holds that it is appropriate to look to the CPPA for guidance as to the maximum punishment for child pornography offenses charged under Clauses 1 and 2. Thus, the maximum punishment for the "lesser included offenses" of receiving and possessing child pornography under Clauses 1 and 2 is exactly the same as the greater offense. And, the government does not have to prove all of the elements of the CPPA if the offense is charged under Clauses 1 and 2. In Leonard, the government did not prove the jurisdictional element that the pictures had traveled in interstate commerce. So not only does the government avoid the First Amendment protections set forth in O'Connor, the extraterritorial limitations imposed by Martinelli, and the protections of the Commerce Clause set forth in Lopez, but it gets the EXACT SAME maximum punishment as if it had complied with the CPPA! To the engine of military justice, if you EVER again charge an offense under Clause 3 incorporating 18 U.S.C. 2252(a), you should be immediately appointed to the probate bench in Florida.

While some may consider the evolution of the Court's case law between Sapp and Leonard to be judicial realism run amok, but realism targeted only at a very nasty offense and a few nasty offenders, consider that, after Mason, a violation of Clauses 1 and 2 is a lesser included offense of EVERY crime under the UCMJ. The smart prosecutor, or the nervous trial judge faced with a weak government case, will ask the required questions to sustain an offense under Clauses 1 and 2 for every offense. Consider that the right to engage in private consensual sodomy, as it exists in the military after Marcum, 60 M.J. 198 (C.A.A.F. 2004), may be entirely illusory. Would an Army, or even Coast Guard, members panel fail to convict Seaman Timmy of the lesser included offense of service discrediting conduct, if the incorporated Kansas statute ran afoul of the 14th Amendment, but after Timmy's neighbor called the military police to falsely report a burglary in the hopes that Seaman Timmy's longtime consensual homosexual relationship would be revealed?

New CAAF decision

CAAF released its first opinion by its new five-judge bench today. Judge Ryan wrote for the majority. Judge Baker concurred in part and in the result. United States v. Leonard, __ M.J. ___, No. 35740 (C.A.A.F. March 20, 2007).

I'll post some thoughts about the case later tonight unless another CAAFlog contributor beats me to it.

Monday, March 19, 2007

Resource alert

I stumbled across a couple of military justice articles in recent civilian law reviews. In Strengthening Article 32 to Prevent Politically Motivated Prosecution: Moving Military Justice Back to the Cutting Edge, 19 Regent U.L. Rev. 173 (2006/2007), Brian C. Hayes argues that Article 32 does not protect servicemembers from being tried absent probable cause to believe they committed an offense. He offers examples of what he views as politically motivated courts-martial absent probable cause from Tailhook, Aberdeen, West Point, and the Air Force Academy. He proposes this addition to Article 32:
(b) . . . For each charge and specification, a military judge must determine whether there is probable cause to believe that the offense has been committed and that the subject of the investigation has committed the offense.

If probable cause exists as to any specification, the military judge must inform the convening authority and the accused. The military judge must also make a recommendation to the convening authority as to how to dispose of the case.

The military judge must dismiss any charge or specification that is not supported by probable cause.

Following a dismissal of a charge or specification under this Article, the convening authority may again refer the charge if there is reason to believe that there is additional evidence to justify doing so. The convening authority must then order a new investigation under this Article.

Hayes concludes:
While the military justice system is likely no worse than its civilian counterparts at protecting the accused from unwarranted prosecution, "no worse" is not good enough. By amending Article 32, Congress can grant unsurpassed pretrial protection to the military defendant, and allow the military justice system to once again set the standard for justice and fairness. Such an improvement to the system will inspire the respect and confidence of those in and out of uniform. Americans -- civilian and military -- deserve no less.

In the February 2007 issue of the Minnesota Law Review, Professor D. H. Kaye -- one of the great experts on use of science in the law -- has an exceedingly brief but interesting essay about the abuse of probability theory in the famous French court-martial of Captain Alfred Dreyfus. Revisiting Dreyfus: A More Complete Account of a Trial by Mathematics, 91 Minn. L. Rev. 825 (2007). Those interested in the history of the military justice system, the writings of Emile Zola, or the development of handwriting analysis (which collectively surely describes the entire CAAFlog readership) will enjoy the article.

Sunday, March 18, 2007

CAAF administrative officer selected?

I notice that on CAAF's web site, the banner advertising the court administrative officer position has come down. Does anyone know whether CAAF has selected an administrative officer and, if so, who it is?

Friday, March 16, 2007

Dearing update

All quite on the Dearing front. No new Supreme Court electronic docket entry; no Dearing cert petition on the SG's web site.

New (and odd) AFCCA published opinion

The Air Force Court's web site posted an odd little published opinion today. United States v. McAfee, __ M.J. ___, No. ACM 36340 (A.F. Ct. Crim. App. 15 March 2007).

According to the providence inquiry, Airman First Class McAfee was sitting in his room in a highly inebriated state when his friend A1C P (why the Air Force Court feels a need to protect McAfee's druggie friend's identity I know not) came by and asked McAfee to drive him downtown. McAfee, who as events would demonstrate had more compunctions about DUI than about riding with cocaine, declined on the grounds of intoxication. P offered to drive and McAfee consented, conditioned on going along for the ride. Only after the two had driven off base did McAfee inquire as to the purpose of the journey. P told McAfee that he was going to buy cocaine -- an idea that McAfee apparently endorsed.

