"Certificate for Review Filed No. 20-0342/AR. United States, Appellant v. Dashaun K. Henry, Appellee. CCA 20190688. Notice is given that a certificate for review of the decision of the United States Army Court of Criminal Appeals and supporting brief were filed under Rule 22 on this date. DID THE MILITARY JUDGE ABUSE HIS DISCRETION IN EXLUDING [sic] THE FOUR STATEMENTS ON WHICH THE PROSECUTION SOUGHT INTERLOCUTORY APPELLATE REVIEW, PURSUANT TO ARTICLE 62, UCMJ." What is going on? Also, they didn't correct the typo from before. The DJ also takes note of the vacancy on the court left by Judge Ryan's retirement last week: "Notice In Re: Court Vacancy. Article 142 of the Uniform Code of Military Justice, (UCMJ), 10 U.S.C. § 942 (2018), authorizes the appointment of five judges to serve on the Court. One of the positions is vacant. Unless the Court issues a notice that a senior judge or an Article III judge will perform judicial duties, the four judges in active service will perform the functions of the Court. See Articles 142 and 144, UCMJ, 10 U.S.C. §§ 942, 944, and C.A.A.F. Rule 6(a)." Brenner FissellEIC On 23 July 2020, the ACCA overturned Sgt Wetmore’s conviction forgery (Art 123) for factual sufficiency. Sgt Wetmore had plead guilty at a special court martial to forgery, along with larceny and false official statement. The ACCA found Sgt Wetmore’s plea was not factually sufficient because the document he falsified did not “change a legal right to the government’s prejudice.” The court upheld the sentence and the remaining findings. The ACCA opinion is available here. Sgt Wetmore made two material falsehoods. First, when he entered active duty from the reserves in 2016, he lied about being married in order to obtain BAH at a higher rate. Next, when his command was preparing a package for promotion in 2018, they noticed the discrepancy since they believed he was divorced. Sgt Wetmore submitted a divorce decree to his personnel office after changing the date of the divorce to 17 September 2018. The court focused on the second prong of forgery:
Specifically, the court found the false divorce decree did not “impose a legal liability on the government or did it change a legal right to the government’s prejudice. Since the document ended Sgt Wetmore’s right to BAH at the “with dependent” rate, it did not change a legal right to the government’s prejudice. The court primarily relied on United States v. Thomas, 25 M.J. 396, 402 (C.M.A. 1988) in narrowly construing Article 123. The court also relied on United States v. Strand, 20 C.M.R. 13, 19-20 (C.M.A. 1955) wherein an enterprising Marine created a letter supposedly from a judge advocate stating Strand was killed in a car accident, giving the term “ghosting” a whole new meaning. However, the CMA found this act would not sustain a conviction for forgery because the falsehood created no legal rights for any of the parties. Central to the court's interpretation of Art 123 is the nature of the document and the requirement it create some kind of legal liability. Surely, this document did not create a liability for BAH, it fell short of the requirement of the statute. While the appellate defense counsel deserves commendation for their advocacy, this seems to read the statute too narrowly. When Sgt Wetmore filed the false divorce document, he extinguished, or at least sought to extinguish, a government right to recover BAH that had been received falsely. It is not required that the prejudiced party realize that their legal rights had been changed at the time of the filing. United States v. Farley, 11 U.S.C.M.A. 730, 732, 29 C.M.R. 546, 548 (1960). At the time of the filing, Sgt Wetmore rightly owed money to the government, and by filing this false document that debt would extinguished, if the document was true. Also, it is not clear that “changing another’s legal rights” is limited to a pecuniary loss. Does the government have a legal right to pursue good order and discipline since Sgt Wetmore used the document to cover up his criminal wrongdoing? The CAAF may be seeing this case as a certified issue in the future. Tom FrictonMilitary Justice Editor Since things are slow in the summer we can indulge in some minutiae. Today this appeared on the DJ:
