Articles Posted in The CCAs

The problem is that the CCA’s don’t do that enough.  But at least they have the power.

In United States v. Quick:

The underlying issue is whether Article 66(d), UCMJ, authorizes the CCAs to order sentence-only rehearings. The government argues that the CCAs do not have that authority and asks that we overrule this court’s decision in United States v. Miller, 370 C.M.A. 296, 27 C.M.R. 10 (1956), in which we specifically recognized the authority of the CCAs to order sentence-only rehearings. The government asserts that Miller was wrongly decided in light of Jackson v. Taylor, 353 U.S. 569 (1957).

As the gubmint’s oft-stated “it’s too hard” argument CAAF said:

As noted in Miller, sending a case to CCAs for a sentenceonly rehearing is somewhat cumbersome, as a new court must be assembled and informed of the facts. 10 C.M.A. at 299, 27 C.M.R. at 373. However, a process that is cumbersome does not equate to a process that is unworkable. The very fact that the CCAs have been ordering sentence-only rehearings for over sixty years demonstrates the workability of the process.

Along with deciding the issue, CAAF made a couple of comments interesting to those students of CAAF’s stare decisis belief.

  • We do not believe that Miller was so poorly reasoned that it should be reversed on that basis alone, particularly when it has been accepted by and relied upon by both the legislative and executive branches of government in the intervening years.
  • Legislative history does not support overruling.
  • A long supportive history following the case sought to be overruled and thus an argument for consistency.  But, one asks, what about Fosler?
  • The Supreme Court has held that stare decisis “is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee, 501 U.S. 808, 827 (1991); see also Tualla, 52 M.J. at 231. As noted, the Miller rule has been in effect for over sixty years and during that time has become accepted procedure in the military justice system. It has provided a predictable and consistent appellate remedy for both litigants and the lower courts to follow.  (Fosler anyone?)
  • (Note from the two dissenting judges)  The fundamental error in the court’s analysis was in according the policy of stare decisis an aspect of flexibility that it does not have. A precedent-making decision may be overruled by the court that made it or by a court of a higher rank. That discretion, however, does not reside in a court of a lower rank. United States v. Allbery, 44 M.J. 226, 228 (C.A.A.F. 1996)

The Supremes anyone?


Can a failure to file a pretrial motion equal ineffective assistance of counsel?  The BLUF is yes in some cases.  In some instances I have argued IAC on appeal for failing to make a meritorious motion.  The NMCCA has issued an interesting opinion in United States v. Spurling, in which they discuss this important issue.  The opinion appears to be an en banc one although not labeled as such – Sr. Judge Ward writes for a majority of five, with three dissenters in an opinion written by Judge King.  The issue of IAC for failure to raise a pretrial motion is neither novel nor rare.  Many of my appellate clients raise a question about why the defense counsel didn’t fil a particular motion.  I am about to file one in a case (citing United States v. Grostefon) where the client complains that the defense counsel did not file a motion to dismiss certain charges.  A more common issue is a motion to suppress, or speedy trial, or UCI.

  1. Spurling claimed IAC because his counsel did not litigate his admissions. Interestingly both counsel admitted they didn’t even catch the issue:  [Counsel] failed to “recognize the issue based on [her] lack of experience, the work load at the time, and never having argued an Article 31 issue[.]”
  2. Capt B concurs, stating that had the issue occurred to him “[he] would have proposed filing it.”
  3. Both TDC acknowledge that it was not until after participating in a post-trial debrief with the military judge, who asked whether they had filed a suppression motion, that they recognized the issue.

So how is this admitted “failure” to be reviewed. The court states the standard as a need to show a reasonable probability the motion would be a success, and this must be a substantial chance, not a mere probability. United States v. Jameson, 65 M.J. 160 (C.A.A.F. 2007); United States v. McConnell, 55 M.J. 479, 482 (C.A.A.F. 2001).  Without this finding, there is no IAC even if there is an error, because there is no prejudice.  However, the dissenters, expressed through Judge King would set aside the findings and sentence on the IAC issue. The court then goes into the ongoing issue of when is a person acting within a official capacity. Finding no substantial likelihood of success on the motion the court finds no harmful and prejudicial error.  There has been some discussion already on the requirement to advise a person of their Article 31, UCMJ, right to silence.

Expect to see Spurling at CAAF, potentially as a trailer.

Spurling wins something on the inappropriate sentence – a set aside of the BCD.

Do you have to raise every single motion?  No.

Do you have to raise every single motion the client asks you to?  No.

I wonder what the MJ would have done if the counsel had asked for a post-trial session to litigate the motion at that time, if for no other reason than to make a record for appeal?  We know the MJ can hold such a hearing.


For client Sgt Brown, with the assistance of his military defense lawyer we have secured a dismissal of some charges and a new trial on the remainder.  In United States v. Brown, the NMCCA issued an opinion on 30 June 2014, which addressed three of eight errors we raised: multiplicity of charges, validity of a false official statement, and improper use of character evidence which substantially prejudiced the defense.  Because of the court’s resolution of these errors they did not address the remaining five.

