The Situation in Canada No. 92021 was a tumultuous year for Canadian military justice. It was not unique in that regard; 2020 was similarly turbulent, and we can safely anticipate that 2022 will continue this trend. The calendar year was dominated by news media reports of allegations of sexual misconduct against various General Officers and Flag Officers (GOFO), including the former Chief of the Defence Staff (CDS), General Jonathan Vance, and his successor, Admiral Art McDonald. Some of the allegations did not actually describe ‘sexual misconduct’, or even criminal or disciplinary misconduct. Nevertheless, there was a tendency by news media to group largely disparate allegations together based upon the rank of the subject of the allegations. Consequently, concerns about sexual misconduct dominated the narrative of military justice in Canada. However, the obsession with ‘scandals’ involving GOFO should not distract from the variety of other developments involving military justice in Canada in 2021, including:
Over the course of 2021, the Canadian Forces has faced challenges similar to those faced by the armed forces of the United States, and other allies in NATO and the ‘5 Eyes’ community. The obvious comparator concerns sexual misconduct and gender equity. However, comparison and examination should not stop there. Equally, decision-makers and stakeholders in the evolution and reform of military justice should endeavour to avoid capture from a single issue. While ‘sexual misconduct’ is a relevant and pressing concern, it is not the sole issue that the armed forces of democratic nations face. The President of the United States recently signed into law the National Defense Authorization Act (FY22 NDAA), which introduces reforms to military justice in the United States. Interestingly, some of these reforms reflect changes that were introduced to Canadian military justice in 1998 under Bill C-25. Over the course of the subsequent two decades, further reforms (albeit, of a limited and piece-meal nature) have been introduced, and several analyses have been conducted (not all of which have been entirely consistent). But comparative examination of developments in other Anglo Common Law jurisdictions will likely be of some assistance as the United States embarks upon its own reforms. Rory FowlerA longer retrospective is @ Canadian Military Justice – 2021 Retrospective.
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As reported on Military Times, the CO and XO of the USS Montgomery blue crew were relieved of duty on December 30, 2021, due to a loss of confidence.
Read more at the link above. Town Hall 23: the military justice provisions of the FY22 NDAA
Now that President Joe Biden has signed the FY22 NDAA into law, it's time to take stock of what has happened . . . and try to get a sense of what happens next -- near-term, mid-term, long-term. Please join us for a discussion at Town Hall 23, at 0900 EST, Monday, January 10, 2022.https://us02web.zoom.us/j/87698124177?pwd=U29xYmhNYTZ3QU94alQ3dUkzWis5Zz09 Meeting ID: 876 9812 4177 Passcode: 536655 In no particular order, so No. 4In United States v. Alkazahg, 81 M.J. 764 (N.M. Ct. Crim. App. 2021), the Navy-Marine Corps Court of Criminal Appeals considered application of Chevron deference to criminal law, specifically applying deference to an agency’s interpretation of a criminal statute. In Alkazahg, the appellant was charged with a variety of offenses including possessing a bump stock. A bump stock is a device which allows a shooter to approximate the firing of an automatic rifle in a semi-automatic rifle by using the recoil of the rifle to continually engage the trigger. The effect allows for a similar rate of fire of an automatic rifle. The government alleged that the bump stock found in the appellant’s truck qualified as a “machine gun” under 26 U.S.C. § 5845(b). The appellant signed a pretrial agreement and pled guilty. The pretrial agreement allowed the appellant to conditionally pled guilty to possessing a bump stock. He argued that the government failed to state an offense because the bump stock did not meet the definition of machine gun under 26 U.S.C. § 5845(b). The crux of the issue before the court was whether a bump stock like the appellant’s qualified as a machine gun under 26 U.S.C. § 5845(b). It is not a simple question. Section 5845(b) goes back to 1934, and it defines machine guns as “. . . any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically [] more than one shot, without manual reloading, by a single function of the trigger.” Bump stocks go back to at least 2002 and the ATF has changed its position several times on whether bump stocks make a gun a machine gun or not. The court’s opinion does a nice job recounting the history of the government’s changing view of bump stocks, most recently following the Las Vegas 2017 shooting. Following that tragedy, where 60 people were killed by a shooter using a bump stock, a bill was introduced in Congress but it was ever acted upon. But the President decided to act unilaterally, and directed the ATF to issue a new rule covering bump stocks. In March 2018, the ATF issued a notice of proposed rulemaking to clarify the definition of “single function of the trigger” and “automatically” as defined by 26 U.S.C. § 5845(b). The final rule was issued in December 2018 concluding bump stocks were machine guns. As part of his conditional guilty plea, appellant was allowed to litigate a motion to dismiss on the grounds that the ATF’s interpretation of 26 U.S.C. § 5845(b) was invalid. The government responded, defending the ATF’s rulemaking and interpretation