Monday, March 31, 2008

Competing competing consent opinions

The en banc opinion in United States v. Weston, __ M.J. ___, No. NMCCA 200600985 (N-M. Ct. Crim. App. Mar. 31, 2008), is unsatisfying not because Senior Judge Geiser's opinion for the court is deficient -- it isn't; it ably lays out the case for admissibility of the evidence -- but because Senior Judge Rolph and Judge Kelly give us no hint as to why their votes flipped.

The en banc decision is virtually a mirror of the panel decision. Both rely on Georgia v. Randolph, 547 U.S. (2006), to analyze a situation where a husband and wife are both at a law enforcement agency's office where the suspect spouse refuses to give consent to search the home computer while the non-suspect spouse gives such authority unaware that her husband has refused consent. Both decisions rely on "social expectations" to decide the outcome of that scenario. The opinions intuit that social expectation rather than looking to some external source of guidance. How could it be that in the panel decision, two NMCCA judges found that social expectations vindicated the objecting spouse while in the en banc decision, the same two judges found that social expectations vindicated the consenting spouse? We have no idea.

Here's what the panel said:

Of greatest concern is whether the shared social expectations and common understanding of a person at the physical residential threshold would be the same as someone who was not at the front door when competing invitations to enter are communicated. Would a sensible person who is presented with competing invitations away from the shared residence have any confidence that the "invitation was a sufficiently good reason to enter when a fellow tenant" told them to stay out? Randolph, 547 U.S. at 113. If the invitee knew that the non-consenting co-tenant would not or could not be present at the shared residence to enforce his refusal, would shared social expectations and common understanding lead a sensible person to have confidence that the competing invitation is a sufficient reason to enter? We think not.

Now here's what the en banc decision says:
There is no widely-shared social expectation that a reasonable third party, invited into a home by one of the residents, would decline that invitation merely because he or she was aware that an absent co-tenant objected to their presence. While some reasonable people might think better of visiting a residence if they knew an absent co-tenant did not want them, other reasonable people would have no such qualms. Consequently, it cannot be said there exists a widely-shared social expectation that the reasonable invitee would not accept the invitation.

How could two judges join both of those opinions? They give us no idea.

The inevitable discovery portion of the opinion is, if anything, even more frustrating. The panel emphasized the Keystone Kop approach of the investigating CID agents and reasoned that there was nothing inevitable about any ultimate lawful search of the computer. The en banc decision, on the other hand, appears to simply assume that had consent not been given, Agents McGarrett and Williams would have stepped in and everything would have gone smoothly. See Weston, slip op. at 14-15.

The panel reasoned:
[T]he Government's evidence establishes no more than that the seized evidence "could" have been discovered if an alternative procedure had been implemented as part of the investigation. Only speculation can get the Government beyond what "could" have been done and what results "might" have been achieved. Because we must focus on the "demonstrated historical facts capable of ready verification or impeachment," without speculation, Nix, 467 U.S. at 444 n.5, we conclude that the Government did not carry its burden of establishing inevitable discovery by a preponderance of the evidence.

Yet the en banc decision appears to engage in just such speculation when it reasons:
It would be wholly unreasonable to conclude that Agent Stevenson would have simply abandoned her efforts to find and secure the computer in the face of a lack of consent. It is equally unreasonable to conclude she would not have applied her superior knowledge and experience in using the existing and available resources, including the trial counsel, to quickly obtain a search authorization had that, in fact, been necessary.

The fact that, having secured the computer, Agent Stevenson elected to delegate responsibility to her trainee to obtain a warrant to search the contents of the seized computer is of little moment. Tasking a subordinate to obtain a search warrant when the computer evidence is already safe and secure in the CID evidence locker has far less urgency than the situation that would have existed had Mrs. Weston declined to consent to the initial search.

Weston, slip op. at 14-15.

In other words, had Mrs. Weston not consented everything would have been totally different and NMCCA will guess that CID would have gotten a lawful search authorization. Again, how do two judges get from the former view of inevitable discovery to the latter? They don't tell us.

There is some reason to think that perhaps NMCCA's en banc decision won't be the last word.

Senior Judge Geiser's opinion for the court forthrightly observes, "We are cognizant that an objecting, non-present appellant is a case of first impression to our court and to a lesser degree within the federal circuits." Weston, slip op. at 13. Perhaps CAAF will choose to explore this case further to decide whether two of NMCCA's judges were right when they joined the panel decision on 25 September 2007 or when they joined the en banc decision on 31 March 2008.

NMCCA published en banc opinion reverses decision setting aside the findings and sentence

NMCCA released its en banc reconsideration opinion today in United States v. Weston, __ M.J. ___, No. NMCCA 200600985 (N-M. Ct. Crim. App. Mar. 31, 2008) (en banc), a competing consent case. It isn't on NMCCA's web site yet, so I've posted it here.

I've only scanned it once. I'll read it and post more later tonight, unless someone beats me to it. But here's what immediately leaps out at me. In the panel decision, which you can find here, SSgt Weston prevailed 3-0, with Senior Judge Rolph and Judge Kelly joining Senior Judge Harty's opinion for the court. Yet on en banc reconsideration, Senior Judge Rolph and Judge Kelly join every other NMCCA judge in voting to reverse the panel decision.

We discussed the panel decision here.

Another Art. 2(a)(10), UCMJ Article

'Tis the season for Art. 2(a)(10) publications. This article, by Kara Sacilotto, a partner at Wiley Rein, is titled Jumping the (Un)Constitutional Gun" Constitutional Questions in the Application of the UCMJ to Contractors, 37 Pub. Contract. L. J. 179 (Winter 2008). I'll try to get a link to an electronic version from the ABA later today. This is another article published as a result of the 2007 ABA conference session on the application of the UCMJ to civilian contractors.

With another article comes No Man's continued stream of BZs for another good article on this topic, but again an issue with the conclusions in the article---which is not to say they are poorly reasoned, I just disagree. First, I should note that I wholeheartedly agree with her conclusion that MEJA is "arguably preferable for crimes committed overseas by civilian contractors," though I would omit the arguable. However, Ms. Sacilotto references SecDef's withholding memo that was still in draft at the time of her article and we discussed recently, memo available here. She states, "If DoD rejects the JSC's recommendations and permits application of the UCMJ for offenses committed within the United States, the Court may be more likely to find that Congress went too far."

My disagreement with that conclusion is with the assumed scope of SecDef's Art. 22, UCMJ withholding power. SecDef cannot restrict the class of persons upon which the UCMJ can be applied. SecDef can only withhold to itself commanders' ability to exercise that power. The ability to prosecute contractors "serving with or accompanying an armed force in the field" during "contingency operations" still resides in SecDef pursuant to the congressional grant in Art. 2(a)(10). Thus, if an attack on Art. 2(a)(10) as amended is a facial challenge, SecDef's withholding memorandum has no effect on the challenge. An as applied challenge, would also be unaffected by the memo because the memo only affects who may prosecute a particular individual, not if the individual may be prosecuted under the UCMJ.

I think that a decent argument can be made that the commonly understood, and generally accepted, meaning of the terms of the statute may be at odds with the construction that Ms. Sacilotto states would allow the courts to narrowly construe the statute to make it constitutionally acceptable. Since Congress, via Sen. Graham the drafter of the provision, was well aware of these definitions, one would think they would apply to the statute. But, I will let our readers draw their own conclusions about whether the terms of the statute can be constitutionally construed . . . and I just don't have time to pull all the research cited in the article (at 192-199, 210-12 and accompanying footnotes).

Sunday, March 30, 2008


I had been planning to take a midterm look at CAAF this weekend, but then I remembered that this is a truncated 11-month term. So the midterm point actually arrived just about St. Patrick's Day.

CAAF has 65 oral arguments scheduled for this term. So far it has issued opinions in just over half of all the cases it will hear this year -- 34. (The court has yet to hear four oral arguments, so it's decided about 56% of the cases it has heard thus far.)

CAAF has issued opinions (or, in the case of Martinez, No. 07-0028/MC, a summary disposition order) in every case it heard in October. It has decided every case it heard in November except for United States v. Larson, No. 07-0263/AF, in which it ordered additional briefing on 29 November. It has decided 7 of the 10 cases it heard in December, 5 of the 11 cases it heard in January, and 1 of the 10 cases it heard in February.

Every judge on the court has authored two opinions except Judge Baker, who has authored three. Two cases were decided by per curiam opinions (Wright, No. 07-0412/AR, and Perez, No. 08-5002/AF) and one by a brief summary disposition order (Martinez).

There have been very few dissents -- just 4 of the 34 resolutions (about 12%) were dissented from. But separate opinions have been more common. Only 22 of the 34 opinions (or, in the case of Martinez, order) (about 65%), did not feature a separate concurring, concurring in the result, dubitante, or dissenting opinion.

Saturday, March 29, 2008

Government dismisses charges in United States v. Tatum

Here's a link to the article in Saturday's WaPo about the government's dismissal of charges against LCpl Stephen B. Tatum arising form the Haditha incident.

New Army Lawyer issue posted online

The January issue of the Army Lawyer is now available online here. But please avert your gaze; it's the dreaded annual contract and fiscal law developments issue.