The McAfee decision tells us that "appellant argues that the alleged overt act consisted of his allowing A1C P to use the appellant's car. Since it was only after the appellant had consented to the use of his car and he and A1C P were on their way downtown that the appellant learned the purpose of the trip was to purchase cocaine, the appellant espouses an ex post facto theory to defeat the conspiracy finding." McAfee, slip op. at 2. Somewhat more helpfully, the opinion earlier explained that "appellant asserts that his plea of guilty to the conspiracy charge was improvident in that the overt act in furtherance of the alleged conspiracy occurred before the formation of any agreement that had a criminal purpose." Id. Unfortunately, the opinion never sets out the specification to allow the reader to assess whether the providence inquiry indicated that the charged overt act occurred before the formation of the conspiracy. If it did, as Judge Sullivan noted in his concurring opinion in United States v. Moreno, there would have been a potential legal defense to the charge. United States v. Moreno, 46 M.J. 216, 219 (C.A.A.F. 1997) (Sullivan, J., concurring) (citing, inter alia, Dahly v. United States, 50 F.2d 37, 42 (8th Cir. 1931) ("it must be established that the conspiracy . . . was existing at the time of the commission of the overt act or acts")).

If I am right that the issue in this case was whether the overt act preexisted the formation of the conspiracy, then the Air Force Court's opinion simply doesn't resolve the issue, rejecting instead what appears to be a quite different issue about the formation of the conspiracy:

[H]ad the appellant known the purpose of the trip ab initio, the conspiracy would have been well-formed. Since the appellant is thus deemed to have controlled the nature and purpose of the vehicle's use at the launching of the escapade, we are at a loss to understand how he managed to lose his controlling interest in mid-course upon learning that A1C P's intended purpose for the trip was to purchase cocaine. In the absence of protest, we must conclude that the appellant consented to the use of the vehicle for that purpose at that time, and that it was from that time onwards that the conspiracy existed. The formation of a conspiracy "need not take any 'particular form or be manifested in any formal words'" . . . the agreement can be "silent, . . . 'tacit[,] or [only a] mutual understanding between the parties'", and it "is usually manifested by the conduct of the parties themselves." United States v. Whitten, 56 M.J. 234, 236 (C.A.A.F. 2002) (quoting United States v. Barnes, 38 M.J. 72, 75 (C.M.A. 1993) (internal citations omitted)). Accordingly, we find the appellant's argument to be without merit.

Gosh that looks like a swing and a miss.

If I am right about AFCCA missing the issue, it might still have reached the correct result, but only through application of the Felty doctrine to affirm a finding of guilty where the providence inquiry admits to a criminal offense different than but related to the offense to which the accused pled guilty. See United States v. Felty, 12 M.J. 438 (C.M.A. 1982). [Note that Garner would recommend use of "pleaded" in the previous sentence. This is one of the few instances where I disagree with the guru.] Now I have a new appreciation for why my junior high school math teacher would grade me down for reaching the right answer the wrong way.

The Air Force Court then launches off on a frolic of its own, considering whether a providence inquiry in which the accused admits that "the agreement was that [A1C P] was going to purchase Cocaine and use it," McAfee, slip op. at 4, supports a finding of guilty to conspiracy to use cocaine. The rather unsurprising answer to that question is, Yes. See id. at 7.

In the midst of this strange discussion, the Air Force Court interjects, appropos of nothing: "In resolving legal sufficiency questions, the appellate court is bound to draw every reasonable inference from the evidence of record in favor of the prosecution. United States v. Rogers, 54 M.J. 244, 246 (C.A.A.F. 2000)." Both Rogers and United States v. Blocker, 32 M.J. 281, 284 (C.M.A. 1991)--the case Rogers quoted for the proposition that "in resolving legal-sufficiency questions, . . . [we are] bound to draw every reasonable inference from the evidence of record in favor of the prosecution," Rogers, 54 M.J. at 246--were contested cases. The legal sufficiency standard that CAAF was discussing has nothing to do with assessing the providence of a guilty plea. Rather, CAAF was discussing how an appellate court is to decide a Jackson v. Virginia, 443 U.S. 307 (1979), issue.

Having read McAfee twice, I am left with two questions: (1) am I right in supposing that the Air Force Court misconstrued the issue in this case; and (2) why is this a published opinion? I would welcome any enlightenment on either of those questions.

Thursday, March 15, 2007

Should Dearing beware the ides of March?

Today marks the extended deadline for the Solicitor General to file a cert petition in Dearing, No. 06A754, as previously noted here. See United States v. Dearing, 63 M.J. 478 (C.A.A.F. 2006). But we have no official news at this point. The Supreme Court's online docket seems to always run a day behind real time, so we'll check again tomorrow. (Actually we check it every day, but we'll note any Dearing developments tomorrow.) The S.G.'s web site doesn't include a cert petition in Dearing.

But the Supremes' online docket often doesn't post an application for an extension of the cert deadline for days, weeks, or even a month. So it is possible that the S.G. has already sought another extension in Dearing -- heck, it's possible that Chief Justice Roberts has already granted another extension in Dearing -- but we just don't know about it yet.

Wednesday, March 14, 2007

Diaz files second cert petition

This showed up on the Supreme Court's docket today:

No. 06-9977
Title: Salvador Diaz, Petitioner
United States

Docketed: March 13, 2007
Lower Ct: United States Court of Appeals for the Armed Forces
Case Nos.: (05-0500/NA)
Decision Date: September 11, 2006
Rehearing Denied: October 11, 2006

~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Dec 22 2006 Application (06A795) to extend the time to file a petition for a writ of certiorari from January 9, 2007 to March 10, 2007, submitted to The Chief Justice.
Feb 15 2007 Application (06A795) granted by The Chief Justice extending the time to file until March 10, 2007.
Mar 5 2007 Petition for a writ of certiorari and motion for leave to proceed in forma pauperis filed. (Response due April 12, 2007)

As previously noted, a cert petition had already been filed on Diaz's behalf and the Supreme Court has already denied that cert petition. See Craig v. United States, 127 S. Ct. 1141 (2007) (order denying certiorari).

