Air Force Court of Criminal Appeals

United States v. Injerd is worth the read.

1. Charging decisions and word choice.
2. How calculating the actual sentence can be a bit complicated under the new rules.
3. The facts, are well, interesting.

Of Counsel and Appellant's combined 15 issues, the court focuses on the two assigned errors to find a factual insufficiency for the resisting apprehension conviction, but no error as to the sentence calculation.
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Charging decisions?

An MJ found Appellant guilty 

​of attempting to escape custody, desertion, resisting apprehension, striking a superior noncommissioned officer, failure to obey a lawful order, unlawfully carrying a concealed handgun, assault upon a person in the execution of military law enforcement duties, fleeing apprehension, and resisting apprehension[.]

Appellant

was acquitted of one specification each of fleeing apprehension and assaulting a superior noncommissioned officer[.]

The court's discussion begins with "If there was one incident that set in motion a chain of events that would result in the convictions under review, it might be when Appellant learned that his squadron commander did not recommend his promotion to senior airman (E-4)."

For Appellant to be found guilty of [resisting apprehension], as charged the Prosecution was required to prove three elements beyond a reasonable doubt: (1) that Officer JB attempted to apprehend Appellant; (2) that Officer JB was authorized to apprehend Appellant; and (3) that Appellant actively resisted the apprehension.

“Apprehension is the taking of a person into custody.” Article 7(a), UCMJ, 10 U.S.C. § 807(a); see also MCM, pt. IV, ¶ 12.c.(1)(a); Rule for Courts-Martial (R.C.M.) 302(a)(1). “Apprehension is the equivalent of ‘arrest’ in civilian terminology.” R.C.M. 302(a)(1), Discussion; accord United States v. Harris, 29 M.J. 169, 170 (C.M.A. 1989). An “apprehension” is distinct from the “detention of a person for investigative purposes,” in that probable cause is required to apprehend. R.C.M. 302(a)(1), Discussion; see also R.C.M. 302(c) (requiring probable cause to apprehend). Conversely, an “investigative detention” does not require probable cause, “normally involves a relatively short period,” and does not permit an extensive search of the detainee. R.C.M. 302(a)(1), Discussion

The government's theory at trial and on appeal was that  

Officer JB initially sought to apprehend Appellant when he tried to place handcuffs on Appellant’s wrists for refusing to comply with the commander’s order to relinquish his firearms [and not that he]  resisted apprehension for the crime of assault. 

I think the nub of the court's finding is that

Resolution of this assignment of error turns on whether it was apprehension, as distinct from detention, that Appellant resisted, and, if so, whether the Government proved beyond a reasonable doubt that Appellant was aware of that apprehension when he failed to comply with Officer JB’s directions and then swung at Officer JB’s face. In our evaluation of the evidence in the case before us, we are not convinced a rational trier of fact could find that Officer JB attempted to apprehend Appellant for violation of the commander’s order. Instead, the evidence shows Officer JB’s purpose, and the actual notice to Appellant, was to simply detain Appellant to allow a peaceful removal of firearms from his home.

The court relies heavily on United States v.  Harris, 29 M.J. 169 (C.M.A. 1989) when looking to whether circumstantially Appellant was on notice of an attempt or actual apprehension. From Harris, we have

The law regarding apprehension, however, does not turn on the police officer's subjective motive. What matters is what he communicated to the appellant. What matters is what he communicated to the appellant. See United States v. Sanford, 12 M.J. 170, 174 (C.M.A.1981) (objective-circumstances test applied to determine whether appellant was being restrained for law enforcement purposes). Rule for Courts-Martial 302(d)(1) has the same objective standard which provides that notice for apprehension "may be implied by the circumstances."

This, however, is not decisive, for it still was necessary that [the officer] possess the specific intent to apprehend Harris. Unfortunately for the Government's case, Mitchell, in his testimony -- despite being questioned closely on this point -- never was willing to say that, while in pursuit of appellant, he at any time intended to apprehend him. This testimony is somewhat implausible for, typically, a military policeman in hot pursuit at high speeds with siren on and lights blazing intends to apprehend the person whom he is pursuing. We must, however, take the record of trial as we find it; and it does not contain the necessary evidence of specific intent on the part of the military policeman.

Id. at 171.