Friday, March 28, 2008

Air Force Court creates service split on whether victim's trauma from appearing at trial is permissible aggravation evidence

In a published opinion issued Thursday, the Air Force Court created a service split on an important and recurring issue: whether the government may permissibly present evidence during its case in aggravation and argue on sentencing that the accused's offenses traumatized the victim by forcing her (or him) to appear at trial and discuss the accused's offenses. In United States v. Stephens, __ M.J. ___, No. ACM 36682 (A.F. Ct. Crim. App. Mar. 26, 2008), the Air Force Court said yes. The court didn't cite a previous published ACMR opinion holding no. United States v. Carr, 25 M.J. 637 (A.C.M.R. 1987).

In Stephens, the military judge permitted the 13-year-old victim's father to testify during the government's sentencing case "concerning the impact that the pretrial and trial process (specifically testifying at the Article 32, UCMJ, investigation and at trial) had on his daughter. Her father told the members that the process of testifying multiple times and having to retell the story of her victimization 'has been totally devastating' . . . ." Id., slip op. at 9-10. At trial, the defense objected "that this line of testimony essentially punished [the accused] for asserting his constitutional right to a jury trial, to cross-examine the witnesses against him, and to have the government bear the burden of proving every element of the offenses with which he was charged." Id., slip op. at 10. The military judge nevertheless allowed the father to testify "to the emotional impact on BU of having to go through the judicial process." Id., slip op. at 11.

The Air Force Court affirmed the military judge's ruling. AFCCA reasoned that "it would be unreasonable for someone who commits an offense of this type to argue that it is unforeseeable that the victim of a sexual assault would be called testify [sic] at a trial. Further, it would be just as unreasonable to argue that one could not foresee that the act of testifying could be emotionally difficult for a 13-year-old girl." Id. The court concluded, "Having to testify at trial . . . is directly related to, and results from, the commission of the offense." Id.

In Carr, on the other hand, the Army Court held that the trial counsel's sentencing argument was "impermissible" because he "was allowed to argue adverse impact in aggravation flowing from the appellant's exercise of his constitutional rights to confront and cross-examine witnesses against him." Carr, 25 M.J. at 638 (footnote omitted). ACMR reasoned, "[W]e find that it is inappropriate that any party to a court-martial should be allowed to profit, directly or indirectly, by argument on findings or sentence regarding an exercise of a constitutionally protected criminal due process right." Id. at 639. The court continued:

While ensuring fundamental fairness at trial unavoidably impacts upon all parties thereto, such "impacts," in our view, relate directly to the due administration of the military justice system rather than to offenses on which there are findings of guilty. Accordingly, argument urging systemic impact resulting from the exercise of constitutional rights at trial is impermissible in aggravation. R.C.M. 1001(b)(4) (matters in aggravation must directly relate to or result from the offenses of which an accused has been convicted).

Id. The Army Court knocked two years off of Sergeant Carr's approved sentence to remedy the error. Id.

I find the Army Court's reasoning more convincing than the Air Force Court's. More importantly, so does the Eighth Circuit. In Burns v. Gammon, the "prosecutor asked the jury, while considering guilt and sentencing, to consider the fact that Burns, by exercising his constitutional right to a jury trial and to confront witnesses, forced the victim to attend trial, take the stand and relive the attack." 260 F.3d 892, 896 (8th Cir. 2001). Reaching a conclusion similar to that of the Army Court's in Carr, the Eighth Circuit held, "The prosecution cannot use the defendant's exercise of specific fundamental constitutional guarantees against him at trial." Id.

But whatever the correct outcome of this legal issue, Stephens cries out for CAAF review. It cannot be that a Soldier is entitled to a new sentencing hearing where the prosecution presents evidence like that in Stephens, but an Airman is not.

Thursday, March 27, 2008

AFCCA published competing consent/inevitable discovery case

The Air Force Court issued a published opinion yesterday. It's not up on its web site yet, so I've posted it on United States v. Sanders, __ M.J. ___, No. ACM 36707 (A.F. Ct. Crim. App. Mar. 26, 2008).

AFOSI agents received information suggesting that SrA Sanders had possessed child pornography in his base quarters during his previous tour. They brought Sanders in for questioning and advised him of his rights. He admitted that if they were to search his home computer, they would "probably" find child pornography. When asked if he would consent to such a search, he refused and asked to speak with counsel. The OSI agents responded to this apparent setback by asking Sanders' First Sergeant to keep him occupied while they tried to obtain a search authorization and consent from Sanders' wife. That little stratagem worked like a charm -- or at least most of it did. Sanders was kept busy, but the agents didn't succeed in reaching the magistrate so they left a message for him. They were more lucky with Mrs. Sanders, who signed a form consenting to the search and seizure of the Sanders family's computer.

As the OSI agents were driving off with the Sanders' computer, they received a call from the military magistrate. After the agents told the magistrate that SrA Sanders had admitted that child pornography would probably be found on his computer, the magistrate verbally authorized the computer's search and seizure. He reduced that authorization to writing the following day. Child pornography was eventually found on the computer and the defense lost a suppression motion at trial.

In its opinion, the Air Force Court strongly suggests, but ultimately doesn't hold, that arranging for SrA Sanders to be tied up while seeking consent from his wife without telling her that her husband had refused to consent violated Georgia v. Randolph, 547 U.S. 103 (2006), characterizing the OSI agents' conduct as "disturbing." Sanders, slip op. at 4.

But the court ultimately punts on the Randolph issue because it concludes that the evidence would inevitably have been discovered via the search authorization.

CAAF grants on housebreaking issue

CAAF has granted review of the following issue arising from a published ACCA opinion involving a West Point cadet:


United States v. Conliffe, __ M.J. ___, No. 08-0158/AR (C.A.A.F. Mar. 25, 2008) (order).

We discussed ACCA's opinion in Conliffe, 65 M.J. 819 (A. Ct. Crim. App. 2007), here.

Pack distributed for 11 April conference

Within two weeks, we'll know whether a Justice asks the SG to file a respond to the Pack cert petition.

Wednesday, March 26, 2008

A Celebration of Sorts . . . CAAFlog passes 1,000 Posts - And No Man Still Writes About Art. 2, UCMJ

First, lets raise a glass to CAAFlog, the man or the blog, for CAAFlog has passed 1,000 posts since its founding about 1 year, 6 months and 5 days ago. That's almost two posts a day, not bad for a tiny blog on an obscure legal subject by one mental giant and, initially, 3 not so much tag alongs. Anyone remember the first case discussed on CAAFlog (no peeking at the blog archive)? Answer here. Since then we have added two dead contributors, one former AFCCA judge contributor, a website, and hours of reading pleasure for our two faithful commenters (JO'C and Anonymous). Since Sacramentum apparently deployed to a land far far away, we now are the undisputed top of the military justice blog world.

Now, on to the Art. 2, UCMJ article in the recent edition of The Reporter. Good article, but the withholding memo issued by SecDef a few days before the article's release made it a bit of old news. As we here in the blogging industry know, timing is everything. When BGen Ehrhart presented the article at the ABA conference last Fall, his timing was impeccable. A draft Art. 2 withholding memo was making its rounds in the world and speculation was ripe about the potential final draft. Alas, timing was not on the Gen.'s side.

However, I appreciated BGen Ehrhart's summary of recent MEJA and related cases. It was very informative. I do have to disagree with part of BGen Erhart's conclusion, that application of the UCMJ to civilians serving with or accompanying US armed forces in contingency operations will help keep us from "losing the [peace]" due to a lack of discipline by civilians. I think application of the UCMJ to civilians in times of contingency operations, where US District Court jurisdiction is only a US military transport plane ride away, will only unduly complicate the issue of contractor personnel misconduct with unnecessary constitutional issues. I believe the extension of MEJA, in conjunction with removal provisions in current US government contracts, is the correct course. The sooner DOD, DOJ and the legislative branch agree on all encompassing new legislation, the sooner this issue will be put to rest. BZ to BGen Ehrhart for tackling a tough topic and offering solid recommendations.

SG waives response in Pack

We previously discussed the cert petition in Pack v. United States, No. 07-1176. True to form, the SG has waived the right of the United States to file a response. Now the question becomes whether a Justice will ask the SG to respond.

Tuesday, March 25, 2008

New issue of Military Law Review online

The Winter 2007 issue of the Military Law Review just showed up online here. It includes two articles that will interest military justice mavens:

Major Patrick D. Pflaum, A Matter of Discipline and Security: Prosecuting Serious Criminal Offenses Committed in U.S. Detention Facilities Abroad, 194 Mil. L. Rev. 66 (2007); and

Major Charles A. Kuhfahl Jr., "I Was Only Twelve--It Doesn't Count": Why Adolescent Sex Offenses Are Not Legally Relevant in Prosecutions of Adult Sex Offenders and Why Military Rules of Evidence 413 & 414 Should be Amended Accordingly, 194 Mil. L. Rev. 132 (2007).

Daily journal update for In re Ali

CAAF yesterday gave the government an extra month to respond to what is perhaps the most surprising show cause order it has ever issued. In re Ali, __ M.J. ___, No. 08-8013/NA (C.A.A.F. Mar. 24, 2008) (order). We previously noted the Ali case and linked to the petition for extraordinary relief here.

Brief new CAAF opinion on illegal pretrial confinement

CAAF issued a unanimous opinion by Judge Stucky today in United States v. Harris, __ M.J. ___, No. 07-0508/MC (C.A.A.F. Mar. 25, 2008). Judge Stucky wrote in his customary (and most welcome) BLUF format, so I'll let him deliver the bottom line:
We granted review to consider whether the United States Navy-Marine Corps Court of Criminal Appeals erred by failing to award Appellant sufficient additional pretrial confinement credit for unduly rigorous brig conditions and improper denial of necessary medical care, and whether the relief the court ordered was meaningful. We hold that Appellant failed to meet his burden to establish his entitlement to additional confinement credit, and any meaningful relief would be disproportionate to any harm that Appellant may have suffered.