Tuesday, March 13, 2007

Huzzah for 15 minutes of fame

In pondering all these comments about oral argument, I feel compelled to confess that I have long wondered, over my Madeira and weevelly biscuit, why CCA's don't embrace more openly CAAF's practice of restricting some oral arguments to 15 minutes per side in cases involving an issue that would lend itself neatly to compact argument. At least two of the CCA's have rules stating that oral arguments will normally be 30 minutes per side, but frankly, some issues just don't warrant "the full monty" (and you, sir, just leave that visual right there - that phrase was around long before the movie made it to America) of an hour's time. Nothing requires either side to use their full 30, but knowing as soon as the oral argument is ordered that it's a 15-minute-per-side hearing would help all concerned to tighten their focus (something The Eye always strives for). The CCA, just like CAAF, can always extend that time through questions should it wish to do so. One commonwealth reportedly expedites its appellate docket by giving attorneys head of the line privileges before lunch in exchange for a 5-minute argument cap. I'd say 5 is too little but, sometimes, 30-per-side may be too much. Let the CCA judges set the clock (not literally, of course; we wouldn't want to take that away from the commissioners). A collateral benefit might be more motions/grants for oral argument. And if the CCA's are already doing this, my apologies - I'm a bit behind the times.

Monday, March 12, 2007


Perhaps there isn't an old adage admonishing against getting in the middle of an argument between a judge and a dead guy. If not, I'm about to explore whether there should be.

Anyone who doesn't know what I'm talking about should look at the comments to Nelson's Right Eye's post about CAAF's Fiscal Year 2006 report. NRE observed (with one eye, no less) that NMCCA held 10 oral arguments in FY06 and averaged 9.6 arguments per year over the past five fiscal years. The Air Force Court reported 13 oral arguments last fiscal year. This led NRE to ask: "are the numbers low simply because counsel don't request oral argument (either for tactical reasons or in an effort to avoid futile hours of preparation for a quixotic exercise)? Or are the courts denying motions for oral arguments?"

The No Man observed that in his recollection, NMCCA "denied oral argument routinely."

As part of a much longer comment addressing several aspects of practice before NMCCA, Guert reported that "attorneys of the Navy-Marine Corps Appellate Defense Division request oral argument frequently, and these requests are almost always denied."

Guert's post drew a reply from CJW -- one of our newest, one of our most welcome, and certainly our most surprising contributor. CJW noted his scepticism about unsupported broad assertions. He noted that counsel have requested oral argument in very few of the cases that have come before him and observed that his panel routinely grants requests for oral argument.

I'm in a very Bill Jamesian mood, having gone to my first Spring Training game ever today, in which my beloved Washington Nationals vanquished the visiting Mets. I would love to do a complete analysis of oral argument requests, grants, denials, and sua sponte orders on a service-by-service basis. But that is beyond my capabilities on a laptop in a hotel room in Lake Buena Vista. So here's what I did tonight. I searched LEXIS's CCA file for the last two years using this search query: "motion w/10 oral! w/4 arg! w/10 denied or deny and date aft march 12, 2005." The search produced nine results -- interestingly, all from the Navy-Marine Corps Court. Here are the nine cases:

1. United States v. Carlson, 2006 CCA LEXIS 27,*3 (N-M. Ct. Crim. App. 14 Feb. 2006) (“n2 We have also considered the appellant's motion for oral argument. The appellant's motion is hereby denied.”}.

2. United States v. McClelland, 2006 CCA LEXIS 6, *2 (N-M. Ct. Crim. App. 24 Jan. 2006) (“n1 The Motion for Oral Argument submitted by the appellant on 23 July 2004 is hereby denied.”).

3. United States v. Davis, 2005 CCA LEXIS 333, *1 (N-M. Ct. Crim. App. 3 Oct. 2005) (“The appellant's motion for oral argument is denied.”).

4. United States v. Williams, 2005 CCA LEXIS 289, *4 (N-M. Ct. Crim. App. 14 Sep. 2005) (“n3 The appellant's Motion for Oral Argument, filed on 15 November 2004, is denied.”).

5. Graves v. United States, 2005 CCA LEXIS 269, *2 (N-M. Ct. Crim. App. 26 Aug. 2005) (“We have considered all the filings by the parties. We grant all motions to attach and deny the petitioner's motion for oral argument.”).

6. United States v. Szymczyk, 2005 CCA LEXIS 184, *19 (N-M. Ct. Crim. App. 23 June 2005) (“The appellant's Motion to Request Oral Argument of 14 October 2003 is hereby denied. “).

7. United States v. Ashley, 2005 CCA LEXIS 168, *2 (N-M. Ct. Crim. App. 26 May 2005) (“n1 The appellant requested oral argument concerning the legal and factual sufficiency of her conviction. This motion is hereby denied.”).

8. United States v. Trujillo, 2005 CCA LEXIS 157, *20 (N-M. Ct. Crim. App. 16 May 2005) (“n6 The appellant's Motion to Request Oral Argument of 3 October 2002 is hereby denied.”).

9. United States v. White, 61 M.J. 521, 522 (N-M. Ct. Crim. App. 2005) (“n1 . . . On 5 November 2004, the appellant requested oral argument. That motion is hereby denied.”).

So over the last two years, NMCCA averaged 4.5 known oral argument denials. Of course, the actual number of oral argument denials is probably higher, since NMCCA no doubt denied oral argument in some cases that were not posted on LEXIS -- and may have denied some additional oral arguments in cases that are posted on LEXIS without noting the denial in the opinion or using a phrase that didn't fall within my search term. But in any event, since according to NRE, NMCCA averages 9.6 oral arguments annually, an annual denial rate of 4.5 oral arguments already seems rather high.

