Friday, May 29, 2009

Fascinating published AFCCA opinion

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

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

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

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

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

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

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

[W]e find that under the unique circumstances of this case, the charge of possession of child pornography to which the appellant pled and was found guilty, though technically accurate, unreasonably exaggerates the criminality of the appellant's actions. That is particularly true given the fact that a conviction for child pornography would require . . . the appellant to register as a sex offender and the significant consequences of such registration, including the restrictions common to most states on where those registered may reside within any given community.
Id., slip op. at 7.

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


Cloudesley Shovell said...

This was bound to happen in some case, sooner or later, given the very broad language in Tardif regarding the CCA's Art. 66(c) powers.

That being said, can't say I disagree with the result. Will the AF JAG certify?

Anonymous said...

I knew this issue would eventually come up. It's great to see the court use common sense and make this wise ruling. It's actually kind of a brave ruling. The only odd thing is that they didn't reduce the DD. It's hard to believe that he would have gotten that without the child porn charge, but if I was the accused I wouldn't look a gift horse in the mouth. Avoiding the sex crime conviction is a gift from god!

Any opinion on appellant defense for not even raising this obvious issue? (not that I'm in any implying criticism).

Anonymous said...

This is really an example of nullification, and I'm reminded of the late Judge John Sprizzo's refusal to convict some abortion protesters in a bench trial a few years back in the Southern District of New York.

I'm untroubled by this case, but only because of the enormous powers granted to the CCAs under Article 66. If CAAF were to try this, they would exceed their authority.

John O'Connor said...

This guy is a SENIOR Airman and he's having an affair with a seventeen-year-old girl? What the hell is wrong with these people?

It's amazing to me that a CCA would specify an issue to disrupt a guilty plea that is factually and legally supported.

The interesting thing, though, is that if the CCA has (per Tardiff) the power to essentially sit as its own clemency board on offenses that are legally and factually sufficient, then on what basis could CAAF reverse? Is CAAF going to decide that the CCA didn't actually determine the finding should be disapproved?

If I were the JAG (and, I know, there are a lot of reasons I'm not), I'd certify this case tomorrow, and only tomorrow if I couldn;t get the paperwork in by COB today.

John O'Connor said...

Sorry for the double post, but I wanted to note that the CCA observed that Article 55 prohibits not only cruel and unusual punishment, and that it also prohibits flogging, branding, marking and tattooing.

On behalf of Americans everywhere, I am grateful to the Court for combing through the record to make absoluely sure that there was no evidence that the accused was flogged, branded, marked, or tattooed.

Oh, and one other thing. I guess it didn't occur to the Court that because the accused pleaded guilty and raised no issue at trial, the Government had no reason to put forth evidence to convince the CCA that there is also enough there that three colonels sitting in the Capital region should approve a conviction that is fectually and legally sufficient.

Waive, waive, waive.

Anonymous said...

So your aspiration is to be a big judge so you can declare important liberty interests waived? You must be very proud of yourself.

John O'Connor said...

Where's the liberty interest, smart guy? The court found he had in fact committed a crime.

And who said I aspired to be a judge?

Christopher Mathews said...

BZ, as our esteemed leader would say, to Senior Judge Francis for teeing the issue up for CAAF.

Cossio said...

Well, without knowing how old he was, a SENIOR Airman (e-4) can be as young as 19.

Anyways, it was legal for him (other than military Adultry) to have sex with her, the age should not be made an issue.

But more curious as to how an inmate stole appellant's blankey for cookies. I would have held out for some cigs.

Anonymous said...

Only on CAAFlog would this opinion be "fascinating." Had the court affirmed the appellant's guilty plea I'm sure CAAFlog would have titled this post as "troubling."

I'm with J O'C, it was a guilty plea, thus I think waiver should have been applied. Does anyone doubt that a federal circuit court would have upheld the offense (of course they have different age standard for what is a minor) but shouldn't the militray be held to higher standfards?

Anonymous said...

Would I get darts thrown at me for arguing the child porn age should be brought in line with the age of consent? If it's legal to have sex with someone of a certain age it shouldn't be considered a very, very stigmatizing felony to take a picture of them. I know, I know, I must be a dirty pervert. But, if 18 is the age then the UCMJ needs to bring up the age of consent to 18 or vice versa.

I have to agree with Cossio, a SENIOR airman usually isn't really that senior in age unless it's one of those high tenure senior airman.

Anonymous said...