Id., slip op. at 2.

The most interesting portion of the opinion isn't its synopsis of PFC Harris's litany of complaints about his pretrial confinement. Rather, the most interesting portion deals with the meaningless relief that NMCCA awarded. Judge Stucky explains, "By the time the Court of Criminal Appeals granted him the additional 186 days of credit, Appellant had served the full term of his confinement and been
out of confinement for over two years. There was no pending confinement against which the credits could be applied." Id., slip op. at 8. PFC Harris therefore complained that NMCCA "failed to grant him appropriate relief." Id. CAAF's response is, basically, "tough." CAAF suggests that awarding relief that would be meaningful at this point would "be disproportionate to any harm he may have suffered." Id., slip op. at 9. So it appears that the end result of United States v. Harris is that PFC Harris will receive no compensation for being unlawfully subjected to six months of confinement. Whether legally correct or not, that outcome certainly doesn't seem fair.

Monday, March 24, 2008

To quote Grease, "Tell me more, tell me more"

On Thursday, CAAF told the Navy-Marine Corps Appellate Government Division that, notwithstanding its 10-day letter, the court would like to hear its views on an issued raised in a supplement. United States v. Forney, __ M.J. ___, No. 05-0647/NA (C.A.A.F. Mar. 20, 2008) (order). The issue at issue asks "[w]hether LTJG Forney's Article 133 conviction can stand even though the finding of guilt expressly rested on the unconstitutional definitions in 18 U.S.C. § 2256 and he pleaded not guilty."

CAAF denies writ appeal in capital court-martial case

We previously noted a writ appeal filed in one of the capital courts-martial being tried at Fort Bragg. On Thursday, CAAF denied the writ appeal "without prejudice to Appellant's right to raise the matters asserted during the ordinary course of any future proceeding." Martinez v. Henley, __ M.J. ___, Misc. No. 08-8002/AR (C.A.A.F. Mar. 20, 2008) (summary disposition).

CAAF questions NMCCA's failure to reduce sentence upon reassessment

United States v. Johansson, NMCCA 200401940 (N-M. Ct. Crim. App. May 31, 2007), was a seriously divided decision.

Corporal Johansson was convicted contrary to his pleas and sentenced to seven years, a DD, total forfeitures, and reduction to E-1 for forcible sodomy with a child under the age of 12 and committing an indecent act upon the body of a child under the age of 16. NMCCA reversed the conviction on the forcible sodomy charge but nevertheless affirmed the sentence as adjudged. A two-judge majority held that "we are not convinced beyond a reasonable doubt that the evidence establishes the appellant penetrated the victim's sexual organ." While the court noted that indecent acts with a child under 16 is an LIO of the forcible sodomy offense, Johansson had already been found guilty in the second charge of the non-penetration aspects of that misconduct. Accordingly, the court "set aside the finding of guilt to Charge I and the specification thereunder, and affirm[ed] only the finding of guilt to Charge II and its sole specification."

NMCCA then "reassessed" the sentence:

Applying the analysis set forth in United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006) and United States v. Sales, 22 M.J. 305 (C.M.A. 1988), and after carefully considering the entire record, we are satisfied beyond a reasonable doubt that, even if the appellant had not been convicted of Charge I, the court-martial would not have adjudged a sentence less than that approved by the convening authority in this case.
Yeah, right. Two Navy captains sitting in the Washington Navy Yard in 2007 somehow divined that the officer and enlisted members at Parris Island in 2003 hadn't given Cpl Johannson even a single day's extra confinement because he was found guilty of two offenses rather than one or because they believed that he had penetrated his victim's vagina with his tongue. Such a claim strains credulity.

CAAF was not in a credulous mood on Thursday. In a summary disposition, it reversed NMCCA's affirmance of the sentence and told them to try again. United States v. Johansson, __ M.J. ___, No. 07-0696/MC (C.A.A.F. Mar. 20, 2008) (summary disposition). CAAF ruled:

[I]t is unclear whether the Court of Criminal Appeals considered the dramatic change in the sentencing landscape when it reassessed the sentence. See United States v. Buber, 62 M.J. 476 (C.A.A.F. 2006). Accordingly, said petition is granted on the following issue raised by Appellant:


The decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed as to findings, but reversed as to sentence. The record of trial is returned to the Judge Advocate General of the Navy for remand to the Court of Criminal Appeals. The Court of Criminal Appeals may reassess the sentence based on the affirmed findings of guilty after considering the dramatic change in the sentencing landscape or order a rehearing on sentence. Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2000) shall apply.

CGCCA sets aside guilty plea based on military judge's failure to sufficiently inquire into a potential defense

Friday was a busy day for the Coast Guard Court. In addition to issuing a writ of habeas corpus, discussed below, the Coast Guard Court issued a published opinion setting aside a guilty plea to involuntary manslaughter due to the military judge's failure to sufficiently inquire into a potential self-defense defense. United States v. Yanger, __ M.J. ___, No. 1271 (C.G. Ct. Crim. App. Mar. 21, 2008)

Petty Officer Yanger and his wife were in an argument apparently arising from her displeasure over his crack cocaine use. During the argument, she intentionally broke a crystal glass that she had bought as an anniversary present. The argument escalated when Mrs. Yanger threatened to call her husband's command and inform them of his drug use. He then grabbed and smashed her cell phone, cutting his hand on the broken crystal in the process. The argument continued and Mrs. Yanger "was in EM3 Yanger's face at that point. They argued briefly at a very close distance." After a few seconds, Petty Officer Yanger grabbed his wife's wrists and pushed her away with great force. She fell; the broken crystal jabbed into her neck, and she quickly bled to death.

While the military judge accepted Petty Officer Yanger's plea to involuntary manslaughter, the Coast Guard Court held that he hadn't done enough to explore the potential defense of self-defense. In an opinion by Chief Judge McClellan joined by Judge Felicetti, the majority reasoned:
It might be said by an incurious person that the story according to the stipulation of fact, as amplified by the military judge's questions during the inquiry on it, did not raise the defense of self-defense. But the story did beg the question: why did Appellant shove his wife? Was he escalating the altercation, or was he responding to her? A military judge, in dealing with a guilty plea, cannot be passive or incurious. In this case, the military judge wisely asked the question, and the answer, "I just wanted her out of my face with the glass" (R. at 72), sets off alarm bells. Surely it implied that the glass represented a threat. This implication conflicted with all his answers, both before and after, indicating that he did not feel physically threatened by the glass or otherwise.

We note that the stipulation of fact and the providence inquiry are replete with statements, details, and questions that address the possibility of self-defense. Hence it is clear that the parties and the military judge viewed the issue of self-defense as lingering at the fringes of the case. In this context, it would be surprising if the military judge did not consider that the potential defense of self-defense had been raised, yet he did not follow through as that view would require.

Whether the military judge thought so or not, we find that the defense was raised. He should have explained the defense to Appellant and determined whether Appellant, understanding that potential defense, believed that he had not, in the words of R.C.M. 916(e)(3), "[a]pprehended, upon reasonable grounds, that bodily harm was about to be inflicted wrongfully" on himself.

The court concluded, "[T]he unresolved self-defense issue compels us to set aside the involuntary manslaughter conviction."

Judge Lodge dissented from the reversal of the involuntary manslaughter conviction, arguing that the military judge had sufficiently inquired into a potential self-defense defense and that the providence inquiry and the stipulation of fact "adequately demonstrate that the defense of self-defense, while raised, was not available to Appellant."

Interesting CGCCA writ

The Coast Guard Court on Friday issued an interesting writ of habeas corpus in Ader v. Brooks, Misc. Dkt. No. 003-08 (C.G. Ct. Crim. App. Mar. 21, 2008).

Petty Officer Ader has been confined since 29 August 2007 as a result of a court-martial sentence to confinement for nine months, a BCD, and reduction to E-1. As part of a PTA, the CA agreed to waive automatic forfeitures of $800 per months for 18 months and have that $800 paid to Ader's wife.

The record was docketed with the Coast Guard Court on 4 February. On 10 March, the defense filed a petition for writ of habeas corpus seeking Ader's immediate release because, in violation of the PTA's terms, his wife had received no waived forfeitures.

On Friday, the government rolled over and "concede[d] that Respondents have failed to comply with a material term of the pretrial agreement, which resulted in Petitioner not receiving what he bargained for. Therefore, Respondents concede that Petitioner's pleas were involuntary and concur that he should be immediately released from confinement."

THAT SAME DAY, the Coast Guard Court ordered Petty Officer Ader's immediate release from confinement. The court went ahead and invalidated his findings and sentence for good measure, writing:

Based on Petitioner's unrebutted affidavit and noting Respondents' concession, we find that he did not receive the benefit of his bargain as to a material term of his pretrial agreement. Accordingly, his pleas are improvident. United States v. Perron, 58 M.J. 78, 82 (C.A.A.F. 2003). The findings of guilty and the sentence are set aside, and the case is returned to the Judge Advocate General for referral to an appropriate convening authority, who may order a rehearing.
Petty Officer Ader must not have had much time left on his nine-month sentence, but the case calls to mind that line from Noyd v. Bond where Justice Harlan wrote for the Court: "While it is true that Captain Noyd has only two days yet to serve on his sentence, he should not be required to surrender his freedom for even this short time unless it is found that the law so requires." Noyd v. Bond, 395 U.S. 683, 699 (1969).