Two things are striking about the search's returns. First, every case that the search found was from a Navy-Marine Corps Court case. Making a similar search with an unrestricted date term reveals that the last non-Navy-Marine Corps opinion to use the search phrase was an Air Force Court decision released 11 September 2001. United States v. Philidor, 2001 CCA LEXIS 251, *2 (A.F. Ct. Crim. App. 11 Sep. 2001) ("We denied his motion for oral argument.").

Second, the last case revealed by the search is more than a year old. Of course, it is possible that NMCCA has denied oral arguments since Valentine's Day 2006. But the data present the possibility that NMCCA's practice has shifted over the last year (or possibly that counsel have reduced their number of oral argument requests). Perhaps NMCCA manning levels led to a spike of oral argument denials during calendar year 2005, followed by greater receptivity to oral argument as the bench strength (pun intended) grew.

Let me hasten with the caveat that Bill James would do much, much more to investigate the various CCAs' oral argument practice. But based on the preliminary research -- which shall henceforth be referred to as The Lake Buena Vista Project -- there does seem cause for concern that NMCCA denied a large number of oral argument requests in 2005, cause to investigate further whether this trend was idiosyncratic to the Navy-Marine Corps Court, and cause to investigate whether NMCCA has been more receptive to oral arguments over the course of the last calendar year. But those are questions better researched on days when I have tickets to see the Nats at RFK rather than at Space Coast Stadium.

DNA breakdown?

I suspect that many CAAFlog readers are far more familiar with Luke and Eckard than am I, so I hope that you will collectively, wiki-style, fill in the gaps on the orders that were posted on CAAF's web site today.

On 26 April, CAAF had granted review on this Grostefon issue in United States v. Eckard, No. 06-0001/AR:


But in an order dated Friday and posted today, CAAF remanded Eckard to ACCA. CAAF wrote:

On further consideration of the granted issue, the Court has determined that it would be appropriate to remand the case to the Army Court of Criminal Appeals for further consideration in light of the findings in the DuBay hearing in United States v. Luke. See, 64 M.J. 193, 193-97. Accordingly, it is ordered that the Hearing Notice issued February 5, 2007, is hereby vacated, and that the case is remanded to the United States Army Court of Criminal Appeals for further consideration in light of the DuBay hearing in Luke.

I'm sure it's happened before, but when is the last time you saw a case remanded due to a DuBay hearing in a different case--particularly when that different case is from a different service? Well, CAAF remanded that other case -- Luke -- to NMCCA on Friday (though, oddly enough, it spelled DuBay "Dubay" in the Luke order, which appears two cases above the daily docket entry for the Eckard order, which spelled DuBay "DuBay." See United States v. Luke, __ M.J. ___, No. 05-0157/NA (C.A.A.F. March 9, 2007).

So now we seem to have the same issue based on the same factual record before two different Courts of Criminal Appeals.

Can anyone tell us what the Luke DuBay hearing tells us about "Mr. M"?

Also, was the issue in Luke raised as a Grostefon issue or raised by counsel? If, as I suspect, the latter, any idea why it was a Grostefon issue in the Eckard case?

Web woes

The Coast Guard Court's web site has been down for some time. Does any of our legion of Coast Guard readers have a SitRep on our sister service's computer problems?

On a brighter note, NMCCA's February decisions now appear on its public web site -- and before the ides of March!

Sunday, March 11, 2007

FY06 Annual Report

The Eye observes that the FY06 Annual Report has been posted on the CAAF website. I'd attempt a link to it but The Eye has never moved past signal flags as its primary means of communication, so The Eye expects each of you to do your duty and find it yourself. For those of you who are curious about trends in the number of oral arguments at the various CCA's, no surprises this year -- the numbers remain low. NMCCA had 10 in FY06 and averaged 9.6 arguments per year over the past five FY's. During that same period, AFCCA averaged 13 a year, although the Appellate Defense and Appellate Government reported different numbers for FY06 arguments. I saw no comparable chart for ACCA but then again, I am visually challenged. The NMCCA and AFCCA numbers compel me to ask: are the numbers low simply because counsel don't request oral argument (either for tactical reasons or in an effort to avoid futile hours of preparation for a quixotic exercise)? Or are the courts denying motions for oral arguments?

Saturday, March 10, 2007

CAAF Downtime: Another BZ

While CAAF takes a break to get Judges Scott Stucky and Meg Ryan up to speed and out of their Hollywood lives, why not send out another BZ. CAAFlog has been full of them lately. This one goes out to an otherwise obscure Code in the Navy military justice system, Code 20. Though this month's installment of the Code 20 Newsmailer was not Jerry Seinfeld's greatest work, a few past installments have been worthy of Greenbag Almanac nominations. For those with NKO access, this week's installment is a tribute Van Halen (the band, Eddie, Alex and Wolfgang) and the rehab facility that now will host the band's latest tour.

Another interesting development is the new Navy JAG Corps Magazine hitting newstands . . . well probably nowhere but here The Jan/Feb 2007 issue has an interesting article by the head of Code 20 on the military justice career path. It seems to have worked for him. Others may want to check out page 8 of the magazine for a government friendly view of the Military Commissions Act.

CAAFlog Talk . . . with Linda Richman

Yes, it's the return of CAAFlog Talk. I'm going to be on the road for a while and will probably have only limited opportunities to post comments. But fear not! When the Kabul Klipper deploys shortly to Kuwait and the Afghanistan, CAAFlog will have contributors on three continents -- and in the afterlife (hi, Guert!). I'm sure they will keep you informed and entertained in my absence.