This is also a good example of how its far better for an accused to be tried in the military courts rather than civilian courts. People complain and complain about how unfair the miltary is but in the civilian world: 1) this case wouldn't even have been appealed, and 2) the appeals court wouldn't have ruled like this if the defense didn't even make it an issue, and 3) as others have pointed out, if the defense had made it an issue, as a guilty plea, the issue would definitely be considered waived.

The military is very paternalistic, which is great for the accused.

John O'Connor said...

I agree with Anon 2238 that it makes intuitive sense that the age of consent should match the age for child pornogaphy.

On the waiver point, I just want to add that waivwer is not just a "gotcha" result. Most of the time, waiver applies because the failure to raise an issue below has left the issue insufficiently developed in the record. The accused pleaded guilty. At that point, the TC is more or less limited to evidence in aggravation, which MJs often conceive of very narrowly to avoid an appellate issue. Who really knows what more evidence would have come out on the child pornography offense in a contested trial, and that evidence would have given the CCA something to work with if it really has the power to throw out factually and legally sufficient charges as a matter of clemency. That's when waiver is most legitimate -- and inherently fair -- when a party's failure to raise an issue beliow has left the recrod insufficiently developed.

Cossio said...

Does anyone doubt that a federal circuit court would have upheld the offense (of course they have different age standard for what is a minor) but shouldn't the militray be held to higher standfards?How about this:

1) This silly charge of "child porn" would never have been prosecuted by a sane US Attorney who have better things to do, like prosecute real crime. So you wouldn't see this in a district court anyways.

2) The sentence was still affirmed, as the court said the Larceny charge was the main sticker.

3) J O'C I don't agree that because this was a guilty plea it should be waived. The issue of him being guilty - as the court made clear- was not the real issue. The issue was whether such a silly charge should have been prosecuted.

Let's take "Sodomy" for instance. How many JAG Prosecutors have commited the crime of "Sodomy" with their wife/husband?

Realistically, probably 99.999999%

So you're guilty right?

You should go to jail, right?

Maybe get a dimissal, after all you are guilty.

Why don't you self righteous douches picture this senario:

Your spouse sends you pictures, then someone using those pictures to bring up Sodomy Charges, which you are technically guilty, even though it is consenual with your own spouse.

You pled guilty because you have too.

But, the court denies you relief because a jack@$$ says the review to determine if your conviction was unfair was waived, because you pleaded guilty.

Or how about this, you walk in 5 minutes late to work. You get a court-martial for being absent your place of duty. Technically you're guilty, right? So your conviction should stand, you should have it for the rest of your life.

No, the court was right to do this, it sends a strong message.

Dwight Sullivan said...

Anon 2233, to quote a military man, CDR Spock, "Fascinating is a word I use for the unexpected. In this case, I should think 'interesting' would suffice." AFCCA's Nerad opinion is both interesting and unexpected. I stand by my use of the word "fascinating." But that word was not meant to imply agreement. In fact, while I've been thinking about this opinion quite a lot since reading it yesterday, I still haven't decided whether I agree with it or not. (Not that my agreement or disagreement is particularly important to anyone but me.) I will be interested to follow the debate and assess arguments on both sides. I'll also read JAJG's brief in the case at some point next week. The listing of counsel suggests that the government's brief was written by the estimable Capt Gray, for whom I have tremendous respect.

John O'Connor said...


Guilty pleas waive more than factual sufficiency of guilt. Let me play with your post with a slight alteration:

"J O'C I don't agree that because this was a guilty plea [a motion to suppress] should be waived. The issue of [whether there was a Fourth Amendment problem] - as the court made clear- was not the real issue. The issue was whether such a silly charge should have been prosecuted."

Of couse, as we know, an unconditional guilty plea waives a search and seizure motion, even though the search and seizure issue is intellectually distinct from guilt.

The point is, a contested trial on a charge is much more likely to bring out all of the facts regarding an offense. In a guilty plea, the government's version of what happened comes in only if it is "aggravation." And the accused in his providence inquiry often lies or minimizes. So making a decision on "justness" when you don't know what you don't know, and when you are upsetting the delicate balance that went into the decision to plead and the CA on the ground's decision to prosecute and approve the conviction, I'd think you might expect a complete record on the issue.

I'm just making this up, but what if the accused agreed to plead guilty to this because the government had other charges that it was going to bring and, without makin a sub rosa deal, the TC said if you plead to this charge (of which you're factually guilty) I don't intend to bring these other three charges bcause you'll be getting discharged anyway. Again, I'm completely making this up, but wouldn't that affect the "justness" analysis of a charge the accused is actually guilty of? And would you bet your life that those details would get into an appellate record?