A huge BZ to the Coast Guard Court for acting as quickly as possible to safeguard a servicemember's rights.

Navy-Marine Corps Appellate Government seeks reconsideration in Denedo

On Friday, Code 46 submitted a reconsideration petition in Denedo v. United States, 66 M.J. 114 (C.A.A.F. 2008). In case you would like to read it, I've posted the reconsideration petition here.

A government-filed reconsideration petition is the standard first step in beseeching the SG to take a military justice case to the Supremes, so I think it's a safe bet that Code 46 will be advocating a cert petition in Denedo. (Of course, that would have been a safe bet even without the reconsideration petition.)

Notice that at least one claim in the recon petition appears to be legally incorrect. The government writes that "neither Appellate Government Counsel nor the Courts of Criminal Appeals have authority to issue a subpoena." Petition for Reconsideration at 22. CAAF disagrees. CAAF has observed, albeit in dicta, that the Courts of Criminal Appeals are empowered to "issue[] a subpoena." United States v. Lewis, 42 M.J. 1, 5 (C.A.A.F. 1995). In support of that proposition, CAAF cited Article 47(a)(1), which provides that individuals not subject to the UCMJ may be subpoenaed "to appear as a witness before a court-martial, military commission, court of inquiry, or any other military court or board."

Much to discuss

A lot happened on Friday that I didn't learn about until today. Included in this evening's posts will be news of a reconsideration petition in Denedo, a writ issued by the Coast Guard Court, and a published opinion from the Coast Guard Court. We'll also reach back to last Thursday to look at some CAAF daily journal entries that were posted online today.

Sunday, March 23, 2008

Trial defense counsel -- don't throw out your 2005 MCMs

As we note below, hard copies of the 2008 MCM are supposedly now available. But trial defense counsel, please hang onto your 2005 MCM for ready access to the old R.C.M. 912(f)(4).

I have previously decried the 2005 MCM amendments' gutting of the accused's right to a peremptory challenge and the cynical, legally flawed accompanying drafters' analysis.

As the Kabul Klipper has previously argued, and as we previously discussed here, the new rule that peremptorily challenging a member against whom the military judge erroneously denied a challenge for cause waives the military judge's error violates the accused's statutory right to a peremptory challenge under Article 41(b)(1).

So, TDCs, whenever that scenario occurs in your cases, you must do two things. First, argue to the military judge that he or she must allow you another peremptory challenge due to his or her erroneous ruling on the challenge for cause. Second, assuming that you would, in fact, have peremptorily bounced another member but for the military judge denying the causal challenge, whip out your copy of the 2005 MCM and read from R.C.M. 912(f)(4): "[The defense] would have exercised its peremptory challenge against another member if the challenge for cause had been granted." (Under the old R.C.M. 912(f)(4), I've seen military judges ask the TDC which member the defense would have challenged, so be prepared to answer that question.) That should preserve the issue so that your client's appellate defense counsel can attempt to reverse the findings and sentence (or, if a guilty plea, the sentence) by arguing that a Manual provision can't trump a statute and that the 2005 R.C.M. 912 revisions violate Article 36 because they are inconsistent with Article 41(b)(1). And please, please, please do this in an Air Force case soon so that I can try to beat the other services in getting this issue to CAAF.

2008 MCM available from GPO bookstore

Here's a link to the GPO Bookstore's order page for the 2008 MCM. The price is $62. The estimated delivery date is 9 March 2008. Does anyone have a hard copy yet?

Saturday, March 22, 2008

NIMJ is hiring two full-time employees

For those interested, see the second item in the NIMJ NEWS section of NIMJ's web site.

Thursday, March 20, 2008

Interesting denial of extraordinary relief

Today's daily journal update includes an interesting order denying a writ appeal. Lis v. United States, __ M.J. ___, Misc. No. 08-8007/AR (C.A.A.F. Mar. 19, 2008). Lis (rank unknown -- as usual I can't find any electronic trace of ACCA's consideration of the case) is facing preferred charges arising from his alleged desertion with intent to shirk important service. Lis "claims that he is not a member of the armed forces and is therefore not subject to the jurisdiction of a court-martial." Accordingly, he sought a writ of habeas corpus from CAAF ordering the government to "release him from military custody and control." Presumably we all agree that such an order is beyond CAAF's power, but presumably we also agree that CAAF had jurisdiction, had it so chosen, to order charges against him dismissed for lack of jurisdiction. (The case hasn't yet gone to an Article 32, but the preferral of charges would bring the case within CAAF's potential appellate jurisdiction.)

While expressing no doubt about its jurisdiction over the case, CAAF decides not to exercise it:

[I]t appears that there are significant disputed questions of fact with respect to the Appellant's military status. On this record, the Appellant has not met the significant burden to obtain extraordinary relief from this Court during the normal processes of trial and appeal. The necessary processes exist in the Article 32, UCMJ, investigation and the trial, if charges are referred to trial by court-martial, for the resolution of these factual disputes. The ordinary processes of justice should be allowed to take their course.

New issue of The Reporter published

The Winter 2007-2008 issue of The Reporter is available here. The issue includes three articles of interest to military justice practitioners. One is about trying civilian contractors. Brigadier General David G. Ehrhart, Closing the Gap: The Continuing Search for Accountability of Civilians Accompanying the Force, The Reporter, Winter 2007-2008, at 9. I'll let the No Man write about that one.

The second is a synopsis of the major changes included in the 21 December 2007 revision of AFI 51-201, which is the Air Force's equivalent of the JAGMAN or AR 27-10. Military Justice Pointers: Major Revisions to AFI 51-201, Administration of Military Justice, The Reporter, Winter 2007-2008, at 21.

Finally, Judges Hartsell and Watson, whose Air Force Law Review piece on charging "divers occasions" we recently noted, are back in the saddle again with their article, When Lies Have Value: The Admissibility of Uncharged False Exculpatory Statements in Pre-Sentencing, The Reporter, Winter 2007-2008, at 33. The article discusses how TCs can use an accused's lies during interrogation against the accused in sentencing and warns DCs about how to avoid opening the door to such uses.

Tuesday, March 18, 2008

Cossio apparently unpublished

We previously noted that the Air Force Court's Cossio opinion is located in LEXIS's file for published CCA opinions. See United States v. Cossio, No. ACM 36206 (pet), 2008 CCA LEXIS 70 (A.F. Ct. Crim. App. Feb. 15, 2008) (per curiam). But this Air Force Court web page lists it as an unpublished opinion.

New military cert petition

Be vigilant, Kabul Klipper, LCDR Brian Mizer is trying to rustle your Golden CAAF.

LCDR Mizer is counsel of record in the recently filed cert petition in Pack v. United States, No. 07-1176. The petition seeks review of CAAF's opinion in United States v. Pack, 65 M.J. 381 (C.A.A.F. 2007).

Here's the QP:
Whether this Court should decide the unsettled question of federal law presented to the Court of Appeals for the Armed Forces in the case at bar; namely, if Crawford v. Washington, 541 U.S. 36 (2004) implicitly overruled Maryland v. Craig, 497 U.S. 836 (1990) and made it violative of an accused’s Sixth Amendment right to confrontation when an accused does not meet his accuser face-to-face at trial.

Air Force Law Review Is Available On-line

We contacted the editorial staff of the Air Force Law Review, or as they like to refer to themselves the Professional Outreach Division, and they graciously provided us with an updated link to the Air Force Law Review. Volume 61 contains two articles previously mentioned by CAAFog, Lt Col John E. Hartsell & Maj Bryan D. Watson, The Decay of "Divers" and the Future of charging "Under Divers Occasions" in Light of United States v. Walters, 61 A.F. L. Rev. 185 (2008) and MAJ Terri J. Erisman, Defining the Obvious: Addressing the Use and Scope of Plain Error, 61 A.F. L. Rev. 41 (2008). Volume 61 is now available here. Back issues of the AFLR are available here, and we updated the link to the right. The editorial staff passed along this helpful piece of information:
Maj Kyle Green will soon be the Chief of the Professional Outreach Division. He's currently the editor of the Air Force Law Review and will be a good contact if your readers are interested in publishing articles, etc.

The website has a contact link for the Maj (now LtCol) Bradley Mitchell (don't call him LtCol Bradley like I did). I haven't included a link to Maj Green's email because I was not sure if Maj Green wants his email available to all of CAAFlog's readers, both of you probably have it anyway. Happy reading!

CAAF affirms AFCCA in Perez

CAAF today released a 356-word per curiam opinion upholding the Air Force Court in United States v. Perez, __ M.J. ___, No. 08-5002 (C.A.A.F. Mar. 18, 2008) (per curiam). Senior Airman Perez had prevailed at the Air Force Court and the Judge Advocate General certified the case to CAAF.

Judge Stucky wrote a separate concurrence that might as well have been labeled a "dubitante." He wrote that the lower court acted properly under the existing case law, but suggested that the existing case law is wrong.

The majority holds flatly that "[t]he action taken on appellate review in this case was within the power granted to the Court of Criminal Appeals by Article 66(c), UCMJ." Id., slip op. at 3. To understand what is really going on, one must read the Air Force Court's unpublished opinion in the case, which is available here.