While I'm gone, here's an issue to discuss. As we all know, each of the military services has opted out of ABA Model Rule 1.10's imputed disqualification standard. For example, here is the relevant portion of Army Rule of Professional Conduct for Lawyers 1.10: "(a) Army lawyers working in the same Army law office are not automatically disqualified from representing a client because any of them practicing alone would be prohibited from doing so by Rules 1.7, 1.8(c), 1.9 or 2.2." But just because services allow lawyers with imputed disqualifications to work in the same office doesn't mean it's necessarily a good idea.

Here's the discussion topic: should the various services agree that where an appellate defense division receives two cases that would implicate the imputed disqualification rule for a civilian law firm, the appellate defense division will transfer one of the cases to another service's appellate defense division? Good idea? Bad idea? Highly improbable to be adopted idea? What do you all think?

Friday, March 09, 2007

Optional AVA

I'm at the Navy Mobilization and Processing Center in Norfolk getting caught up on vaccinations before I go to Ft. Jackson and then to Afghanistan. As of today, the anthrax vaccine is still optional in the Navy but mandatory in the Army and Air Force. It's just a signature away from being mandatory in the Navy.

I decided to take the first dose. I figure if I'm going to a country in which the national sport involves a contest for a headless goat carcass, it couldn't hurt to have immunity even if you could rule out the risk of weaponized anthrax.

Thursday, March 08, 2007

A miljus doppio

The December issue of the Army Lawyer appeared on the TJAGLCS web site today. It seems like just yesterday that the November issue was posted. Wait a second -- that did happen just yesterday.

For us military justice wonks, looking at yesterday's issue was a bit like showing up at a Starbucks only to find it had closed and been replaced by an H&R Block. We didn't get our caffeine jolt. But by today we were able to walk to the Starbucks on the next block. And there the barista served us with a miljus doppio. (I saw Jerry Seinfeld doing standup at the Kennedy Center a couple of years ago. One of the early jokes in his show was, "You people in Washington are so hooked on caffeine, you stop for coffee on your way to Starbucks.")

The December issue features both a piece on pretrial punishment and a military judge's take on aggravating evidence in sentencing cases.

But just wait for the next Military Law Review to hit the street with my veritable quad shot on the military death penalty system. That'll have you buzzing.

New published ACCA opinion

ACCA released a published opinion today, just the fourth this fiscal year. In United States v. Acosta-Zapata, __ M.J. ___, No. ARMY 20021346 (A. Ct. Crim. App. 8 March 2007), the Army Court held that a military judge erred by refusing to instruct the members that a reasonable and honest mistake of fact as to the child's age can be a defense to indecent acts with a child. But the court concluded that the error was harmless beyond a reasonable doubt.

Wednesday, March 07, 2007

Resource altert

The November Army Lawyer is now posted on the TJAGLCS web site. But there's not much of interest unless you are a legal assistance lawyer or want to vicariously live the life of a Brazilian Army Command and General Staff College student.

Tuesday, March 06, 2007

New published Air Force Court opinion

The Air Force Court's web site has a new published opinion, which includes a lengthy Military Rule of Evidence 413 analysis. United States v. Rangel, __ M.J. ___, No. 36382 (A.F. Ct. Crim. App. 2 March 2007).

Coast Guard Ex Writ

Anyone have inside gouge on the extraordinary writ from the CGCCA? Morton (Misc. No. 07-8009/CG) appeared on the CAAF Daily Journal for March 5, 2007 (the CAAF Daily Journal is, at least for the time being, now a daily, Daily Journal). The journal entry states that the motion for a stay of the CGCCA proceedings was granted. The journal says that the stay was granted until Mar. 8, 2007, and further action on the petition is held in abeyance pending the Court's final aciton. Based on the wording it is tough to tell if they mean final action by CGCCA or CAAF, but it must be CGCCA. No CGCCA decision in the case is available on the CGCCA website. Anyone know what the petition all about?

Monday, March 05, 2007

From moot court to mute court?

Today's daily journal update includes a pair of orders denying law students' motions to orally argue cases as amicus curiae. United States v. Moran, __ M.J. ___, No. 06-0207/AF (C.A.A.F. March 1, 2007) (order allowing Georgetown University Law Center Appellate Litigation Program and Washington College of Law students leave to file amicus briefs but denying motions to present oral argument); United States v. Lewis, __ M.J. ___, No. 07-5002/AR (C.A.A.F. March 1, 2007) (order allowing Georgetown University Law Center Appellate Litigation Program to file amicus briefs but denying motion to present oral argument).

The Lewis order indicates that the government opposed the students' motion to participate as amicus, but no such opposition is noted in the Moran order. As some of my previous posts suggest, I'm not a fan of law students participating in oral arguments; I believe such faux amicus arguments detract from CAAF's central mission of deciding cases justly. So I hope the Lewis and Moran orders reflect a policy shift by the court.

Lane joke

CAAF held a classy investiture ceremony for its two newest judges today.

Probably the biggest laugh of the day occurred during Brigadier General Edward F. Rodriguez, Jr.'s remarks about Judge Stucky. (BGen Rodriguez is the JAA President.) Senator Lindsey Graham was there to administer the oath of office to Judge Stucky. BGen Rodriguez was diplomatically mentioning each of the assembled VIPS, when he referred to "Senator and former Judge Graham." The audience, obviously well-versed in Lane, roared.

The most touching remarks of the day were delivered by Justice Thomas, who administered the oath of office to Judge Ryan. He mentioned that this was the first oath of office he has administered to make one of his former clerks a judge.