The court concluded that because of the prosecution and judge failures, “The findings and sentence are set aside.  Charge II and its sole specification (false official statement) are dismissed with prejudice.  A rehearing on the remaining charges is authorized.”

1.  On the multiplicity the court stated that, “we note that the Government concedes on appeal that it is “well established that the simultaneous possession of several weapons constitutes only one offense” for purposes of 18 U.S.C. § 922(g)(9). ”

2.  The military appellate courts have been taking a hard look at the issue of what is or isn’t a “official statement” for purposes of a UCMJ prosecution at court-martial.  The NMCCA has evaluated the facts in Brown’s case and determined that the circumstances surrounding his alleged false statements were not official.

 While these conflicting accounts paint a confusing picture of what exactly was said, the two clearly had an official duty to keep custody of the appellant.  But an informal conversation over sandwiches, one that GySgt T characterized as having nothing to do with his function as the legal officer, bore no bearing to any dialogue necessary to the appellant’s detention.  We therefore conclude that this statement lacked officiality within the meaning of Article 107, UCMJ.

3.  The more important decision of the court related to errors in the admission of adverse character evidence.  Essentially the prosecution offered and the military judge admitted a number of allegations about Brown’s character that is best described as evidence of predisposition.  Under the circumstances of this case predisposition evidence is inadmissible.

This case illustrates several points.

1.  The defense must be alert and object to efforts by the prosecution to adduce improper character evidence.  In this case the military defense counsel do a decent job at trial at objecting and preserving the issues.

2.  The prosecution has to be careful in seeking to prove guilt by offering inflammatory character information.  When they do that they risk taking a winnable case and making appellate issues.

The other day I commented about Grostefon issues.  Well, here is another example of Grostefon possibly working for the Appellant.

On Thursday CAAF granted review in the Air Force case of United States v. Yanez:

No. 14-0411/AF. U.S. v. Joseph W. YANEZ. CCA 38181. Review granted on the following issue:


The Appellant in Yanez personally raised the issue pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). The AFCCA opinion is here.

In United States v. Blouin, ARMY 20101135 (A. Ct. Crim. App. 28 May 2014), the court has, in my view, taken a broader view of what qualifies as CP for the purpose of a guilty plea.  However, the court is not taking an unknown or unvisited trail.

Blouin was charged with possessing CP in violation of 18 U.S. Code Sec. 2256(8), to which at trial he plead guilty.

As is common in these type of cases, the prosecution threw up a whole bunch of alleged (173 to be exact) CP images, without really understanding what they were doing.  And they compounded this with offering 12 images as a “sample.”  This caused the military judge to reopen providency, because he found only three of the images were likely CP.

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In United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and United States v. Quigley, 35 M.J. 345 (C.M.A. 1992), the court set out a procedure to follow when an Appellant wants to raise and issue, but appellate counsel do not think it has merit for briefing.

During my time as deputy director at Navy Appellate Defense we did an informal study of Grostefon issues and found that the appellate court would from time to time find error and sometimes grant meaningful relief.

So when you begin reading United States v. McIntosh, ARMY 20120780 (A. Ct. Crim. App. 29 ay 2014), a Grosty case, you wonder what’s in store – the usual – some may say yes.

Appellant asserted that the prosecution failed to prove his possession of CP was prejudicial to good order and discipline.  The ACCA agreed.  But, in the typical pyrrhic way, the ACCA affirmed the finding based on sufficient evidence of service discredit, and affirmed the sentence.

I was over at ACCA today for the oral argument in United States v. Martin.

As best I could tell CPT Martin was really drunk at the time of the alleged offenses.  A cab driver who dropped him off apparently testified that “he was the most drunk person he’s ever seen,” or words to that effect.  The gate guard said that “he could have been knocked over with a finger push,” or words to that effect.  And there was testimony that he could have been around a 2.5.

So, one of the judges asks appellate government counsel various questions about the appellant’s state of intoxication.  Naturally the government was downplaying it because the argument was he was too drunk to form a specific intent for attempted rape.  Eventually the judge asked if the appellant had been a complaining witness of sexual assault, would he have been drunk enough for a substantial incapacitation charge.

The humor — the government said no.  If that’s the case, then the vast majority of the substantial incapacitation sexual assault by alcohol cases are “unfounded” and there is insufficient evidence on that element.

I posted a couple of weeks ago almost, that NMCCA’s cases in which the Fosler issue was addressed.  We have another case which appears consistent with NMCCA’s approach in those prior cases.

In United States v. Leubecker, the court took up a Fosler issue again.  The two challenged specifications related to breaking restriction and communicating a threat.  NMCCA ruled against appellant.

1.  It was a guilty plea, with a PTA.

2.  The accused did not object (although there was no express waiver of the issue).

3.  The court was at pains to distance themselves from Fosler which is an adultery charge.

4.  In addressing the breach of restriction the NMCCA emphasized the years of history and its peculiar military related offense.

NMCCA seems to be making the analysis hinge on the nature of the offense charged rather than the Article itself.  Some charges are clearly related to good order and discipline.  It seems to me that part of the analysis is surplusage – it was a guilty plea case.  In a guilty plea case what’s the prejudice?