We previously provided this synopsis of the Air Force Court's Perez opinion:

Senior Airman Perez was found guilty of rape, disobeying an order, and assault consummated by a battery. The military judge sentenced him to confinement for 18 months, a BCD, and reduction to E-1. After trial, the SJA's office discovered that the alleged rape victim had recanted. The CA ordered a post-trial Article 39(a) session. The military judge then found that credible evidence existed that the alleged victim had recanted and that that new evidence warranted a new trial. He also stated that had he been aware of the new evidence, he would not have convicted Perez of rape and that he would have imposed a sentence of only confinement for six months, reduction in grade, and total forfeitures for the remaining offenses.

Rather than order a new trial, the convening authority disapproved the finding of guilty to the rape offense. At the SJA's advice, the CA approved a sentence of a BCD, confinement for 206 days, and reduction to E-1. (Note that the MJ had said his sentence for the remaining offenses would not have included a punitive discharge.)

The issue before the Air Force Court was whether this action by the convening authority was an unreviewable exercise of clemency or a legal matter that could be subjected to the equivalent of a Sales/Peoples analysis. The Air Force Court concluded that it was the latter. The court reasoned:

In this case, although there was no error at the time of trial, thereafter new evidence was discovered. This evidence met the criteria, under R.C.M. 1210, for a new trial. Rather than ordering a rehearing on findings and sentencing or sentencing only, the convening authority decided to take other corrective action designed solely to provide an expeditious means to correct the error. See R.C.M. 1107(c)(2)(A), Discussion. In the case sub judice, the actions of the convening authority amount to corrective action based upon errors (new evidence) rather than action in the form of clemency.

The court then ruled that the CA erred in his reassessment when he approved a sentence greater than that which the MJ would have adjudged. The court reasoned:

The convening authority had the benefit of knowing exactly what the sentencing authority would have done, but he reassessed a sentence greater than that which the sentencing authority would have imposed absent the error (new evidence). Under the unique circumstances of this case, the correct standard would have been to order a sentence rehearing or apply the above referenced standard for sentence reassessment.

That was the opinion that CAAF has now held to be "within the power granted to the Court of Criminal Appeals by Article 66(c), UCMJ." Perez, slip op. at 3.

In a separate opinion concurring in the result, Judge Stucky writes that the Air Force Court's action was within the authority recognized by existing CMA/CAAF precedent, but suggests that such precedent improperly constrains what Congress intended to be the CA's unlimited discretion.

Judge Stucky observes:

In United States v. Reed, 33 M.J. 98 (C.M.A. 1991), this Court noted that a convening authority is not required to correct legal errors, but "it is entirely appropriate and certainly commendable for a convening authority in his discretion to undertake curing such an error before the case reaches appellate levels." Id. at 99. But "[w]here he does so, his action must be guided by the same rules applicable to appellate authorities." Id. The accused must be "'placed in the position he would have occupied if an error had not occurred.'" Id. at 99-100 (quoting United States v. Hill, 27 M.J. 293, 296 (C.M.A. 1988)). In other words, the convening authority must either approve a sentence no greater than the sentencing authority would have adjudged absent the error or order a sentence rehearing. See id. (citing United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986); United States v. Suzuki, 20 M.J. 248, 249 (C.M.A. 1985)).

But Judge Stucky expresses "serious doubt as to whether this holding can be squared with the plain language of Article 60, UCMJ, or the traditional understanding of the convening authority's powers."

Something must have gone horribly wrong. This post now has more than twice as many words as the majority's per curiam opinion.

Monday, March 17, 2008

Supremes to take their shot at Harcrow issue

SCOTUSblog (a.k.a., the greatest blog on earth) has this synopsis of Melendez-Diaz v. Massachusetts, 07-591, in which the Supremes granted cert today on an issue similar to that decided by CAAF in Harcrow:

In a significant new case on the Confrontation Clause, the Court said it would consider the constitutionality of prosecutors' offering a crime lab report as evidence in a criminal trial, instead of the live testimony of the expert who prepared the report. (Melendez-Diaz v. Massachusetts, 07-591). The case involves Luis E. Melendez-Diaz, charged with cocaine trafficking in the Dorchester section of Boston. At his trial, prosecutors offered crime lab reports about substances taken from one of the men arrested in the incident. The appeal says that 44 states and Washington, D.C., now permit courts to admit forensic chemists' reports to establish that seized substances are illegal drugs, even when the chemists themselves are not called to testify. The Supreme Court had previously passed up review of several other cases raising the Confrontation Clause issue regarding crime lab reports.

Due to Harcrow's posture -- ruling for the defense on the substantive issue but then denying relief under the harmless error doctrine -- neither party can get Harcrow up to the Supremes as a Melendez-Diaz trailer. But obviously whatever case law the Supremes make will supplant (possibly while ratifying) Harcrow's Crawford analysis.

Here's a link to the Melendez-Diaz cert petition, courtesy of SCOTUSblog. Here's the QP:

Whether a state forensic analyst's laboratory report prepared for use in a criminal prosecution is "testimonial" evidence subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington, 541 U.S. 36 (2004).
We discussed Harcrow here.

New Air Force Law Review issue

Volume 61 of the Air Force Law Review has been electronically published within the Air Force community, though the AFJAGS web site doesn't even yet post Volume 60.

When Volume 61 becomes generally available, military justice practitioners will find two articles of interest. One is a short piece by two military judges discussing United States v. Walters, 58 M.J. 391 (2003), and its progeny. Lt Col John E. Hartsell & Maj Bryan D. Watson, The Decay of "Divers" and the Future of Charging "Under Divers Occasions" in Light of United States v. Walters, 61 A.F. L. Rev. 185 (2008). The judges recommend that trial counsel avoid Walters problems at the charging stage by using mega-specs rather than alleging "divers occasions." Id. at 193.

The other article of interest is a longer piece arguing that military appellate courts too frequently find plain error. MAJ Terri J. Erisman, Defining the Obvious: Addressing the Use and Scope of Plain Error, 61 A.F. L. Rev. 41 (2008). She concludes, "The doctrine of plain error was intended to be an extraordinary remedy to prevent miscarriages of justice. However, the current application of the doctrine in the military has transformed it into an empty principle requiring no more in depth review than an error that was vigorously objected to at trial." Id. at 77. She proposes a new R.C.M. governing plain error, which would provide:

A finding or sentence may not be held incorrect on the basis of an error that was not objected to at trial unless an accused establishes that:
(1) the error constitutes "plain error;" and
(2) the error seriously affected the fairness, integrity, or public reputation of judicial proceedings.


Friday, March 14, 2008

New published NMCCA decision

Here's a link to United States v. Bush, __ M.J. ___, No. NMCCA 200700137 (N-M. Ct. Crim. App. Mar. 11, 2008). Senior Judge Geiser writes for a unanimous panel.

As the first line below the caption indicates, PFC Bush was sentenced on 5 January 2000. NMCCA decided his case on 11 March 2008. The bulk of the delay occurred between 16 November 2000, when the CA acted on the case, and 13 February 2007, when it was originally docketed with NMCCA. (NMCCA then sent it back to correct a post-trial processing error.) NMCCA concludes both that PFC Bush's due process right to speedy appellate processing was violated and that he was prejudiced as a result.

An affidavit from the Pendleton review officer indicated that the record was mailed to NMCCA in February 2001. But it was never received. NMCCA blamed Pendleton for this disconnect: "there is no evidence the CA expended any effort in [the six years after it was mailed] to ensure the record was properly received by this court. Rudimentary tracking and receipt confirmation procedures by the mailing command might have shortened the delay considerably." Bush, slip op. at 3.

In counterpoint to CAAF's opinion in United States v. Allende, __ M.J. ___, No. 06-0908/NA (C.A.A.F. Mar. 12, 2008), which was published a day after NMCCA issued Bush, NMCCA follows this rule: "In evaluating whether the appellant has sufficiently met his burden of proof, we will accept the appellant's post-trial affidavit as true." Bush, slip op. at 3 (quoting United States v. Scalarone, 52 M.J. 539, 544 (N-M. Ct. Crim. App. 1999), aff'd, 54 M.J. 114 (C.A.A.F. 2000)). NMCCA thus accepts PFC Bush's statement in his declaration that "he repeatedly contacted both his command and the Navy-Marine Corps Appellate Leave Activity (NAMALA), inquiring about the instant case" because "he needed his DD Form 214 to maintain his employment." Bush, slip op. at 3.

PFC Bush also alleged that "he was denied employment by the Costco store in Huntsville, Alabama, three to four years after his trial, specifically because he lacked his final discharge papers (DD Form 214)." Bush, slip op. at 4. NMCCA favorably observed that PFC Bush "indentified a specific store in a specific town during a specific timeframe" and "specifically asserts the reason he was denied employment was directly tied to dilatory post-trial processing of his court-martial." Id. NMCCA finds "this was 'adequate detail' to permit the Government to inquire further in order to verify or dispute the appellant's assertions." Id. Because the government failed to refute PFC Bush's allegations, NMCCA found that he had established prejudice.