Anonymous said...

I see your point J O'C. Well taken, but I still believe the court was right, it plainly has the authority to grant relief when it suspects overcharging / reduction to the absurb.

And they did affirm the sentence.

The obvious impact will be in future briefs citing this case.

Marcus Fulton said...
This comment has been removed by the author.
Marcus Fulton said...

The words "on the basis of the entire record" from Art. 66(c) just got a lot more interesting. The court doesn't say how the collateral consequences of the conviction came before it. Was there a discussion of those consequences in the record? I suppose the court can take judicial notice of the law, although the opinion doesn't really give much legal treatment to state sex offender registration laws in the opinion.

But take a collateral consequence that doesn't have such a direct legal underpinning: Under Nerad, could a CCA decide that an accused who passes a joint should not be stigmatized with drug distribution offense because distribution unfairly exaggerates what was essentially a use offense? What if the accused pleaded guilty to it, and the record doesn't make any reference to the stigma; is it still okay for a CCA to import the issue from outside of the record? If it is, then CCA's have essentially a post-hoc prosecutorial discretion equal to that of the convening authority. That is fascinating, as in unexpected.

John O'Connor said...

Maybe my last thought on this case.

1. If the law is that a CCA is empowered to decide, with no apparent constraints on its discretion, that a legally and factually sufficient charge "should not" be approved, then I think it is nonetheless error not to find such an argument waived in a guilty plea case.

2. If the law is that a CCA is empowered to decide, with no apparent constraints on its discretion, that a legally and factually sufficient charge "should not" be approved, I think the law should be amended because this power of prosecutorial discretion usurps the commander's historical and appropiate role in making those decisions, and three colonels reading a cold record are no more competent to make the call on this essentially not legal question than the CA, and are probably less competent to do so.

In that regard, I'm reminded of two quotes from lions of World War II:

"Judges are not given the task of running the Army." Justice Robnert Jackson, for the Court in Orloff v. Willoughby, 345 U.S. 83, 93 (1953).

"One of the great defects in our military establishment is the giving of weak sentences for military offenses. The purpose of military law is administrative rather than legal. . . . Army Commanders and Corps Commanders should have the authority to approve the death sentence. It is utterly stupid to say that General Officers, as a result of whose orders thousands of gallant and brave men have been killed, are not capable of knowing how to remove the life of one miserable poltroon." General George S. Patton, Jr. War As I Knew It 362 (1947) (no, I don't support the specific change suggested here, but I think the quote is interesting in how it recognizes the superior insight of the commanders in the field on certain aspects of military justice).

Socrates said...


You overstate your case. Judges are not trying to "run" the Army by deciding whether certain conduct is criminal or not.

As long as the Army retains the power to administratively remove soldiers it does not want.

Legal authorities ARE more competent A) to be aware of, and B) to assess issues involving lifelong legal stigmas. Army operational leaders do not and will not care about such minutiae. (Even lazy appellate defense attorneys who mistakenly think their only job is to examine ROTs for error do not know about many collateral consequences)

Also, in the proposed "Battle of the Titans" between ART 66 CCA POWER and WAIVER...waiver loses. Its not much of a match. Even the WAIVER that you try to pump-up with steroids is a wimp. "Wimpy Waiver," (kinda like "Glass Joe" in the old boxing video game).

Why have you fallen in love with "Wimpy Waiver"?

And you couldn't have picked a better example than General Patton to assess what commanders really care about! How many soldiers would Patton love to have slapped and kicked on their way out of the service?

I remember one episode of JAG that had a realistic plot line. The CO of the ship didn't care about the fourth amendment, he wanted the "murderer OFF his ship." So he ordered the illegal search. This kind of logic makes PERFECT sense in your paradigm. But its flawed.

Anonymous said...

I'm not sure I understand the waiver argument in this case. Absent an effective waiver of appellate review itself, how can an appellant "waive" the service courts' independent authority and responsibility to review the findings and sentence under Art. 66?

Cossio said...

Socrates, you are an indeed a wise man to reference Punch-Out's Glass Joe and compare it to waiver.

I am sorry that you were forced to drink hemlock after your Senate conviction of "corrupting the moral youth of Athens".

Do you believe that such a charge was a precursor to Article 134?

Just curious if that influenced your deposition on this opinion.