Last Thursday, CAAF released its opinion in United States v. King. King, a lieutenant colonel in the Air Force, was charged with sexual assault of his seventeen-year-old biological daughter under Article 120 and with a specification under Article 134 of committing an act of sexual penetration on his blood relative under a New Jersey statute. He was sentenced to three years confinement and a dismissal. The Air Force Court of Criminal Appeals dismissed the Article 134 offense, affirmed the Article 120 offense, and reassessed the sentence and affirmed the three years confinement and a dismissal.

The case presents useful discussion of forfeiture versus waiver and application of the plain-error standard. The context was member selection.

In this case, King’s court-martial was assembled in April 2018. At the time, one of the members selected was Lt Col PBL. During voir dire, Lt Col PBL disclosed he had been the subject of a rape allegation when he was fifteen years old. He explained the charges were “unfounded and later dismissed.” Lt Col PBL opined that his experience showed the justice system works. Neither side challenged Lt Col PBL for cause.

But then there was a continuance. The opinion doesn’t spell out all the details, but the MJ granted a defense continuance after assembly of the members based on a scheduling conflict with the defense expert consultant. I found this a fascinating detail as the Navy-Marine Corps Court of Criminal Appeals overturned a death sentence in United States v. Walker for failure to grant a continuance for a defense expert. 66 M.J. 721 (N-M Ct. Crim. App. 2008).

In this case, the court-martial was delayed four months, until July 2018. When the trial resumed, there was a new military judge, new senior trial counsel, and seven newly detailed panel members. And no Lt Col PBL. An amendment to the convening order was placed into the record showing that Lt Col PBL and two other members had been “relieved” by the convening authority. To further confuse mattes, on the record, the senior trial counsel asserted that the missing members had been excused at an earlier session. But there had been no excusing-earlier-session.

Critically, the defense did not object or challenge any aspect of the composition of the court-martial until raising the issue for the first time before the CCA.

The CCA found that King had forfeited the issue of panel composition and applied a plain error analysis. The CCA found plain error in the government failing to show good cause for Lt Col PBL’s excusal on the record but found that there was no material prejudice to a substantial right. As part of its analysis, the CCA had allowed the government to attach a declaration from the staff judge advocate which established that Lt Col PBL had been selected for the Air War College and had transferred to another base before Appellant’s court-martial had resumed. (Note a significant discussion of United States v. Jessie and supplementing the record--here by the government.)

CAAF first looked at the standards of review in a very clear parsing of the different standards for different issues including whether an issue was waived (de novo); whether the lower court properly attached documents (abuse of discretion); jurisdiction (de novo); and for prejudice (de novo).

Regarding waiver, Chief Judge Ohlson, writing for the majority, analyzed the 2016 version of R.C.M. 905(e) and found that Appellant had not waived the issue of panel composition, but simply forfeited it. The distinction is key because if he had waived it, the Court would have considered there to be no error to review but if it was forfeited the Court would apply a plain error analysis.

The Court went on to agree with the CCA’s decision to allow the government to attach documents because doing so was necessary to resolve issues raised by the record. Part of the Court’s reasoning was based on the concern that a different decision may encourage “sandbagging” of issues by trial defense counsel in the hopes of a windfall on appeal.

After finding the CCA did not abuse its discretion by attaching the documents, the Court moved to focus on the key issue, whether the panel was properly constituted. The Court noted that prior to assembly, the convening authority can remove any member for any reason. But after assembly it can do so only for good cause under Article 29(a). The Court discussed the difference between jurisdictional and administrative errors in convening a court-martial and determined the error here was administrative by not providing the good cause which existed based on Lt Col PBL’s transfer on the record. It was a failure to document the good cause rather than a lack of good cause.

Next the Court turned to prejudice under the plain error analysis. Chief Judge Ohlson praised the government for conceding the obvious and admitting that there was an error and it was a clear or obvious error. It was a nice reminder. I suspect most of us have encountered situations where the other side refuses to concede obvious points. I’m glad the Chief Judge pointed out that the government did the right thing here.

Like so many cases, it all came down to prejudice. Did Lt Col PBL’s absence constitute material prejudice to a substantial right? The Court called it “rank speculation” that Lt Col PBL may have been more favorable to the defense based on his past experience. The defense argued that it was denied the opportunity to investigate Lt Col PBL’s excusal and litigate it at trial. But the Court pointed out that Appellant was fully aware of his absence and he could have raised the issue at anytime during the court-martial.