This might have set up a conflict with Allende. NMCCA appears to attempt to insulate its prejudice ruling from further review by holding that even if PFC Bush hadn't shown prejudice, "a delay of over seven years to finally docket this 143-page guilty plea record of trial is egregious and, even in the absence of specific prejudice, constitutes a due process violation." Bush, slip op. at 5. The very next sentence in the opinion, however, seems somewhat inconsistent with that otherwise clear statement: "The Government's inadequate explanation for the delay and its failure to seek evidence to verify or refute the appellant's claims weighs [sic] heavily in this regard." Id. But "appellant's claims" were that he complained to his command and NAMALA about the appellate delay and that he wasn't hired by Costco as a result of the delay. Why would the government's failure to refute the latter claim weigh against the government at all, much less heavily, "even in the absence of specific prejudice"?

Then, in assessing whether the error was harmless beyond a reasonable doubt, NMCCA again finds "that the appellant suffered employment prejudice." Id. And NMCCA then again thwacks the government for failing "to undertake any efforts to verify or refute the appellant's assertions concerning his attempted contact with his command and NAMALA or his employment difficulties." Id. And then in fashioning a remedy, NMCCA again emphasizes that the "lax post-trial processing . . . resulted in prejudice to appellant's employment opportunities." Bush, slip op. at 5-6.

NMCCA then drastically reduces the sentence from a DD, confinement for six years, total forfeitures, and reduction to E-1 to a BCD. How much money that will net PFC Bush I have no idea. But the answer may be: zero.

The opinion is an analytic mess. And its reasoning is undercut by CAAF's Allende opinion, which was released the following day. Petty Officer Allende's case languished for seven years between sentence and NMCCA's decision. He, too, alleged interference with employment opportunities due to his lack of a DD 214, though it appears that Petty Officer Allende was less specific than was PFC Bush. CAAF appeared to rule unanimously that an affidavit or declaration from an appellant was insufficient proof of interference with post-trial employment opportunities:

According to Appellant, a number of potential civilian employers were unwilling to consider him because he could not provide them with a DD-214. Appellant’s affidavit asserts that four employers declined to consider him for employment in the period of August-October 2000, approximately a year after his trial was completed, and that two employers declined to consider him for employment for that reason in 2007. Appellant has not provided documentation from potential employers regarding their employment practices, nor has he otherwise demonstrated a valid reason for failing to do so. Compare United States v. Jones, 61 M.J. 80, 84-85 (C.A.A.F. 2005) (relying upon affidavits from a prospective employer to confirm that the lack of a DD-214 caused the employer to deny his application for employment.) In that context, we conclude that the assumed error was harmless beyond a reasonable doubt and note that Appellant has failed to present any substantiated evidence to the contrary.

Allende, slip op. at 10.

In light of Allende, it seems likely that Code 46 will seek reconsideration of Bush or possibly even seek JAG certification to avoid the possibility that upon reconsideration NMCCA might clean up the parts of its opinion that rely heavily on facts that NMCCA said were unnecessary to its ruling, thereby insulating the opinion from further review. If the case does make it up to CAAF, then CAAF will have the opportunity to clarify whether failure to provide extrinsic evidence of interference with employment opportunities -- or, alternatively, to demonstrate good cause for failing to make such a showing -- is always fatal to a claim of interference with employment opportunities.

Two related pretrial confinement credit grants

Yesterday's daily journal includes grants of two interesting Army pretrial confinement credit issues:

No. 07-0826/AR. U.S. v. Bennie B. GOGUE. CCA 20050650. Review granted on the following issue raised by the Appellant:


and the following issue specified by the Court:


No. 07-0856/AR. U.S. v. Dustin A. OWENS. CCA 20070264. Review granted on the following issue specified by the Court:


Neither case appears on ACCA's web site or on LEXIS -- it appears that ACCA reviews a huge number of cases, including many with issues that CAAF finds interesting, with just a short-form affirmance.

Here's the text of 18 U.S.C. § 3585(b):

(b) Credit for prior custody. A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences--
(1) as a result of the offense for which the sentence was imposed; or
(2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed;

that has not been credited against another sentence.

One of the most intriguing daily journal entries ever -- UPDATED

Can anyone shed additional light on this Miscellaneous Docket Filing from yesterday's daily journal?

Misc. No. 08-8013/NA. In Re Ali (a.k.a. Anwar Hassan), Thabid (a.k.a. Dawut Abdurehim), Adel Noori, Abdulghappar Abdulrahman, Ahmad Tourson, and Abdul Razakah, Presumptive Prisoners of War, Guantanamo Bay Detainees, Petitioners v. United States, Respondent. Notice is hereby given that a petition for extraordinary relief in the nature of a writ of prohibition and writ of mandamus was filed under Rule 27(a) on February 27, 2008, and placed on the docket this date. On consideration thereof, it is ordered that the United States is substituted as Respondent; that the Judge Advocate General of the Navy appoint counsel to represent Respondent; and that Respondent show cause on or before March 24, 2008, why the requested relief should not be granted.

Here's a link to the petition, courtesty of NIMJ's web site.

Thursday, March 13, 2008

Hard cases may make bad law, but the Harcrow case makes important law

Harcrow is an uncommonly interesting opinion.

The central question in the case is whether a state crime lab report prepared at the behest of law enforcement officers concerning a particular identified criminal suspect are testimonial for Crawford purposes. A majority of Judge Erdmann, Chief Judge Effron and Judge Ryan says yes. Judge Stucky, joined by Judge Baker, suggests the answer isn't clear -- or at least wasn't before the majority's opinion, thus precluding the military judge's admission of the evidence without objection from being considered plain error.

The majority and the separate concurrence agree that plain error is to be measured at the time of appeal, not the time of trial. And Judge Ryan writes a thoughtful concurrence to observe, in part, that applying this rule piles legal fiction upon legal fiction to hold that a military judge erred by failing to follow case law that didn't yet exist when, in reality, the MJ likely would have applied the correct case law and the government would have abided by that case law. (She also observes that documents prepared in anticipation of litigation don't qualify as business records and that because the lab report at issue appears to have been prepared in anticipation of litigation, it might not have been admissible in the pre-Crawford world either.)

The principal point of distinction between the majority and the concurrence is what precisely was the state of law before Harcrow itself. According to Judge Stucky, at the time of trial a lab report was plainly admissible without Confrontation Clause difficulties under the well-established business record hearsay exception. Crawford threw that clear state of the law into confusion, but a confused state of the law cannot give rise to plain error, since the governing legal rule wasn't plain at all.

The majority, on the other hand, finds the requisite clarity in CAAF's Magyari opinion, which held that a run-of-the-mill urinalysis lab package wasn't testimonial. See United States v. Magyari, 63 M.J. 123 (C.A.A.F. 2006). In Magyari, CAAF had indicated that lab reports wouldn't always be admissible without Confrontation Clause implications. Judge Erdmann's majority opinion explains:
Our reasoning in Magyari that "[b]ecause the lab technicians were merely cataloging the results of routine tests, the technicians could not reasonably expect their data entries would 'bear testimony' against [a]ppellant at his court-martial" does not apply here. Here the laboratory tests were specifically requested by law enforcement and the information relayed on the laboratory reports pertained to items seized during the arrest of an identified "suspect."

United States v. Harcrow, __ M.J. ___, No. 07-0135/MC, slip op. at 13(C.A.A.F. Mar. 13, 2008) (internal citation omitted).

Judge Stucky counters that CAAF dicta isn't sufficient to establish the requisite clarity to result in an error being plain.

In the end, though, none of this helps LCpl Harcrow himself, since CAAF holds that his confession was the principal evidence against him and it was sufficiently corroborated even without the lab report. Thus, the majority concludes that the confrontation error was harmless beyond a reasonable doubt.

So Harcrow is extremely important in holding that lab reports prepared at the behest of law enforcement agents looking for evidence against an identified suspect are testimonial. The dispute over whether this particular error was plain is not terribly significant, since it will be unlikely to apply to any post-Crawford cases--cases in which, presumably, all of the trial participants would be attuned to the importance of a lab report's testimonial status and in which the defense should have preserved a Crawford issue.

But there is one additional fascinating aspect of Judge Erdmann's majority opinion. He begins with a lengthy discussion of forfeiture vs. waiver, which includes a helpful discussion of United States v. Olano, 507 U.S. 725 (1993). This discussion is instrumental in getting to the plain error analysis issue in the case. I expect to see this discussion cited in many briefs and many opinions to come.

CAAF addresses another Crawford issue in Harcrow

Here's a link to today's CAAF opinion du jour: United States v. Harcrow, __ M.J. ___, No. 07-0135/MC (C.A.A.F. Mar. 13, 2008).

Here is Judge Erdmann's synopsis of his majority opinion:

We granted review of this case to consider whether the lower court erred by finding that the state forensic laboratory reports were nontestimonial hearsay under Crawford. 65 M.J. 284 (C.A.A.F. 2007). We hold that the laboratory reports in this case were testimonial evidence. Applying a plain error analysis, we conclude that the error was plain and obvious but the admission of this evidence was harmless beyond a reasonable doubt and therefore did not violate a substantial right. See Article 59(a), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 859(a) (2000); United States v. Brewster, 61 M.J. 425, 432 (C.A.A.F. 2005). Accordingly, we affirm the findings of guilty and the sentence as set out in the decision of the Court of Criminal Appeals.

Wednesday, March 12, 2008

United States v. Allende: substitute authentication and appellate delay

In United States v. Allende, __ M.J. ___, No. 06-0908/NA (C.A.A.F. Mar. 12, 2008), CAAF resolves one remarkably narrow issue and then distinguishes one of its previous cases in a potentially significant manner. In Allende, Chief Judge Effron wrote for a unanimous court.

