The Appellant in United States v. Sanders, 67 M.J. 344 (C.A.A.F. 2009) was found guilty, contrary to his pleas, by a judge alone general court-martial, of forcible sodomy, assault, and indecent assault. The adjudged and approved sentence was a dishonorable discharge, confinement for fourteen years, and reduction to E-1. The Air Force Court of Criminal Appeals (AFCCA) affirmed the findings and sentence. The military judge admitted during sentencing a handwritten letter recovered from the Appellant’s cell. The letter was the Appellant’s Last Will and Testament. The Appellant claimed the letter was improper rehabilitation evidence, improper aggravation evidence, highly prejudicial because of its challenge to the judge’s credibility, and would not pass the M.R.E. 403 balancing test. The CAAF ruled that if there was error in admitting the letter, the error was not prejudicial. The CAAF did not analyze if there was error in this case. The CAAF simply said if there was error, it was not prejudicial because “the military judge stated that she would not consider the personal attack on her” in the letter.Applying the principle that the “military judge is presumed to know the law and apply it correctly,” the CAAF observed “no indication that the military judge gave significant weight to the rest of the letter in arriving at the adjudged sentence.” The Court also observed the severity of the crimes and the fact that the Appellant only received a fourteen year sentence when facing life without the chance of parole.

Effective 6 January 2006, Congress amended Article 43(a), which now provides: “A person charged with absence without leave or missing movement in time of war, with murder, rape, or rape of a child, or with any other offense punishable by death, may be tried and punished at any time without limitation.” In United States v. Toussant, No. 20080962 (A. Ct. Crim. App. 2008), the charges at issue had two specifications of rape of a child under Art. 120. The first specification covered conduct that allegedly occurred on divers occasions between 1 October 1997 and 31 December 2000. The other specification deals with conduct that allegedly took place on divers occasions between 1 January 2001 and 31 December 2003. The SCMCA received the charges on 28 February 2008. At the time of the offense, Art. 43 read, in relevant part, “[a] person charged . . . with any offense punishable by death, may be tried and punished at any time without limitation.” On defense motion, the military judge dismissed these two specifications as time barred. The military judge held that the Supreme Court, in Kennedy v. Louisiana, 128 S. Ct. 2641, 171 L. Ed. 2d 525 (2008) ruled that death was an unconstitutional punishment for rape of a child in civilian jurisdictions and, if properly presented, would have applied this ruling to the military. Hence, the rape of a child was not punishable by death, and so, the 5-year statute of limitations had expired. The Government then filed a timely Art. 62 appeal. The ACCA ruled that the military judge erred in dismissing these two specifications. First, the Supreme Court expressly limited its decision in Kennedy v. Louisiana to civilian jurisdictions. Second, in Willenbring v. Neurater, 48 M.J. 152 (C.A.A.F. 1998), the CAAF specifically held that rape is “an offense punishable by death for purposes of exempting it from the 5-year statute of limitations” and “the question of whether the death penalty may be imposed, given the facts and circumstances off any particular case, does not control the statute of limitations issue.”