And the funniest line of the day oddly got little response from the audience. Judge Ryan referred to joining her four (all male) colleagues on the bench, and mentioned each by name. She then said, "For the record, I do not expect to feel lonely at all." This was an obvious reference to Justice Ginsburg's complaint that she feels lonely as the only woman left on the Supreme Court since Justice O'Connor's retirement. I roared with laughter. Professor Bo Rutledge, who was sitting two seats down from me, roared with laughter. Not many others roared with laughter. But I thought it was even better than the Lane joke.

In any event, congratulations to Judges Stucky and Ryan in the unlikely event that they read CAAFlog. Their appointment and confirmation to the CAAF bench is a favorable development for the military justice system. (Until very recently, I would have thought it silly to even think that an august judge might take the time to read our electronic ramblings. Of course, Chief Judge Wagner of the Navy-Marine Corps Court has since disabused me of that notion.)

Saturday, March 03, 2007

Random thoughts on MRE 404(b)

Guert's post of 1 March caused me to look into something about CAAF's 404(b) analysis that has bothered me for a long time. And since we're in a little bit of a lull as far as new CAAF cases go, why not air old grievances?

My complaint pertains to the way CAAF analyzes whether a prior act is admissible on the basis that it is part of a common scheme or plan with the charged misconduct. In particular, I disagree with the emphasis CAAF places on whether the two acts in question are substantially similar to one another. The way CAAF approaches the "common scheme or plan" today can be traced to the CMA decision in United States v. Brannan, 18 M.J. 181 (1984). In Brannan, the accused faced court-martial for inviting PFC Hall and Specialist Four Jones into his pickup truck, producing two marijuana cigarettes, and inviting both Hall and Jones to "fire it up." After the three smoked the marijuana, the accused produced a paper bag full of smaller plastic baggies and offered to sell additional marijuana for $25 or $30 per bag.

At trial, the government sought to introduce evidence that the accused had previously transferred baggies of marijuana to other Soldiers on three different occasions, and that he had smoked marijuana previously. The government asserted that this evidence tended to show "a common scheme, plan or design [by appellant] for the continual sale of marihuana to troops on this post." Id. at 183. CMA considered that argument thus:

"In order for the other offenses of appellant to be relevant for the above
purpose, they must be . . . almost identical to the charged acts and each other
. . . so as to naturally suggest that all these acts were results of the same
plan. United States v. Danzey, [594 F.2d 905, 913 (2nd Cir. 1979).]
. . . [T] he absence of similarity of acts seriously undermined the relevance of
this evidence to show the plan particularly averred by trial counsel."

Id. at 184.

While I agree with the result of that analysis, the reliance on the dissimilarity of the offenses to show lack of a common scheme or plan is (in my humble opinion) a logical glitch that is causing confusion in the court's 404(b) analysis to this day. The implicit assumption that the court makes is that two bad acts that originate from the same scheme are necessarily going to be "almost identical." But why? Doesn't a criminal scheme frequently involve multiple, interdependent bad acts that are dissimilar? For example, might not a criminal hatch a scheme to steal a firearm and shoot someone? I tend to think that by looking for similarities, courts are more likely to scoop up bad acts that show propensity to commit bad acts of that kind while disregarding the extrinsic bad acts that complete the picture of a larger criminal scheme or plan.

I'm not saying the court just made it up. The cases the court relies on (Danzey, supra, and United States v. Dothard, 666 F.2d 498 (11th Cir. 1982)) give some support to this approach. Those courts, in turn, cite to Evidence stalwarts McCormick and Wigmore. I know, I know--I should stop there. That really ought to be good enough. But it bothers me that the circuit court quotes McCormick for the proposition that the similarities must amount to a "device [that] must be so unusual and distinctive as to be like a signature." Danzey, 594 F.2d at 913, fn 6, quoting McCormick's Handbook of the Law of Evidence § 190, at 449 (E. Cleary ed. 1972). This is a rationale I associate with proving identity, a concept distinct (at least in my own mental evidence hornbook) from the common scheme or plan basis for admissibility. Perhaps these rationales were more amorphous in the pre-FRE days when the McCormick wrote his treatise.
The focus on the similarity of the extrinsic act with the charged act has dominated CAAF's "common scheme or plan" doctrine ever since. See, e.g., United States v. Mann, 26 M.J. 1 (1988), United State v. Munoz, 32 M.J. 359 (1991), United States v. McDonald, 59 MJ 426 (2004). I think this approach misses the mark. It's both over- and under inclusive. Anyone else noticed this? Am I missing something?

Still another published CGCCA opinion

The CGCCA web site is still down, but the court itself continues to pump out published opinions. The latest is United States v. Greene, __ M.J. ___, No. 1226 (2007 CCA LEXIS 42 (C.G. Ct. Crim. App. 28 Feb. 2007).

Greene involves three issues. The first was a challenge to the accuracy of the transcript. The Coast Guard Court rejected this challenge, concluding: "Appellant has not identified any specific omission in the authenticated record, but would have us infer additional unspecified and unknown omissions based upon the fact that the military judge found omissions to correct. This we decline to do."

An appellate defense counsel who believes that the record of trial might be inaccurate should request a copy of the tapes of the proceedings from the court reporter. Alternatively, the appellate defense counsel can ask the trial defense counsel to review parts of the tapes. Often the trial defense counsel will have a sufficiently good relationship with the court reporter to get access to the tapes. If the issue can't be resolved by such informal means, the appellate defense counsel should file a motion with the CCA seeking an order requiring the government to produce the tapes, pointing out the reasons to doubt the transcript's accuracy. In three cases I litigated as an appellate defense counsel, we succeeded in obtaining the tapes of the trial. Counsel can then compare the transcript to the tapes to determine whether it is verbatim.