and invoked Chevron deference in resolving any statutory ambiguity. The issue is not unique to the military-justice system. The court referenced three different appellate cases from circuit courts of appeals struggling, inconclusively, with the identical issue. And the Supreme Court has yet to directly rule on whether Chevron applies in a criminal context. The court referenced three principle arguments against applying Chevron in a criminal case. First, that criminal laws reflect the community’s standards and moral outrage, not an agency’s expertise. Second, that such deference would violate the separation-of-powers doctrine because the Executive could functionally change criminal laws without congressional approval. And third, that deference violates the rule of lenity and does not provide fair notice. Judge Easterbrook put it this way, “Certainly judges do not defer to the Attorney General’s interpretation of Title 18.” Evans v. United States Parole Comm’n, 78 F.3d 262, 265 (7th Cir. 1996). The Navy-Marine Corps Court did an excellent job reviewing the Supreme Court’s dodging of the issue and conflicting statements over the years before musing in dicta, “On balance, we are skeptical that when the judiciary interprets an ambiguous criminal statute it must defer to the judgment of the same executive who is prosecuting the defendant.” But the court never had to reach a decision because the government, both in writing and at argument, waived reliance on Chevron. So the court never had to rule whether the government was entitled to the deference it claimed at the court-martial. The court went on to analyze 26 U.S.C. § 5845(b) without benefit of deference and found the statute ambiguous. Applying the rule of lenity, the court held that the government had failed to state an offense and dismissed the specification. The court then determined the remaining sentence was inappropriate and reassessed an appropriate sentence. Perhaps the issue will be definitely resolved by the Supreme Court in one of the pending circuit court cases, but courts have been reluctant to come down clearly on the issue. This isn’t the first time it has come up in the military-system, the Alakazahg court noted that the Court of Appeals for the Armed Forces has only cited Chevron twice and never applied Chevron deference. See United States v. Bartlett, 66 M.J. 426, 427 (C.A.A.F. 2008) and United States v. Kearns, 73 M.J. 177, 181 (C.A.A.F. 2014). The Court also dodged the issue in United States v. Miller, 62 M.J. 471 (C.A.A.F. 2006) without ever explicitly citing Chevron. In Miller, the Court was faced with an issue of waiver of appellate review and the intersection between R.C.M. 1110(f) and Article 61, UCMJ. One of the three granted issues was: To the extent that UCMJ Article 61 is ambiguous, and given that Congress has expressly granted the President rule-making authority in the field of military justice, must an Article I court defer to the President’s reasonable interpretation of that Article? Miller was a Coast Guard case and both the Navy-Marine Corps Appellate Defense Division and the National Institute of Military Justice filed amici on the application of Chevron deference to the R.C.M.’s But the Court resolved the case without ever reaching the deference issue. One interesting post-script is the petitioner in one of the circuit court cases looking at the issue, Aposhian v. Garland, No. 21-159 (10th Cir. 2021), cited the Alkazahg decision three times in his reply brief. And the Sixth Circuit mentioned the Alkazahg decision in its decision applying Chevron deference to the bump stock rule in Gun Owners of America, Inc. v. Garland, 19 F.4th 890, 912 (2021) just on 3 December 2021. An application of Chevron and other types of deference in criminal cases could have far ranging consequences in the military-justice system because so much of it is driven by executive order. For these reasons, the Navy-Marine Corps Court of Criminal Appeals decision in Alkazahg is a story of the year. Jason Grover
United States Supreme CourtBegani v. United States. Petition for a writ of certiorari denied. No. 21-335, 2021 U.S. LEXIS 6197 (Dec. 13, 2021). Remember, the Supremes denied Larrabee's petition. That leaves Larrabee, now before the D.C. Circuit Court of Appeals, as the retiree case that might get Supreme Court review because it proceeds there by a different route. Federal Court of CanadaNeri, et. al. v. The Queen. For those following the vaccine litigation in the U.S., unsurprisingly, the Canadian military is facing similar issues. The Applicants are members of the Canadian Armed Forces [CAF] who are unvaccinated against COVID-19 for varied reasons. They are opposed to a vaccine mandate. None of the Applicants has received an exemption or accommodation. They are concerned that as a result of their stance, they will receive a dishonourable release from the CAF. The Applicants therefore seek a “temporary prohibitive injunction” regarding the enforcement of any directive from the (now) Chief of Defence Staff, General W. Eyre [CDS] regarding a vaccine mandate, pending the outcome of their applications for judicial review challenging the directives [JR Applications]. Pending Appellate CasesA Fort Hood staff sergeant, who worked on post as an investigator with the Army’s Criminal Investigation Division, was sentenced to 70 years in prison for murdering his wife with puffer fish poison[.] Worth the ReadProf. Berman is always worth the read. Here he comments on military sentencing reform's in the NDAA. Dan Maurer, What the FY 2022 NDAA Does, and Does Not Do, to Military Justice. Lawfire, Dec. 30, 2021.