"No. 20-0321/NA. In Re Decker B. Jordan, Petitioner. CCA 201100621. On consideration of the petition for extraordinary relief in the nature of a writ of mandamus, it is ordered that the petition is dismissed for lack of jurisdiction." Google reveals that Decker Jordan was sentenced to 30 years for child rape in 2011. Case here. CAAF denied review in 2013. 72 M.J. 403. Here is another filing from last year: "Miscellaneous Docket - Summary Disposition Notice is hereby given that a petition for 39(A) Evidentiary Hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (C.M.A. 1967) and R.C.M. 1102(b)(2) & (d), which this Court construed as a petition for extraordinary relief was filed under Rule 27(a) on July 30, 2019, and placed on the docket on the 1st day of August, 2019. On consideration thereof, it is ordered that the petition is dismissed for lack of jurisdiction on this date. Jordan v. United States, 79 M.J. 215 (C.A.A.F. 2019)" I am guessing this is a prisoner complaining about prison conditions. If so, he should be filing a habeas in D. Kan., not a mandamus petition at CAAF. It would be good, if future resources (from Congress) allow, for all these dockets to be publicly available and online. This would facilitate external study of the system. For example, it would be interesting to know if the military courts are inundated with pro se prisoner petitions as are the other circuit courts. I suspect that this is not such a big problem given the small number of military prisoners. Consider this pie chart (note the military prisoner slice on the bottom right): United States v. Hanabarger [opinion link here]
Appellant was convicted of two specifications of sexual assault in violation of Article 120 of the Uniform Code of Military Justice (UCMJ). First, Appellant was convicted of penetrating a female Staff Sergeant’s (SSgt Charlie) vulva with his penis by causing bodily harm—without her consent. Second, doing so again hours later when he knew or reasonably should have known she was asleep. Appearing before the NMCCA, Appellant submits four assignments of error.[1] However, the majority reaches its conclusion focusing exclusively on his first assignment of error—whether the evidence presented is legally and factually insufficient to support Appellant’s convictions.[2] In this 2-1 decision, the Court found that the presented—namely, the admitted evidence and trial testimony—did not “eliminate[] every fair and reasonable hypothesis except guilt.”[3] [1] The additional assignments of error—though not addressed by the majority as they found the evidence lacking to support the conviction—include: (2) the trial counsel committed prosecutorial misconduct by introducing evidence of bruising to SSgt Charlie’s inner thighs at trial after unequivocally promising during pretrial litigation that he would not do so; (3) the military judge erred in denying a Defense motion to compel production of the lead Naval Criminal Investigative Service [NCIS] agent who investigated the case; and (4) Appellant’s trial defense counsel were constitutionally ineffective. [2] The dissent, however, while finding the evidence to be sufficient, would have decided the case based upon the second and third assignments of error. [3] The Court explains that “[a]fter reviewing the record, focusing solely on the admitted evidence and testimony at trial, we are not persuaded the Government proved its case beyond a reasonable doubt.” Here is what we have been waiting to see in writing. TJAG POLICY MEMORANDUM 20-02 - CONSOLIDATION OF REHEARINGS, NEW TRIALS, OTHER TRIALS, AND REMANDS Effective 31 July 2020, the Clerk of Court, U.S. Army Court of Criminal Appeals, will refer the records of trial of cases under the order of remand to the Commander, Combined Arms Center, Fort Leavenworth, KS, subject to the procedures and exceptions listed in the Rehearing Consolidation Business Rules. All rehearings, new trials, and remands, regardless of the alleged offense or offenses, will be returned to Fort Leavenworth, Kansas for disposition, subject to the limitations in the enclosed business rules. The purpose of consolidation is to standardize and enhance the processing, prosecution, and defense of rehearings and other remanded cases. The Fort Leavenworth Office of the Staff Judge Advocate, as augmented with additional Judge Advocate Legal Services personnel for the purpose of rehearing prosecution, will serve as the U.S. Army's subject matter experts on the complex procedures involved in undertaking a rehearing, new trial, or other trial as defined in Rule for Court-Martial 810. Official Link: https://www.jagcnet2.army.mil/TJAGPolicyMemo20-02. File: Here. Phil CaveAppellant was convicted under an aiding and abetting theory for counseling his lover (“MB”) to take and distribute explicit photos of her daughter (“EF”). The CAAF granted review on whether it is legally impossible for Appellant to be convicted of distributing indecent images to himself under Article 77, UCMJ, when the plain language of article 120c(d)(5) requires the images to be distributed to “another.” The NMCCA found that it was legally possible for the reasons summarized below.