Finding no prejudice, the Court affirmed the CCA.

Two judges wrote concurring opinions worth mentioning. First, Judge Maggs wrote separately to argue that he would have found waiver rather than forfeiture. He points out that the Court’s precedents on the issue are “all over the map.” Rather than try to reconcile the long list of conflicting decisions, Judge Maggs would apply the plain text of R.C.M. 905(e) and find waiver of the issue.

Second, Judge Hardy also concurred. But he wrote separately to raise an issue that is used much less than it might be at trial. He wrote relying on Article 36 which delegates to the President the authority to promulgate procedural and evidentiary rules for courts-martial. But those rules much, “so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.” Because federal civilian courts would generally apply a plain error analysis under Fed. R. Crim. P. 52(b), he would do the same. It is an important reminder for parties to consider what the federal law is that might be applicable or analogous. Too often, advocates (including me!) don’t even think to look.

The best lesson from the case is taken from the beginning of Chief Judge Ohlson, “This case underscores the need for everyone involved in a court-martial panel to pay meticulous attention to the panel member selection process.”

In United States v. Brissa, it was discovered after trial that one of the trial counsel had his licence suspended four months before the Appellant's trial. No prejudice, affirmed.

What is more interesting is the court's discussion of Jessie.

​Wednesday, February 22, 2023
 
Order Granting Petition for Review

You may soon see DoD banning the sale of bagels at any on base  Dunkin Donuts (or other on base bagel provider) and of course the Commissary where bagels are sold.

For those who enjoy an everything bagel, give it up.

For those who enjoy a bagel, give it up because they are made and stored in close proximity to everything bagels were there is a risk of cross-contamination between bagel toppings.

In the meantime, DoD will be putting together a task force and seeking funding of approximately $2.5M to study the ability of the drug testing laboratories to increase the nanogram level for reporting a positive use of poppy seeds in golden flow products.

For why,

While enjoying a nonbagel breakfast ponder United States v. Pugh. Both Pugh and pumpkin bread have been recommended for breakfast by alert readers.

Prof. Berman at Sentencing Law & Policy notes a cert denial in Davis v. United States, No. 22–5364, that prompted this short dissent authored by Justice Jackson and joined by Justice Sotomayor. 

Prof. Friedman doesn't post often, but when he does it's worth the read.

The en banc published opinion in United States v. Wheeler addresses the newer MJA SPCM where the Appellant challenges the referral as violative of the Fifth and Sixth Amendments. A footnote suggests two similar cases were also included within the certified question.

Appellant was charged with a single specification of sleeping on post, an offense for which the President has authorized a maximum punishment of confinement for one year, forfeiture of all pay and allowances for one year, and a dishonorable discharge.

Appellant’s charge was referred to a judge-alone special court-martial in accordance with Articles 16 and 19, UCMJ.

Appellant moved to dismiss for a lack of jurisdiction, arguing that the referral of his case to a judge-alone special court-martial violated his rights under the Fifth and Sixth Amendments to the Constitution.

Motion denied; convicted and sentenced to 15 days’ confinement.

Articles 16 and 19 create a military judge alone.

Congress also delegated to the President the authority to prescribe further regulatory limitations to the new judge-alone special court-martial’s jurisdiction.

Rule for Courts-Martial [R.C.M.] 201(f)(2)(E)'s right to object to a judge-alone special court-martial do not apply here.

During oral argument the appellant conceded no Fifth Amendment violation and focused on the Sixth Amendment claim. The court went ahead to discuss both claims in order to properly address the certified issue.

United States v. Filmore.

1. If a victim testifies on sentencing--the rules of evidence apply the same as for any other witness. Article 6b does not waive the rules of evidence when a victim testifies in sentencing. (Note, the victim gave both sworn and unsworn statements.) Failure to follow the rules (even without defense, or judge, objection) gets the defense and government and court to agree there was error and a new sentencing hearing.

2. It is NEVER EVER a good idea for an accused (or one of his witness's)[1] to impeach the verdict. Long gone are the days when we could legally seek reconsideration of the findings even through sentencing.

[1] See, e.g., United States v. Westcott, ACM 39936, 2022 CCA LEXIS 156 (A. F. Ct. Crim. App. Mar. 17, 2022) (unpub.) rev. denied 82 M.J. 438 (C.A.A.F. 2022).

Everything written by Prof. Orin Kerr is worth reading.

Orin S. Kerr, Terms of Service and Fourth Amendment Rights.