We thought to start the New Year on a lighter note. It was the week before Christmas. The scene was a courtroom at the Headquarters of the First Naval District, in Boston. I was a young Navy JAG officer defending a petty officer on the serious charge of sabotaging his ship by pouring five gallons of battery acid into its motor – an act that disabled the ship for over a year. My client and his co-defendants had been heard to express the wish that the ship not sail on its next mission. Misplaced containers of battery acid had been found in inappropriate places in the crew’s quarters. Things were looking bleak. Also, there was the confession. Ron MeisterCourt of Appeals for the Armed ForcesH.K. v. Eichenberger. Writ Appeal petition denied. here is a link to the AFCCA Order in the case. United States v. Quezada. A "false exculpatory statement" case. Judge Maggs writes for a unanimous court. The standard “false exculpatory statements” instruction informs the members that if the accused makes a statement tending to establish his or her innocence, and the statement is later shown to be false, the members may consider “whether this circumstantial evidence points to consciousness of guilt.” Counsel objected to the instruction but did not propose a "tailored instruction" or request any "other modification of the instruction." NMCCA recognized that the false exculpatory statements instruction is not appropriate for general denials of criminal wrongdoing. As this Court explained in [United States v.] Colcol, [16 M.J. 479 (C.M.A. 1983),] “in order to decide that an accused’s general denial of illegal activity is false, the factfinder must decide the very issue of guilt or innocence; and so the instruction would only tend to produce confusion because of its circularity.” 16 M.J. at 484. But the NMCCA found this restriction on using the false exculpatory statements instruction inapplicable in this case[.] Appellant had made a Hills-like argument which NMCCA did not address, so CAAF does. (Note to appellate advocates. "[S]ome of Appellant’s arguments appear to extend beyond the specific objection to the instructions that Appellant made at trial. The Government, however, has not argued that the Appellant forfeited any of the arguments that he now raises. Accordingly, given the lack of any objection by the Government, and our ultimate conclusion that Appellant’s arguments have no merit, we do not address the plain error standard.") Appellant argued the instruction undermined the presumption of innocence, the failure to tailor the instruction was prejudicial, the instruction improperly introduced the specter of propensity evidence; and " even if the alleged false statement was not a general denial of guilt, the falsity of the statement nonetheless turns on the ultimate question of his guilt or innocence." In re Cosio. Notice is given that a petition for extraordinary relief in the nature of writ of error coram nobis and mandamus was filed under Rule 27(a) on this date. See below under AFCCA.
Full text here. Below are two interesting passages:
"Unfortunately, section 1032 of the Act continues to bar the use of funds to transfer Guantánamo Bay detainees to the custody or effective control of certain foreign countries, and section 1033 of the Act bars the use of funds to transfer Guantánamo Bay detainees into the United States unless certain conditions are met. It is the longstanding position of the executive branch that these provisions unduly impair the ability of the executive branch to determine when and where to prosecute Guantánamo Bay detainees and where to send them upon release. In some circumstances these provisions could make it difficult to comply with the final judgment of a court that has directed the release of a detainee on a writ of habeas corpus. In addition, the limitations in section 1032 of the Act constrain the flexibility of the executive branch with respect to its engagement in delicate negotiations with foreign countries over the potential transfer of detainees and thus may in some cases make it difficult to effectuate the transfer of detainees in a manner that does not threaten national security. I urge the Congress to eliminate these restrictions as soon as possible. ... Finally, I oppose the use of open-air burn pits, which is prohibited in contingency operations by Public Law 111-84, section 317 (10 U.S.C. 2701 note). I request that the Secretary of Defense seek Presidential approval prior to exercising the exemption authority to this prohibition added by section 316 of the Act."
Seasonal greetings everyone. Santa's Elve's Advanced Landing Team (SEAL Team RUDOLPH), has launched a seek and collect mission. Please nominate the Top Ten cases for 2021. The ROE are rather simple. If you nominate more than one, please rank them. For those you nominate, please give a short summary of why you think they merit appearing on Santa's list. You can nominate as a comment here, or send to caaflog@nimj.org. The EditorsAs a secondary mission, SEAL Team-RUDOLPH is looking for nominations to the top ten EVENTS in 2021.