United States v. Johnson, No. 200900141, 2009 WL 2599398 (Aug. 25, 2009) dealt with the issue of indecent language. The accused was in a tumultuous relationship with his girlfriend, and upon their breakup, the accused sent her a text message with the following language: “I hope sumthin happens and ur [fxxxxxx] kidney stones shoot up through ur [fxxxxxx] head and blow ur brains out u [fxxxxxx] bitch I u rot in hell” (quoted from appellate opinion). The accused pled guilty to one specification of communicating indecent language under Art. 134. The accused admitted to sending the text message and stated that the language was indecent as he thought the words would make the alleged victim believe he wanted to harm her. The stipulation of fact stated , “the language was indecent because it is grossly offensive to the military community sense of proper decorum between individuals and that it is degrading, humiliating, mean spirited and outside the reasonable society expectations for conversation between individuals” (internal quotations omitted). The military judge accepted the plea. The N-MCCA determined that the accused’s plea was improvident. Indecent language refers to “that which is grossly offensive to modesty, decency, or propriety, or shocks the moral sense, because of its vulgar, filthy, or disgusting nature, or its tendency to incite lustful thought” (emphasis added). In United States v. Negron, 60 M.J. 136, 144 (C.A.A.F. 2004), the CAAF ruled that “either definition of ‘indecent contained within the current paragraph of the Manual could form the basis for a charge of indecent language.” The MCM provisions provide “two different definitions to measure speech that may be a crime, dependent on the context in which it is spoken” The accused’s language did not meet either definition of “indecent.” He admitted that his text message was indecent as it would make her think that he intended to harm her. The court found no case where fear of harm was a component of the definition of indecency. Additionally, the court found no cases to support the definition of indecency provided in the stipulation of fact. Furthermore, the court could not conclude that a “reasonable member of the military community would be shocked or grossly offended by this profane and derogatory exchange between a couple in the midst of an acrimonious break-up.” The court compared the accused’s language to Negron and United States v. Brinson, 49 M.J. 360 (C.A.A.F. 1998), two cases where the court held the speech at issue insufficient to support convictions, and found the accused’s speech less offensive than that used in both cases. The court found that the military judge erred in accepting the plea and set aside findings as to this charge and specification.

United States v. Kuemmerle, 67 M.J. 141 (C.A.A.F. 2009) is a case about child pornography. The accused in the case posted a sexually explicit image of a child to his Yahoo! profile, which other users could access. This took place on or before 7 September 2000. He later enlisted in the Navy and he entered active duty on 21 June 2001. He re-enlisted on 20 June 2005. When active duty, the accused accessed his Yahoo! e-mail account, but did not alter his profile or alter the image on his profile. During an Immigration and Customs Enforcement (ICE) investigation into a child pornography website to which the accused had access through a paid membership, ICE collected the appellant’s Yahoo! e-mail address. On 10 August 2006, an ICE agent accessed the account, viewed his profile and the image described above, and printed a hardcopy of the image. The accused removed the image from his profile on 28 June 2007. The accused was found guilty, in relevant part, of one specification of distributing child pornography under 18 U.S.C. § 2252A(a)(2)(A), charged using Clause 3 of Art. 134. The CAAF had to decide two issues: Did the court-martial have jurisdiction over the offense of distributing an image of child pornography? More particularly, when did the alleged offense of “distribution of child pornography” take place in this case? The CAAF ruled that the court-martial had jurisdiction over the offense. Because the CPPA does not expressly define “distribute,” the Court looked to three sources for a definition of the term: (1) the plain meaning, (2) the manner Article III courts have interpreted the term, and (3) the guidance that the UCMJ provides through parallel provisions. Considering these sources, under the CPPA, distribution of child pornography through the Internet has two acts: (1) the uploading of the image, where the image left the possession of the original user, and (2) the delivery of the image, where another user accessed and viewed the image. Here, the accused posted the image to his Yahoo! profile prior to his entry on active duty. The CAAF observed that the profile acts as a “’public bulletin board’ such that all Internet users can access information posted by the profile’s owner.” Although this was done before entering active duty, he accessed the account during active duty and could have removed the image. The offense of distribution happened when he was on active duty when the ICE agent accessed and viewed the image that he had posted for others to view.