The problem in Harris was

At 2:30 a.m. a military policeman observed Harris speeding through a red light in Fort Riley, Kansas. Mitchell turned on his siren and emergency lights and pursued appellant through the base and into the civilian community. A witness testified that the siren could be heard from as far as a mile away. The chase was conducted at speeds of 75 miles per hour through a 45-mile-an-hour zone. Mitchell testified that he was as close as 15 to 20 yards to appellant's car during the chase.

Harris drove into a trailer park, abandoned the car, and fled into a wooded area even though Mitchell shouted, "Hold it, Military Police." After a short time, appellant was observed surreptitiously trying to enter his trailer and was apprehended. He offered no resistance at that time.
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Mitchell testified that his original intent had been to make an administrative stop, rather than an apprehension. After the stop, he would have decided whether to apprehend appellant. The policeman also testified that he did not consider the action he had taken before arriving at the trailer park to be part of the apprehension.

In Harris and in Injerd (there's no evidence Injerd was injured) the principle is the same but the difference in facts doesn't undercut the principle's application. In Harris the officer testified he did not intend to arrest--implausible as it sounds, rather to initially detain for further investigation. In Injerd the officer's testimony suggests the intent was to temporarily  detain Injerd to get the weapons and not to arrest him.

I'm not sure I like this ruling. What could Injerd have been thinking when he was told to turn against the wall and the officer was getting his handcuffs out? Does it actually matter what Injerd thought he was being handcuffed for-- and was he considering the legal niceties of apprehension or detention? Is it now a matter to be proved that the person has to know that there is an apprehension to be made and what specific offense that is for? Is it now a matter of proof that at or before telling the person to face the wall or drawing handcuffs the officer must say "I'm arresting you (for x)" or "don't worry, I'm only temporarily detaining you" or words to that effect. And could there be an affirmative defense of reasonable mistake of fact that he was resisting detention not arrest?

I have to go back to "The law regarding apprehension, however, does not turn on the police officer's subjective motive." Harris, 29 M.J. at 171. Injerd and to some extent Harris do exactly that?

Oh, the charging decision. Wasn't it enough to have him convicted of assault on police? The circumstances of the assault were clearly aggravating and admissible in sentencing as are the circumstances of his running away. If resisting detention is not a specified offense, could a creative prosecutor use UCMJ art. 134(1), (2)? JSC, some work here?

Injerd was sentenced to 30 months. The maximum punishment for assault on police is 36 months (desertion terminated by apprehension is three years). I suspect his total potential maximum would be higher based on the other convictions. Streamlined prosecutions go quicker with less appellate time.

Well actually, AFCCA had to decide if he was sentenced to 30 months or 26 months. Having taken care of the Quiroz issue, 

When announcing sentence on 6 March 2021, the military judge announced a term of confinement for each of Appellant’s ten convictions. For the Specification of desertion he adjudged confinement for four months. For the Specification of failure to obey a lawful order he adjudged confinement for one month. Tallying both terms (5 months) and the combined terms adjudged for the other eight specifications (26 months), the total confinement adjudged was 31 months. However, in announcing sentence, the military judge announced, also, that “[a]ll sentences to confinement will run consecutively, with the exception of Charge IV and Charge V, which will run concurrently[.]

​However, in his Statement of Trial Results dated the same day that he announced sentence, the military judge stated the total adjudged confinement as 30 months. The entry of judgment signed by the military judge on 26 March 2021 also stated that Appellant was to serve a total confinement period of 30 months. Also, both the Statement of Trial Results and entry of judgment stated that each of the confinement terms United States v. Injerd, No. ACM 40111 17 for the Specifications of Charges IV and V were concurrent with the other “pursuant to R.C.M. 1002(d)(2)(B)(iii).” 

The court affirms a 30 months confinement "total." They found the MJ's calculations correct and without ambiguity and that 

Niether Appellant ​nor trial defense counsel took issue with the military judge’s sentence, nor did they express any concern about the announcement or ask the military judge to “call the court-martial into session to correct the announcement.” See R.C.M. 1007(c). Moreover, Appellant did not bring a post-trial motion “to correct a computational, technical, or other clear error in the sentence” within five days after receipt of the entry of judgment. See R.C.M. 1104(b)(1)(C) and (b)(2)(C).

​Because the military judge referenced R.C.M. 1002(d)(2)(B)(iii), we are convinced that the sentence was not ambiguous, and that the entry of judgment correctly reflects Appellant’s adjudged confinement. Therefore, relief is not warranted on this issue. 

Cheers.