The second issue in Greene involved post-trial delay. The CA acted 173 days after trial and the Coast Guard Court received the record 201 days after trial. The Coast Guard Court found "a clear lack of institutional diligence resulting in unreasonable post-trial delay in this case." In the exercise of its Article 66 powers, the Coast Guard Court reduced Greene's demotion from E-1 to E-2. My best guess is that this returned some greenbacks to Greene. LCDR Truax, does setting aside a bust for a Coastguardsman who is given a BCD result in any meaningful relief?

Finally, the Coast Guard Court declined to provide relief because Greene never pled to one of the specifications of which he was found guilty based on his non-existent plea. The court reasoned:

Rule for Courts-Martial 910(b), Manual for Courts-Martial, United States (2005 ed.), provides that if an accused fails to plead, the military judge shall enter a plea of not guilty. Assuming a not-guilty plea to the specification at issue, the providence inquiry, during which Appellant was sworn . . . and testified under oath, provided ample evidence in the form of Appellant's testimony to prove the specification.

Greene, 2007 CCA LEXIS 42, at *11-*12 (footnote omitted). The Coast Guard Court also cited a Navy-Marine Corps Court decision that had come out the same way. United States v. Williams, 47 M.J. 593 (N-M. Ct. Crim. App. 1997).

The Coast Guard Court added, "We cannot discern any possible prejudice based on the entry of a finding of guilt of the specification after the absence of a plea to it." How's this for prejudice: if he never pled guilty to it, he was prejudiced by being found guilty on the basis of his purported plea? The Coast Guard Court might have reached the right conclusion, but I think the issue is certainly more difficult that the court lets on. Perhaps CAAF will choose to wrestle with it on a deeper level.

Friday, March 02, 2007

The Dearing saga continues

Look what just showed up on the Supreme Court's online docket. (I have no idea why this wasn't posted on the online docket until a month after it was filed.)

No. 06A754
Title: United States, Applicant
Brian Dearing

Lower Ct: United States Court of Appeals for the Armed Forces
Case Nos.: (05-0405)

~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Feb 1 2007 Application (06A754) to extend the time to file a petition for a writ of certiorari from February 13, 2007 to March 15, 2007, submitted to The Chief Justice.
Feb 5 2007 Application (06A754) granted by The Chief Justice extending the time to file until March 15, 2007.

Thursday, March 01, 2007

Another new published NMCCA opinion

Today's February NMCCA case dump onto Navy Knowledge Online included not only Parker and Gallagher, both from yesterday, but also the Edwards opinion from last week. United States v. Edwards, __ M.J. ___, No. NMCCA 200600836 (N-M. Ct. Crim. App. 21 Feb. 2007). The case involves a providence inquiry issue, a multiplicity/unreasonable multiplication of charges issue, and a reverse Ohrt issue. The Air Force Court once memorably complained that an appellant "invites us to descend with him into that inner circle of the Inferno where the damned endlessly debate multiplicity for sentencing." United States v. Barnard, 32 M.J. 530, 537 (A.F.C.M.R. 1990). As Edwards makes clear, there is yet another inner circle: where the damned debate not only multiplicity, but also sufficiency of the providence inquiry and the flip side of Ohrt.

The most significant portion of the Edwards opinion holds that the military judge erred by limiting the defense's ability to elicit opinion evidence concerning the accused's rehabilitative potential. Now for the strange part. NMCCA bases its holding of error largely on United States v. Griggs, 61 M.J. 402 (C.A.A.F. 2005). Judge Baker wrote for the majority in Griggs, joined by Chief Judge Gierke and Judges Effron and Erdmann. Please note that the author judge remains on the court and judges who joined the Griggs majority remain a majority on CAAF. Judge Crawford concurred in part and dissented in part. Judge Baker's opinion for the court set out this standard for assessing prejudice:

We test the erroneous admission or exclusion of evidence during the sentencing portion of a court-martial to determine if the error substantially influenced the adjudged sentence. See United States v. Boyd, 55 M.J. 217, 221 (C.A.A.F. 2001) (citing Kotteakos v. United States, 328 U.S. 750, 765, 90 L. Ed. 1557, 66 S. Ct. 1239 (1946)). If so, then the result is material prejudice to Appellant's substantial rights. Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2000).

United States v. Griggs, 61 M.J. 402, 410 (C.A.A.F. 2005).

Judge Crawford's separate opinion stated, in part, "Rather than relying on United States v. Boyd, 55 M.J. 217 (C.A.A.F. 2001), which examined sentencing instructions for prejudice and addressed no evidentiary issues, I would apply this Court's logic from United States v. Saferite, 59 M.J. 270, 274-75 (C.A.A.F. 2004)."

United States v. Griggs, 61 M.J. 402, 413 (C.A.A.F. 2005) (Crawford, J., concurring in part/dissenting in part).

Got that? The Griggs majority applied Boyd. The dissent applied Saferite in lieu of Boyd. Yet in Edwards, NMCCA wrote, "We elect to apply the Saferite factors suggested by Judge Crawford in her dissent because they provide a more thorough framework for determining whether the error influenced the adjudged sentence. We share her reluctance to apply United States v. Boyd, 55 M.J. 217 (C.A.A.F. 2001) . . . ." Edwards, No. NMCCA 200600836, slip op. at 6 n.2. As CAAF has reminded the CCAs many times before, and as Judge Baker and his colleagues may soon have the chance to remind NMCCA again, it isn't NMCCA's prerogative to decline to apply a CAAF majority opinion. See, e.g., United States v. Kelly, 45 M.J. 259 (C.A.A.F. 1996) (smacking NMCCA for preemptively overruling Booker); United States v. Allbery, 44 M.J. 226, 227 (C.A.A.F. 1996) (reminding AFCCA that it "is not generally free to ignore our precedent"). You would think military appellate judges would get that whole duty to follow superiors thing. And NMCCA rubbed the Griggs majority's nose in it, twice referring to following Judge Crawford's dissent. (Oddly enough, on the following page of the Edwards opinion, NMCCA cites Griggs citing Boyd, after telling us on the previous page that it was applying Saferite instead.) Anyone care to predict the shelf life of that portion of the Edwards opinion?