First the narrow issue. The TC in Allende authenticated the record "because of [the] absence of the military judge." On appeal, the defense maintained that was an insufficient justification for substitute authentication. NMCCA agreed but held the error was harmless because: "(1) the record was substantially verbatim; (2) Appellant's counsel received an opportunity to comment on any corrections prior to authentication; (3) Appellant did not raise any legal issues concerning the record's accuracy prior to the convening authority's action; and (4) Appellant did not allege on appeal that the record was inaccurate." Id., slip op. at 7.

CAAF held that NMCCA, having found the record substantially verbatim, did not err in holding that the erroneous authentication of the ROT by the TC did not materially prejudice Petty Officer Allende.

The second issue in the case involved appellate delay. Seven years elapsed between the trial and NMCCA's affirmance. Petty Officer Allende maintained that he had been denied employment due to his lack of a DD-214 during this period. But he presented no information from potential employers to verify his claim. This lack of corroboration proved fatal. CAAF dropped a "compare" cite to United States v. Jones, 61 M.J. 80, 84-85 (C.A.A.F. 2005), which it described as "relying upon affidavits from a prospective employer to confirm that the lack of a DD-214 caused the employer to deny his application for employment." Id., slip op. at 10.

The lesson is clear. When making an appellate delay claim based on interference with post-trial employment opportunities, no corroborating evidence from the employer equals no prejudice.

United States v. Nieto: punting on the propriety of hypothetical voir dire questions

In United States v. Nieto, __ M.J. ___, No. 07-0495/MC (C.A.A.F. Mar. 12, 2008), Chief Judge Effrom writes for a majority consisting of himself, Judge Stucky and Judge Ryan. Judge Stucky also wrote a concurring opinion. Judge Baker, joined by Judge Erdmann, concurred separately in the result.

As Chief Judge Effron's majority opinion explains, "Before this Court, Appellant contends that the prosecution improperly sought to obtain from the panel members a commitment to convict Appellant based upon a hypothetical set of facts, that the commitment questions violated his right to be tried by an impartial panel, and that the military judge erred by permitting these questions." Id., slip op. at 10. There was no objection at trial, so the issue was reviewed under a plain error standard.

The majority observed that "[a]lthough this Court has addressed challenges for cause based upon answers provided by prospective members to hypothetical questions during voir dire, we have not heretofore addressed the scope of permissible questioning in this regard." Id., slip op. at 11 (internal citation omitted). CAAF declined to fill that vacuum in the Nieto case, basically punting until a better developed record comes along. CAAF did, however, cite some federal and state case law on the subject, perhaps trying to nudge the issue along a bit by providing some cites for trial-level counsel's use in litigating the issue. See id.

In his concurrence, Judge Stucky foreshadowed how he will vote when such a well developed issue comes along: "While I agree with the majority's disposition of the case, I write separately to emphasize that actions like those of the trial counsel are disfavored, if not necessarily outright error." While Judge Stucky observes that "I would find error in this case, I agree with the majority that the error is not plain or obvious."

In his separate concurring opinion, Judge Baker suggests that the voir dire questions at issue were likely improper in light of the evidence that was ultimately introduced. But at the time of voir dire, the military judge wouldn't have known how the questions fit in with the prosecution's theory of the case. The defense, on the other hand, should have understood this -- it was, therefore, the defense's duty to object. There was no plain error in the military judge failing to act on the basis of information he didn't yet possess.

Two new CAAF opinions

United States v. Allende, 06-0908/NA (C.A.A.F. Mar. 12, 2008), and United States v. Nieto, 07-0495/MC (C.A.A.F. Mar. 12, 2008).

SecDef Art. 2(a)(10) Withholding memo

Secretary of Defense Gates signed the much awaited memo withholding certain aspects of authority to exercise UCMJ jurisdiction over civilians serving with or accompanying US military forces, available at here. I think the memo is a balanced exercise of the jurisdictional grant that was dumped in DoD's lap by Reserve Judge Advocate Senator Lindsay Graham in late 2006.

Authority to assert UCMJ jurisdiction over subject civilians INCONUS (or acts that occurred INCONUS) is reserved to SecDef. Alleged illegal acts occurring OCONUS may only be acted upon by combatant commanders and their reporting GCMCAs. Other prudent limitations, including DoJ's right to short circuit prosecutions by informing DoD that it will exercise MEJA or any other jurisdiction over the case, are included in three attachments. Comment away because I need to catch a flight---so pardon any typos. So long from the Big Easy.

UPDATED: It was 2:15 EST so I went through security an hour early for my flight, so much for that GPS function. I've noticed some trouble with the link to the memo, appears the file size is too large. Trying to correct, but the Big Easy Int'l Airport web access is spotty. I'll try to upload a smaller file tomorrow.

UPDATE #2: Done. Finally got better service. the link should work now, try here too.

CAAF supports motherhood revisited

We previously discussed a motion filed by my Air Force Appellate Defense Division colleague Capt Tiaundra Sorrell to move up her oral argument in United States v. Perez because the original Perez oral argument date -- today -- was two days after her baby's due date. After CAAF granted that motion and moved the Perez argument date to 5 February, the Government sought reconsideration, maintaining that there was no medical reason the argument couldn't proceed as scheduled. CAAF ultimately accepted the Government's fall-back position and moved the argument back a day to 6 February.

It turns out that CAAF was wise in its approach. Had the argument proceeded today as originally scheduled, the discussion would likely have been interrupted by the crying of Capt Sorrell's four-day-old son. At last report, all were doing well.

Tuesday, March 11, 2008

Denedo v. United States is up on CAAF's web site

Here's a link. I have to run to a ballgame in about two minutes. I'll write more tonight in the unlikely event that no one has dissected it by then.

Sunday, March 09, 2008

Lopez de Victoria SitRep?

I couldn't come to the Sunshine State without seeking an audience with the Kabul Klipper, which he graciously granted to me and from which I have just returned.

We canvassed all things military justice (while I cursed the results in the ACC women's basketball tournament today), so of course the topic of Lopez de Victoria arose.

That reminded me that I'd heard some scuttlebutt that Army GAD planned to seek reconsideration in Lopez de Victoria, which would likely be a precursor to asking the SG to petition for cert. I believe that yesterday was GAD's deadline for seeking recon in Lopez de Victoria. Does anyone know whether they did so?

Saturday, March 08, 2008

News flash: Joint Services Committee says that 2008 MCM to be published this month

NIMJ's web site has posted the briefing given by Joint Services Committee spokesperson Lt Col Tom Wand, USAF, at last Tuesday's Joint Services Committee. As soon as I figure out how to do it on this computer, I'll post a link here.

The briefing said that bound volumes of the corrected version of the 2008 MCM are "to be published this month."

In other news sure to warm the No Man's heart, the briefing said that among the JSC's current projects is drafting MCM amendments to address the expansion of court-martial jurisdiction effectuated by UCMJ article 2(a)(10).

Friday, March 07, 2008

Washington Times op-ed

NIMJ's web site has a link to this op-ed from yesterday's Washington Times arguing that the military justice system is treating servicemembers accused of killing Iraqis unfairly.

We have previously noted the evolving narrative that the military justice system takes care of its own and devalues the lives of Iraqi victims. This piece by radio host Rick Amato presents a counter-narrative.

One particularly clumsy part of the op-ed did make me laugh. When I became a Marine Corps judge advocate, the Harvard Law educated Brigadier General David Brahms was the Staff Judge Advocate to the Commandant. In an apparent attempt to build General Brahms' credibility, Amato refers to him as "retired Brig. Gen. David Brahms, a military defense lawyer who served as technical consultant to the movie 'A Few Good Men.'" What does it say about America's over-infatuation with celebrity that being a consultant for "A Few Good Men" was considered more important than all of General Brahms' other impressive attributes?

To quote Jack Norworth and Albert Von Tilzer, take me out to the ball game

At a ridiculously early hour tomorrow morning, I'm off to Florida. My itinerary there will include a Nats spring training game.

I'll be back Friday night. In the meantime, I should have occasional computer access, so I'll try to stay in touch. But just in case Manny Acta has a hole in his lineup and decides that I'm the right slow right handed hitter to fill it, I hope my CAAFlog colleagues will step up to the plate while I'm gone.

Revisiting Cabrera-Frattini

As Anonymous #4 observed in commenting on United States v. Cabrera-Frattini, __ M.J. ___, No. NMCCA 200201665 (N-M. Ct. Crim. App. Feb. 28, 2008), one significant aspect of the case may be publicizing the potential use of depositions for purposes other than testimony preservation.

The deposition is one of the most common and important discovery tools in civil litigation. It would be rare for an important witness in a federal civil trial to testify without already having been examined under oath by the opposing party's counsel. Knowing what the witness previously said under oath allows the cross-examining counsel to highlight any changes in the witness's direct examination testimony. It is also invaluable to counsel who heed the lesson that Atticus Finch drilled into his daughter Scout: "Never, never, never, on cross-examination ask a witness a question you don't already know the answer to, was a tenet I absorbed with my baby-food." Harper Lee, To Kill a Mockingbird 179 (Popular Library 1962) (1960).