CAAFlog law of armed conflict editor Michel Paradis's new book is now #1 best seller in legal history! Brenner FissellEIC A new grant from Tuesday with a fascinating issue: "Order Granting Petition for Review No. 20-0268/MC. U.S. v. Gregory S. Simpson. CCA 201800268. On consideration of Appellant's petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is granted on the following issue: WHETHER IT IS LEGALLY IMPOSSIBLE FOR APPELLANT TO BE CONVICTED OF DISTRIBUTING INDECENT IMAGES TO HIMSELF UNDER ARTICLE 77, UCMJ, WHEN THE PLAIN LANGUAGE OF ARTICLE 120c(d)(5), UCMJ REQUIRES THE IMAGES BE DISTRIBUTED TO "ANOTHER."" Lower court opinion here. Apparently he was charged as an aider and abettor to distribution when he received images of the victim from another person. Provisionally I will opine that this is how aiding and abetting liability should play out, and that this was rightly decided. However, it also demonstrates a limitation of the doctrine (due to its overbreadth). Brenner FissellEIC From Tuesday:
"No. 20-0247/AR. U.S. v. Carrera R. Anderson. CCA 20180540. On consideration of Appellant's petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.* * The Clerk of the Court is ordered to seal pages 31-76 of the record of trial (Military Rule of Evidence 412 hearing)." For more on this, see CAAF Rules Guide § 30A.03 (discussing similar action in Barry case that led to more litigation). Blackburn Analysis: CAAF takes up waiver and the good faith exception in United States v. Blackburn7/29/2020
In a case certified by the Judge Advocate General of the Air Force, CAAF returned to the messy world of waiver and the good-faith exception to suppression under the Fourth Amendment and the Military Rules of Evidence. Reversing the Air Force court, CAAF considered but rejected the appellee’s claim that the search authorization in his case was founded on an agent’s reckless omissions and misstatements to the magistrate.
In the future, when commenting on any Daily Journal entry that is relevant to interpreting CAAF's rules, I will highlight relevant sections of the CAAF Rules Guide that discusses the issue (I recently joined as a co-editor). These will be called "Rules Notes."
Today, consider the following interesting entry, which indicates that the Army TJAG withdrew certification of an issue. Recently, the NMCCA decided United States v. Becker, a case about the doctrine of forfeiture by wrongdoing.
The answer is "no." Our trusty intern team has analyzed all cases in the last decade in which CAAF was asked to overrule itself. Overruling occurred in six of the thirteen cases. Here are the cases--and whether the overruling in fact occurred:
United States v. Phillips, 70 M.J. 161 (2011) – No United States v. Payne, 73 M.J. 19 (2014) – Yes United States v. Gutierrez, 74 M.J. 61 (2015) – Yes United States v. Simmermacher, 74 M.J. 196 (2015) – Yes United States v. Quick, 74 M.J. 332 (2015) – No United States v. Cooley, 75 M.J. 247 (2016) – Yes United States v. Mangahas, 77 M.J. 220 (2018) – Yes United States v. Blanks, 77 M.J. 239 (2018) – No United States v. Andrews, 77 M.J. 393 (2018) – No United States v. Dinger, 77 M.J. 447 (2018) – Yes United States v. Perkins, 78 M.J. 381 (2019) – No United States v. Tovarchavez, 78 M.J. 458 (2019) – No United States v. Jessie, 79 M.J. 437 (2020) – No For the points of law that were addressed in these cases, read more below. A "JUDICIAL" SYSTEM IN THE EXECUTIVE BRANCH: ORTIZ V. UNITED STATES AND THE DUE PROCESS IMPLICATIONS FOR CONGRESS AND CONVENING AUTHORITIES "Abstract: In Ortiz v. United States, 138 S. Ct. 2165 (2018), the majority described the military court-martial system (a commander-controlled process for adjudicating criminal complaints) as judicial in character. It reached this conclusion over Justice Alito's dissent, which took a diametrically opposed view by describing the system as an Executive Branch entity that could not exercise judicial power. The conflict between these two views is nothing new as they have been at the center of a debate about the fundamental nature of courts-martial for more than a century. Since Congress legislates consistent with Justice Alito's executive view, a rift between the Legislative and Judicial Branches is now apparent. This gives rise to a question about the constitutionality of the court-martial framework under the Uniform Code of Military Justice (UCMJ): does the current commander-controlled process comply with the requirements of due process? The answer to this question is especially relevant in today's political environment where members of Congress, operating under an executive view of courts-martial, pressure senior military leaders to produce convictions in sexual assault cases. Therefore, this Article examines the due-process question, concluding that there is an argument that the UCMJ's court-marital [sic] framework may not meet constitutional muster. In reaching this conclusion this Article highlights the type of structural reform that is necessary to ensure due-process compliance." ![]()
No. 20-0327/NA. United States, Appellee/Cross-Appellant v. Stephen A. Begani, Appellant/Cross-Appellee. CCA 201800082. Notice is given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 on this date, on the following issue:
WHETHER APPELLANT WAIVED OR FORFEITED THE RIGHT TO ASSERT THAT HIS COURT-MARTIAL VIOLATED HIS RIGHT TO EQUAL PROTECTION. No. 20-0325/AR. United States, Appellant v. Dashaun K. Henry, Appellee. CCA 20190688. Notice is given that a certificate for review of the decision of the United States Army Court of Criminal Appeals and supporting brief were filed under Rule 22 on this date. DID THE MILITARY JUDGE ABUSE HIS DISCRETION IN EXLUDING [sic] THE FOUR STATEMENTS ON WHICH THE PROSECUTION SOUGHT INTERLOCUTORY APPELLATE REVIEW, PURSUANT TO ARTICLE 62, UCMJ. Written over 30 years ago: "Anyone tracing the path of military law over the last several decades will be struck by two phenomena: the extent of change that has overtaken the system . . . and the resistance to change. Much of the change has been justified—or condemned— under the rubric of 'civilianization'—the 'C word,' mere utterance of which still makes the occasional senior military lawyer see red." One might say that the culture of change...has not changed. ![]()
Brenner FissellEIC Does CAAF have the best looking opinions of any federal court? Some on #appellatetwitter think so: https://twitter.com/NiccoloBeltramo/status/1286673252840947713 I agree! The CAAF opinions used to be published in a horrific courier font, but were changed within the last few years. Credit must go to James Young, longtime senior legal advisor to the Chief Judge, who crusaded for this change (even studying books relating to readability of fonts). Brenner FissellEIC In United States v. Gilliam, ACCA held that the facts were insufficient to sustain a conviction for child rape. ACCA found the witness credible--believing that the digital penetration occurred--but could not be satisfied that the penetrative acts occurred during the time charged.