Two published decisions in one day! United States v. Gallagher

On February 28, 2007, the Navy-Marine Corps Court of Criminal Appeals decided United States v. Gallagher. The case raises interesting issues involving M.R.E. 404(b) and the 4th Amendment. Gunnery Sergeant Gallagher lived in military housing with his wife and children. His wife worked part-time as a manager at blockbuster video. Gunnery Sergeant Gallagher placed a camera in the bedroom of a ten-year-old neighbor and fellow Marine. On November 2, 2001, while NCIS agents were speaking with Gunnery Sergeant Gallagher on Paris Island, other agents were dispatched to his home to seek a permissive search authorization from his wife. The agents were looking for photographs of the ten-year-old neighbor. His wife consented, and she waited in the living room as the agents searched the family home. During a search of the garage, which the family had converted into a common area, the agents came across a man's briefcase sitting next to a refrigerator. Whether the briefcase was locked was disputed at trial, but the Court sided with the NCIS agents who testified that it was not. They opened the briefcase and found child pornography. They then took the briefcase into the living room where, for the first time, Mrs. Gallagher told them that the briefcase belonged to her husband.

The case centers on the reasonableness of the search of a closed briefcase in the family home and whether Mrs. Gallagher's consent to search was valid with respect to the briefcase. In finding the search to be reasonable, the Court relied heavily upon United States v. Melgar, 227 F.3d 1038 (7th Cir. 2000). In Melgar, a number of men and women were in a hotel room. One of the women who had rented the room gave consent to search the room. During the search, agents found a floral purse and opened it. The Seventh Circuit noted, "generally, consent to search a space includes consent to search containers within that space where a reasonable officer would construe the consent to extend to the container." The Court reasoned that law enforcement had no way of knowing that the floral purse found did not belong to the female renter who had consented to the search and that the search was reasonable under those circumstances.

I wonder if the NMCCA did not set itself up for reversal by relying so heavily upon Melgar. Is Melgar really that closely related to the situation in Gallagher? Did the NCIS agents really believe that the men's briefcase sitting beside the refrigerator could have belonged to Gallagher's stay-at-home wife or minor children? Perhaps she used the briefcase in her part-time duties at blockbuster. What if Gallagher had hidden the photographs in a humidor? How about a shaving kit? I suspect the result would have been the same at NMCCA. It is certainly possible that some women smoke cigars while shaving and carrying around men's briefcases. But, if the right to search the home is a close call, to which NMCCA is entitled some discretion, the next issue is not even close.

The government sought to introduce the testimony of VK. VK, then 21, would testify that, when she was 10, Gunnery Sergeant Gallagher had a sexual relationship with her. Gallagher was acquitted by an Ohio jury of the crime intercourse with VK in 1994. The government sought to introduce VK's testimony to rebut Gallagher's defense that he had innocently placed the video camera in VK's room to make a movie about the family home for her family. The Court found that Gallagher's alleged sexual relationship with VK when she was ten was logically and legally relevant to negate his claim of mistake of fact on the "peeping tom" offense. The Court cited the cases of United States v. Barnett, 63 M.J. 394 (C.A.A.F. 2006) and United States v. Thompson, 63 M.J. 228 (C.A.A.F. 2006), but did it read them? The prior bad acts in Barnett were much more similar to the charged misconduct than those in Gallagher, and the C.A.A.F. found them to be inadmissible.

Judge Vollenweider, M.R.E. 404(b) called. I am afraid it is bad news. You decision has less than a year to live.

NMCCA publishes order in capital case (Parker)

I haven't seen the decision yet, but apparently NMCCA published its response to CAAF's order in Parker. Here is the CAAF order that NMCCA responded to:

OPINION: On further consideration of Petitioner's request for extraordinary relief and related matters filed by both parties, it is ordered that the Government shall provide Petitioner with an appropriate expert consultant for purposes of the pending litigation; that the matter is remanded to the United States Navy-Marine Corps Court of Criminal Appeals to consider the continued availability of the sentence to death in light of the following:
The Government stated in this Court that (a) "mental retardation is generally thought to be present if an individual has an IQ [intelligence quotient] of approximately 70 or below" and that "there is a standard of error of measurement, which is approximately 5 points overall,"; and (b) "a full scale Intelligence Quotient (IQ) test" administered prior to Petitioner's court-martial determined Petitioner's IQ to be 74. See Atkins v. Virginia, 536 U.S. 304, 153 L. Ed. 2d 335, 122 S. Ct. 2242 (2002).That the Court of Criminal Appeals shall consider such other issues as may be raised by the parties; and That the stay previously ordered by the Court in "all matters before the court below regarding the Mental Health Evaluation [*2] of Petitioner" shall remain in effect pending further order of this Court.

61 M.J. 63 (CAAF 2005)

I understand that NMCCA decided that death was still available as an option and adopted a 3 part mental retardation test with the burden on the appellant to show he is mentally retarded by a preponderance of the evidence.

NMCCA further found that death could not be imposed until Appellant had a full and fair opportunity to meet the test. NMCCA also apparently recommended a DuBay hearing, but didn't order one, instead returning the case to CAAF.

Again, I haven't gotten my hands on the decision, so I might have some of the details wrong. I am sure somebody will track it down shortly. Alas, it was not on Lexis or the NMCCA website.