In United States v. Savage, 67 M.J. 656 (A. Ct. Crim. App. 2009) the ACCA determined that disclosure of the full R.C.M. 706 report is a violation of Mil. R. Evid. 302(c). The appellant argued that he was asleep when he stabbed his victim due to a disorder known as parasomnia. Before referral, the appellant underwent a Rule for Courts-Martial (R.C.M.) 706 inquiry to determine whether he understood the charges and could assist in his own defense. The R.C.M. 706 report indicated that the appellant was competent to stand trial, that there was a reasonable possibility that the appellant suffered from “parasomnia, or somnambulism that caused an automatism or sleep-related behavior at the time of the assault,” and that the appellant may not have been unable to appreciate the wrongfulness of his conduct. The defense provided the government with notice of intent to rely on the defense of lack of mental responsibility. Approximately six weeks later, the defense e-mailed the full R.C.M. 706 report to the trial counsel without an order from the military judge. Six weeks after that, the appellant hired civilian counsel and excused the counsel who e-mailed the report. Eventually the civilian counsel notified the government that the defense would not seek the defense of lack of mental responsibility, and instead would use partial mental responsibility to negate mens rea. The defense filed a successful motion to bar the government from using the statements the appellant made in the full R.C.M. 706 report. The military judge deferred ruling on the use of those statements in cross-examination or rebuttal. Some of the statements were eventually used in cross-examination of the appellant’s expert. The ACCA ruled that Mil. R. Evid. 302(c) was violated, but the error was harmless. The defense case-in-chief contained statements from an expert that revealed specific statements made by the appellant captured in the R.C.M 706 inquiry. As a result, the government was entitled to those portions of the full report. However, the government was not entitled to the other statements made in the full report. Since the defense did not request any remedy for this, the error was harmless. The defense must have sought disqualification of the trial counsel. The ACCA held that the government did not use any of the other statements taken from the full R.C.M. 706 report at trial or in preparation for trial. The defense could have avoided the government using any portion of the report by not calling experts who authored the report.

In United States v. Usry, 68 M.J. 501 (C.G. Ct. Crim. App. 2009), the Appellant attempted suicide the day before trial was initially scheduled to begin. An inquiry into appellant’s mental condition was ordered under Rule for Courts-Martial (R.C.M.) 706. The inquiry concluded that the appellant was competent to stand trial. The appellant was on two medications at the time of trial, including Seroquel and Celexa. The appellant informed the military judge that they help with the voices and calm him down, and that they also affect his memory and make him mellow. But, in this inquiry, there was a fifty-second gap in the recording. The record reflects that the trial proceeded, but that the military judge made no specific findings of competence. The issue was whether the military judge err by not ordering further inquiry into the appellant’s competence to stand trial? Was the R.C.M. 706 inquiry defective as the reasons for the inquiry were not included and the complete medical record of the appellant was not included? Was the appellant’s plea involuntary as his mental condition caused him to be “overly compliant”? The Court held in the affirmative. The military judge did not err by not ordering further inquiry into the appellant’s competence. The Court dismissed the notion that expert testimony is need regarding medications the appellant is taking so as to assess competence to stand trial. The appellant’s own words are sufficient. In conjunction with the appellant’s words, the record indicates that the appellant was engaged in the process and coherent. The R.C.M. 706 inquiry was not defective. The non-inclusion of the reason for the inquiry is a “technical flaw” that was remedied by the defense motion for the inquiry which included all of the reasons for the inquiry. The absence of the complete medical record of the appellant is another “technical flaw.” The absence of the complete medical record is undesirable, but does not make the report per se unreliable. Even when the report finds the appellant is competent, the military judge is still responsible for determining whether or not the accused is competent. There is nothing in the record to show that the report would have been different if the board had access to the complete medical record. The accused’s plea was voluntary. The Care inquiry is a “powerful tool preventing ‘overly compliant’ or clinically depressed persons from unjustly victimizing themselves by pleading guilty.” The military judge also asked the appellant at the end of the inquiry if the appellant was forced into the plea by his mental state, and the appellant denied that he was compelled.

In United States v. Tuscan, 67 M.J. 592 (C.G. Ct. Crim. App. 2008) the issue before the court was
did the government violate Mil. R. Evid. 301(c)(2) by not notifying the defense of the grant of immunity before arraignment? During trial, the appellant’s roommate testified against him under a grant of testimonial immunity. The trial counsel followed Coast Guard procedure and secured a statement of no objection from the Department of Justice thirteen days prior to trial. The morning of the trial, the staff judge advocate secured the grant of immunity from the concerned authority. Notice was given to the appellant after his arraignment, but before he entered his pleas. The witness testified on the second day of the trial in the post luch session. The defense objected to his testimony as a violation of Mil. R. Evid. 301(c)(2), which requires notification before arraignment or within a reasonable time before the witness testifies. The military judge overruled the objection, but offered the defense an opportunity for a continuance, which was declined. The Court ruled that the government complied with Mil. R. Evid. 301(c)(2) by notifying the appellant within a reasonable time prior to the witness testifying. The defense did not seek a continuance, and based upon the timing of the trial, they still had over twenty-four hours to prepare for the testimony of the witness. The CGCCA expressed a concern that the government unnecessarily created an issue by not notifying the appellant earlier. They had the letter from the Department of Justice thirteen days prior to trial, and could have provided it then, even though the convening authority had not yet granted the immunity.