But depositions are used rarely in civilian or military criminal litigation, where their primary function is to preserve the testimony of a witness who will be unavailable at the time of trial -– the deposition de bene esse. The Manual for Courts-Martial reflects this traditional view of depositions in criminal cases. R.C.M. 702(a) provides, "A deposition may be ordered whenever, after preferral of charges, due to exceptional circumstances of the case it is in the interest of justice that the testimony of a prospective witness be taken and preserved for use at an investigation under Article 32 or a court-martial." The Manual's drafters explain:

"Exceptional" means out of the ordinary. Depositions are not taken routinely, but only when there is a specific need under the circumstances. As used in Fed. R. Crim. P. 15(a) "exceptional circumstances" is generally limited to preserving the testimony of a witness who is likely to be unavailable for trial. A deposition is not a discovery device under the Federal rule. The Court of Military Appeals has held that depositions may serve as a discovery device in certain unusual circumstances. [See, e.g., United States v. Killebrew, 9 M.J. 154 (C.M.A. 1980).] Consequently, "exceptional circumstances" may be somewhat broader in courts-martial. Nevertheless, the primary purpose of this rule is to preserve the testimony of unavailable witnesses for use at trial.

Manual for Courts-Martial, United States, R.C.M. 702(a) drafters' analysis at A21-35(2008 ed.) (internal citations omitted).

But both the drafters' analysis and R.C.M. 702 itself adopt an impermissibly narrow view of depositions' use in court-martial practice. Article 49 of the Uniform Code of Military Justice, which adopts a far more liberal standard for depositions, trumps them both.

Article 49 provides, in part, that "any time" after charges have been preferred, "any party may take oral or written depositions unless the military judge or court-martial without a military judge hearing the case or, if the case is not being heard, [the convening authority] forbids it for good cause." UCMJ art. 49(a), 10 U.S.C. § 849(a) (2000). Article 49 establishes a clear default position: a deposition is presumptively permissible unless there is good cause to forbid it. R.C.M. 702, however, impermissibly flips that presumption by providing that a military judge (or convening authority pre-referral) should not authorize a deposition absent exceptional circumstances. So both R.C.M. 702(a)'s burden and standard violate Article 49.

R.C.M. 702(b) also violates Article 49 by changing the procedures for noticing a deposition. Under Article 49, "The party at whose instance a deposition is to be taken shall give every other party reasonable written notice of the time and place for taking the deposition." This mirrors the practice in federal civil litigation, where the party seeking the deposition issues a notice of deposition to all other parties. See Fed. R. Civ. P. 30(b). Yet R.C.M. 702(b) provides that after referral, "the military judge may order that a deposition be taken on request of a party." Nothing in Article 49 suggests that the military judge is involved in ordering a deposition; rather, a military judge's involvement appears to be limited to stopping depositions upon a showing of good cause. Federal Rule of Civil Procedure 30(a) generally allows a party to take up to 10 depositions without any necessity for judicial intervention. Article 49(b) and (d) suggest that Congress meant to follow a similar procedure, though without a numerical limitation.

Why is Rule for Courts-Martial 702 so inconsistent with Article 49? The drafters' analysis indicates the reason: R.C.M. 702(a) "is based on the first sentence of Fed. R. Crim. P. 15(a)." MCM, R.C.M. 702(a) drafters’ analysis at A21-35. How odd. Obviously the drafters should have based the Rule for Courts-Martial governing deposition practice on the Uniform Code of Military Justice, not a Federal Rule of Criminal Procedure – especially since Fed. R. Crim. P. 15(a) is inconsistent with Article 49. Rule 15(a) provides, in relevant part, "A party may move that a prospective witness be deposed in order to preserve testimony for trial. The court may grant the motion because of exceptional circumstances and in the interest of justice." That standard is irreconcilable with Article 49. And as the UCMJ's legislative history confirms, the UCMJ's drafters intended military deposition practice to be broader than that in federal civilian criminal practice. See Hearings Before a Subcomm. of the Comm. on Armed Services, House of Representatives, on H.R. 2498, A Bill to Unify, Consolidate, Revise, and Codify the Articles of War, the Articles for the Government of the Navy, and the Disciplinary Laws of the Coast Guard, and to Enact and Establish a Uniform Code of Military Justice, 81st Cong., 1st Sess. 696-97, 1065 (1949).

Where the Manual for Courts-Martial differs from the Uniform Code of Military Justice, there is no question which prevails. Article 36(a) declares that Manual provisions "may not be contrary to or inconsistent with" the UCMJ. 10 U.S.C. § 836(a) (2000). So where they conflict, "the Manual provision must yield to the statute." United States v. Swift, 53 M.J. 439, 451 (C.A.A.F. 2000).

Of course there may be tactical reasons not to depose some potential witnesses. A counsel may not want to tip off opposing counsel about likely lines of cross-examination. A counsel may not want to expose his or her own witnesses to retaliatory depositions. And if there is any chance that a hostile witness won't appear at trial, a deposition might be particularly undesirable because it would provide the opposing counsel with admissible evidence that might not otherwise have been available, as happened in Cabrera-Frattini. But when a counsel believes it is in his or her tactical interest to depose an opposing witness before trial, Article 49 provides a sound legal basis for doing so.

Thursday, March 06, 2008

New published NMCCA opinion

NMCCA issued a new opinion today. United States v. Morrison, __ M.J. ___, No. NMCCA 200700647 (N-M. Ct. Crim. App. Mar. 6, 2008). It isn't yet on NMCCA's web site, so I've posted it on

In Morrison, Senior Judge Geiser writes for a unanimous panel upholding the results of Midshipman Morrison's court-martial. Morrison was a heavily publicized court-martial alleging an indecent assault by a member of the United States Naval Academy's football team.

The court first rejects a court-stacking UCI issue. While two of the original 15 members were O-3s, they were bounced for cause (along with three O-6s, four O-5s, and two O-4s). Excluding those two O-2s, the remaining 13 original members and every one of the 15 subsequently detailed member was an O-6, O-5, or O-4. The defense counsel expressed concerns about the relative seniority of the panel, opining that when he went to the Academy, half the officers there were O-3s and below. But he didn't make a motion challenging the member selection.

NMCCA ruled that as to whether actual UCI existed, it would presume "that the CA acted in good faith and applied the Article 25(d) criteria conscientiously." Morrison, slip op. at 4. NMCCA ruled that the defense had presented no evidence either at trial or on appeal that the CA attempted to stack the court.

The court then assessed whether it was "convinced beyond a reasonable doubt that a reasonable person with knowledge of the relevant facts would not perceive that the deck was unfairly stacked against this appellant." Id., slip op. at 5. The court noted that this was a highly publicized case in which 23 of 30 members were challenged off the panel, thus "suggest[ing] the case's high visibility within the relatively small and insular Annapolis Navy community." Id., slip op. at 6.

While NMCCA noted that this high visibility required that the case be closely scrutizined, it survived that scrutiny. The court observed that the CA had, in fact, detailed two O-3s to the original panel -- thus indicating that the CA did not purposefully exclude O-3s from the member pool. The court also observed that the members were extensively voir dired over three days. The court also reasoned that because the members found Midshipman Morrison not guilty of one of the two alleged sexual assaults, they would not appear to have been "'stacked' to obtain a specific result." Id., slip op. at 7. The court concluded that a reasonable observer would not perceive unlawful command influence.

NMCCA also rejected a legal and factual sufficiency challenge to the findings.

Wednesday, March 05, 2008

Possible published opinon

Looking at the hard copy of the Air Force Court's decision in United States v. Cossio, nothing would suggest that it's a published opinion. And yet LEXIS places it in the "US Courts of Crim App for Branches of US Armed Forces Published Opinions" file. See United States v. Cossio, No. ACM 36206 (pet), 2008 CCA LEXIS 70 (A.F. Ct. Crim. App. Feb. 15, 2008) (per curiam).

I just tried to log onto Westlaw-by-credit-card to definitively resolve whether Cossio will be published. But Westlaw's credit card service put me in an endless loop between a sign on screen and a password change screen. Worse yet, Westlaw doesn't have telephone customer assistance after 2000 EST. (Thank goodness my employer's contract is with LEXIS.) So even though I was willing to pay Westlaw to let me look up the answer, apparently I can't tonight.

Just in case Cossio is actually published, let's take a quick look at it. In Cossio, a servicemember whose court-martial conviction had already proceeded through direct appeal but whose BCD had not yet been executed sought a writ of error coram vobis as the result of newly discovered evidence. Following a contested trial, A1C Cossio was convicted of larceny and some related offenses. Relying on Brady v. Maryland, 473 U.S. 83 (1963), the petition for extraordinary relief argued that the government was required "to disclose two prior worthless check convictions for SrA MHT, a key prosecution witness at petitioner's court-martial." The Air Force Court explained that "public records indicate that SrA MHT pled nolo contendere to four separate misdemeanor worthless check charges under Florida law on 23 September 2003." Cossio's court-martial was in December 2004, and he didn't learn of MHT's Florida record until September 2007.

The Air Force Court denied the writ, basically concluding that any error was harmless. The court reasoned:

[W]e need not address whether the prosecution was ever aware of the nolo contendere pleas prior to trial. In order for the petitioner to obtain relief under the Writ of Coram Vobis for a Brady violation we must find a "probability" the outcome of the challenged proceedings would have been different had trial defense counsel been aware of the pleas in question.

The court held that the newly discovered evidence couldn't satisfy that standard because "we find the petitioner's guilt to the offenses is overwhelming." The court also noted that SrA MTH's credibility "was already significantly undermined by his admission to repeated larcenies by fraud from another party."