Court of Appeals for the Armed Forces

United States v. Hasan

This opinion is a reconsideration. The original decision has been removed from the website. This case is one of a few cases where the accused elected to represent himself.

United States v. Ramirez

Appellant asks this Court to decide whether the military judge improperly denied his request to ask a question about racial bias during voir dire. For the reasons set forth below, we conclude that the military judge did not clearly abuse his discretion and affirm the judgment of the CCA. 

ACCA decision and briefs.

The accused is Hispanic and the alleged victim is “of Caucasian descent/appearance."

Before the start of trial, Appellant requested multiple voir dire questions, including “Does anyone’s cultural background influence your perception on relationships between individuals of different races?” The military judge denied the question by checking a box on a form indicating that it was “[t]oo confusing, a trick question, or unhelpful to ferreting out sincerity and ability to sit as [a panel] member.” The military judge told the parties to submit any requests for reconsideration on his voir dire rulings by the night before trial. Defense counsel did not submit any requests. The first day of trial, the military judge again stated that he would entertain any motions for reconsideration related to voir dire. Again, defense counsel did not make any requests for reconsideration or objections to the military judge’s denial of the race-related question. Nor did he inquire into the military judge’s basis for the denial.

CAAF will follow and apply Rosales-Lopez v. United States, 451 U.S. 182 (1981). A few takeaways:

• It is a constitutional requirement to inquire into the possible racial prejudice of potential jurors in cases where racial issues are “inextricably bound up with the conduct of the trial.”
• "Only when there are more substantial indications of the likelihood of racial or ethnic prejudice affecting the jurors in a particular case does the trial court’s denial of a defendant’s request to examine the jurors’ ability to deal impartially with this subject amount to an unconstitutional abuse of discretion.”
  
• Generally, the defense decides to  voir dire questions about racial prejudice. However, “the judge need not defer to a defendant’s request where there is no rational possibility of racial prejudice.”
  
•  The race of the junior officer’s wife had not been discussed during voir dire.
  
• Appellant had failed to establish any meaningful racial difference between the two of them.
  
• No evidence in the record that racial issues were inextricably bound up with the conduct of the trial.
  
• Defense didn't narrow his request or propose a more specific question.
• Is there a reasonable possibility that racial or ethnic prejudice might have influenced the jury.

United States v. Driskill

A second court-martial involving the same factual offense violated the Double Jeopardy Clause of the Fifth Amendment. Judge Maggs wrote the decision for the Court. There were no dissents.
 
At first glance, it seems hard to imagine that you would have a case that violated in double jeopardy. But Driskill provided the military judge and the Air Force Court of Criminal Appeals (AFCCA) with a complicated enough set of facts that I understand how it happened.
 
Airman Driskill was initially prosecuted in Italy in 2018 for three specifications violating the 2012 version of Article 134, UCMJ. The third specification was under clause 3, incorporating 18 U.S.C. 1466(b)(1), for possessing obscene cartoons depicting minors engaged in sexually explicit conduct. Driskill argued that the court lacked subject matter jurisdiction to try him for this specification because one of the elements of section 1466(b)(1) was that “the offense is committed in the special maritime and territorial jurisdiction of the United States or in any territory or possession of the United States.” 18 U.S.C. 1466A(d)(5). Italy generally doesn’t count.
 
Following closing arguments, the military judge agreed, dismissed the third specification and concluded that the “lack of extraterritoriality within § 1466A does not foreclose prosecution for the offense alleged, it only forecloses prosecution under the current charging scheme.” So she refused to dismiss the specification with prejudice. Driskill was acquitted of the other two specifications.
 
A year later, in 2019, Driskill was court-martialed again. This time, the government charged two specifications of violating Article 120(b), UCMJ as well as bringing the same allegation involving obscene cartoons, but this time under Article 134, UCMJ, clause 2. The date range was identical.
 
Driskill moved to dismiss the new clause 2 specification arguing double jeopardy under the Fifth Amendment and Article 44(a), UCMJ. The military judge denied the motion based on the military judge’s statement in the first court-martial that the dismissal of the original Article 134, clause 3 offense was for a lack of jurisdiction and so did not bar alleging the offense under a different charge. Driskell petition for a writ of mandamus with the Air Force Court of Criminal Appeals, but AFCCA denied the writ. Compare In re Murillo, NMCCA, granting an interlocutory writ on double jeopardy grounds.
 
Following his loss at AFCCA, Driskell pled guilty to the Article 134, clause 2 specification, with the understanding he was not waiving his double jeopardy issue, and not guilty to the additional specifications under Article 120(b), UCMJ. Contrary to his pleas, Driskell was convicted and sentenced to a dishonorable discharge, forty years and nine months confinement, forfeiture of all pay and allowances, and reduction to E-1.
 
AFCCA found no violations of double jeopardy on appeal. The court reasoned that jeopardy had not attached in the first court-martial because the military judge had dismissed the specification for lack of jurisdiction. AFCCA did, however, reassess the sentence and reduced the confinement to thirty years.
 
CAAF granted on the single issue of double jeopardy. CAAF first looked to United States v. Easton, 71 M.J. 168, 172 (2012) for the principle that jeopardy attaches when evidence is introduced.
 
CAAF next considered R.C.M. 907(b)(2)(C)(iv), which says, “no court-martial proceeding which lacked jurisdiction to try the accused for the offense is a trial in the sense of this rule.” Given the first court-martial’s ruling that the clause 3 Article 134 specification was dismissed for a lack of jurisdiction, this appears to close the door on Driskell’s double jeopardy argument.
 
CAAF looked at R.C.M. 907(b)(2)(C)(iv) but concluded that Driskill’s first court-martial had personal and subject-matter jurisdiction despite the military judge’s dismissal of the specification for lack of jurisdiction. CAAF explained that the court-martial’s ability to try Driskill and hear the case was not the same as the jurisdictional element of the incorporated offense. CAAF reasoned that the incorporated offense in violation of section 1466A contained as an element of the offense that the conduct occur in a location that the statute applied. That is a statutory element of the offense involving the sufficiency of the evidence, not involving the personal and subject-matter jurisdiction of the court-martial. In support of this reading, CAAF looked to the Tenth Circuit case of United States v. Tony, 637 F.3d 1153, 1158-59 (2011).
 
Turning to the second piece of CAAF’s double jeopardy analysis, the Court looked at the Blockburger test. Blockburger v. United States, 284 U.S. 299, 303-04 (1932). Basically under Blockburger, the government is not barred in trying the accused a second time if the two charges involved require different elements. So here, are there different elements for the incorporated Article 134 clause 3 offense and the second Article 134, clause 2 offense?
 
CAAF relied on its precedent in United States v. Rice, 80 M.J. 36 (2020). In Rice, CAAF declined to follow Blockburger strictly when looking at Article 134, UCMJ offenses. CAAF concluded in Rice that a strict application of Blockburger would allow the government to reprosecute Title 18 offenses under Article 134 by simply removing a jurisdictional element and charging an offense as a violation of clause 1 or 2. 80 M.J. at 41. The government argued that Rice should be confined to its facts or that CAAF should reconsider Rice and strictly apply the Blockburger test. CAAF agreed the scope of Rice was narrow, but found it applied to these facts. And CAAF found insufficient reason to reconsider its recent precedent in Rice. 
 
As a result, CAAF set aside the decision of AFCCA and remanded the case for a new review under Article 66, UCMJ.
 
The case was an excellent discussion of double jeopardy caselaw and is worth a read as a primer or a refresher.

In the meantime, Driskill is serving his sentence of many years of confinement at the USDB.

Jason Grover and Phil Cave

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