In United States v. Gardinier (Gardinier IV), 67 M.J. 304 (C.A.A.F. 2009) four pieces of evidence were admitted at trial erroneously: 1) a videotaped interview with the victim; 2) the appellant’s handwritten first statement; 3) a videotape of the appellant’s first interview leading to the first statement; and, 4) statements the victim made to the sexual assault nurse. The main evidence remaining was the second statement, taken four days after the first. This second statement tended to minimize the admissions contained in the first statement. The Court had to determine if the second statement was corroborated by admissible evidence? The Court ruled that the second statement was not adequately corroborated (or contradicted) by admissible evidence. The second statement “contained no clear admission that he took indecent liberties with [the victim] or engaged in indecent acts with her as charged.” In the absence of corroboration of the improperly admitted evidence, the CAAF finds that there is a reasonable possibility that the erroneously admitted evidence might have contributed to the conviction. So, the erroneous admission of the evidence was not harmless beyond a reasonable doubt. The findings and sentence were overruled. A rehearing was authorized.

In United States v. Paige, 67 M.J. 442 (C.A.A.F. 2009) the court had to decide if the trial counsel’s remarks constitute an improper comment on the appellant’s exercise of his Fifth Amendment right to remain silent? The court answered “yes” at least for certain parts of the argument. However, as to the uncontradicted comment, this was neither plain nor obvious error. As to the mistake of fact defense comment, the error was plain and obvious, but it was harmless beyond a reasonable doubt. The Court cited the case of United States v. Carter, 61 M.J. 30 (C.A.A.F. 2005), for the principle that the trial counsel CAN comment on the defense’s failure to refute government evidence or support defense claims. But, the trial counsel CANNOT comment when the appellant alone has the information to contradict the government evidence, or the members would interpret the argument as commenting on the failure of the accused to testify. In this case, there were many witnesses who saw the victim immediately before, during, and after the rape. The only portion where there were no witnesses was during the instance of penetration. As a result, there was no error because the appellant was not the only one who could have challenged the government evidence. The comment that the appellant had to assert the mistake of fact defense was plain error, but in this case, the evidence overwhelmingly did not support a mistake of fact defense, so the error was harmless beyond a reasonable doubt.

In United States v. Thompson, 67 M.J. 106 (C.A.A.F. 2009) the issue before the CAAF was whether the denial of the suppression motion was harmless beyond a reasonable doubt? The appellant was kept in pretrial confinement and provided with detailed counsel for his pretrial confinement hearing. Several weeks later, a Criminal Investigation Division (CID) investigator questioned the appellant without notifying his detailed counsel. The appellant waived his rights and gave a six-page confession admitting to a litany of misconduct. The military judge denied a suppression motion at trial without issuing findings of fact or conclusions of law. The confession was not admitted, but was used to refresh the investigator’s memory. Defense counsel offered a redacted form of the confession into evidence on cross-examination. The statements offered by the investigator, or by the defense did not provide of a contested charge that ultimately resulted in a guilty verdict. The Court answered in the affirmative

The Court did not determine whether the statement was taken by violating the appellant’s Fifth Amendment right to counsel, but said that even if it was, the error was harmless beyond a reasonable doubt. None of the statements admitted through the investigator, or by the defense on cross-examination, provided proof of a contested charge that ultimately resulted in a guilty verdict. The military judge had also given an appropriate limiting instruction for the redacted confession.