Circulated today on SSRN, by Prof. Zachary Price:
"While scholars have explored at length the constitutional law of office-holding with respect to civil and administrative offices, recent scholarship has largely neglected parallel questions regarding military office-holding. Even scholars who defend broad congressional authority to structure civil administration typically presume that the President as Commander in Chief holds greater authority over the military. For its part, the executive branch has claimed plenary authority over assignment of military duties and control of military officers. This pro-presidential consensus is mistaken. Although the President, as Commander in Chief, must have some form of directive authority over U.S. military forces in the field, the constitutional text and structure, read in light of longstanding historical practice, give Congress extensive power to structure offices, chains of command, and disciplinary mechanisms through which the President’s authority is exercised. In particular, just as in the administrative context, Congress may vest particular authorities—authority to launch nuclear weapons or a cyber operation, for example, or command over particular units—in particular statutorily created offices. In addition, although the Constitution affords Presidents removal authority as a default disciplinary mechanism, Congress may supplant and limit this authority by replacing it with alternative disciplinary mechanisms, such as criminal penalties for disobeying lawful orders. By defining duties, command relationships, and disciplinary mechanisms in this way, Congress may establish structures of executive branch accountability that promote key values, protect military professionalism, and even encourage or discourage particular results, all without infringing upon the President’s ultimate authority to direct the nation’s armed forces. These conclusions are relevant pending Supreme Court cases regarding military discipline and presidential removal authority. They also bear directly on pending legislative proposals to vest authority over cyber weapons, force withdrawals, or nuclear weapons in officers other than the President. From a broader perspective, they shed new light on separation-of-powers debates over the “unitary” executive branch, conventions of governmental behavior, the civil service’s constitutionality, and Reconstruction’s historical importance." Readers will remember that in 2019, the D.C. Circuit vacated nearly five years of proceedings in the Al-Nashiri military commission case after finding that Col Vance Spath, USAF, violated the rules of judicial conduct by secretly negotiating for a job as an immigration judge while on the bench. As some readers predicted at the time, the Circuit's decision could affect other military justice cases, if military judges had similarly not been careful or candid about their post-retirement job hunts. Well, that day has come. In the case of Naswan Al-Tamir, another Guantanamo military commission case, the alleged job searches of Captain Kirk Waits, USN, and the long-serving "attorney advisor" on the case (i.e. judicial law clerk) have again raised the concern of the D.C. Circuit. Back in November, the D.C. Circuit issued a stay of proceedings in Al-Tamir's case in order to review the allegations, but then held its own proceedings in abeyance in order to give the Court of Military Commission Review (CMCR) an opportunity to review the merits. In April, the CMCR denied Al-Tamir's challenge on the merits and the Circuit, shortly thereafter, docketed Al-Tamir's case for briefing and argument. Last Wednesday, Al-Tamir filed his merits brief, in which he argued: Mandamus may be drastic, and may impose societal costs, but the remedy and the costs are necessary and worth it when the repeated failures of the hybrid military commissions system remain unredressed by the CMCR. This Court decided mandamus was available and appropriate under the circumstances in Al-Nashiri. The same is true here because the same conflict exists here. Al-Nashiri controls. No meaningful distinction exists. The government's brief is due on September 15, 2020, with the reply due on October 15, 2020. Oral argument has not yet been scheduled but will likely be this winter with a decision following sometime in 2021. Michel ParadisLOAC Editor |
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