The ROE are the same as for the Top Ten Cases.
Comment: "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past." -- Holmes, The Path of the Law
Update (20122021)Court of Appeals for the Armed ForcesUnited States v. Tinsley. The appellate briefs are available here for more background on the case. This seems to be the correct result. Had CAAF decided that the MJ erred in granting a continuance request, they would by implication punished an accused for the failure of the government to provide timely discovery. This Court previously reviewed this case in 2019. United States v. Cooper, 78 M.J. 283 (C.A.A.F. 2019). At that time, we concluded that Appellant/Cross-Appellee Yeoman Second Class (YN2) Cooper had waived his right to request individual military counsel (IMC). Id. at 287. We then remanded the case for further review. Id. On remand, the United States Navy-Marine Corps Court of Criminal Appeals (NMCCA) held that YN2 Cooper had received ineffective assistance of counsel. United States v. Cooper, 80 M.J. 664, 666 (N-M. Ct. Crim. App. 2020). As a consequence, the NMCCA set aside the findings and sentence in this case and authorized a new trial. Id. The Judge Advocate General of the Navy, believing that the NMCCA had reached the ineffective assistance of counsel issue in an improper manner, then certified the following question to this Court: “Did the lower court err applying United States v. Chin, 75 M.J. 220 (C.A.A.F. 2016), (a) as a prerequisite to considering ineffective assistance of counsel, and (b) to disregard the knowing, voluntary, and R.C.M. 905 waivers, of individual military counsel?” United States v. Cooper, 81 M.J. 135 (C.A.A.F. 2021). YN2 Cooper also has appealed, asserting alternative grounds for affirming the NMCCA’s decision.1 With passage of the NDAA FY 22 out of Congress, Dan Maurer has put together a guide to the changes that will come into effect about two years from now, assuming President Biden signs. Cheers.
Link here.
The commander discretion issue is now moot. Commanders will now have referral authority over only a minority of GCM cases. Can we talk about something else now? This is an attempted first look at how past DoN cases might fit as a covered offense under the FY22 NDAA. (Still working on some of the USMC.) I have done this only with publicly available information as if a member of the public were looking in. So I took numbers from the Navy's publicly available Results of Trial--January to October 2021. I also took a different look using the NMCCA's Court Filings & Records.
BLUF: Almost 80% of Navy GCMs were for a covered offense, in which about 42% had a PTA. And about 26% resulted in an acquittal--according to the Navy Results of Trial reports. From the publicly available NMCCA Records of Trial for 2021 we find that about 35% of the GCM/SPCMs (across the Navy and USMC) received at NMCCA included a covered offense. Some initial comments. 1. The information is presented differently, and incompletely, in two available sources, so I would caution about making decisions based on publicly available data only. 2. A looker would be making generalizations.
4. 5 of the member acquittals one month were in the same jurisdiction (Region Southeast--covering Jacksonville, Mayport, and Pensacola). 5. While an accused faired better on the merits with members, I did not see a significance between MJA and members for sentencing. 6. The records of trial require some understanding of the process. There are convictions simply listed as an Art. 134, and only when you review the records do you find those with a covered offense. The Kevin J. Barry Writing Award for Excellence honors an outstanding scholarly article on military legal topics published in a calendar year. The award is named for an outstanding scholar and peerless advocate of reform: Kevin J. Barry, a founder and longtime director of NIMJ. Captain Barry retired from the Coast Guard after 25 years of service that included duty as an operations officer, navigator, trial and defense counsel, staff judge advocate, and trial and appellate judge. As a lawyer, scholar, citizen, and gentleman, Kevin Barry is a model for those who work to improve military justice. The award carries a $250 prize and certificate. Articles published in an academic journal, law review, or similar forum during 2021 are eligible for that year’s award (including articles dated in an earlier year but which actually appear later; some law journals take so long to release their issues that an article dated 2017 might actually appear in 2018). This award is intended to recognize substantial scholarship and will be evaluated for “excellence in military legal studies,” with the winner selected by a committee of law professors and practitioners, keeping in mind NIMJ’s mission to improve public understanding of military justice. If no article is deemed appropriate for the award, the committee may elect not to make an award for that year. If more than one article is deemed worthy of recognition, the committee may honor such articles with honorable mention. Copies of the winning and honorable articles will be published on NIMJ’s website if permitted by the author. Interested scholars should submit their articles to the NIMJ email (admin@nimj.org) with details of its publication, the author’s name, email, and phone number no later than midnight on 31 December 2021. Jeff Schogol, The Marine Corps may have blown its case against special operators accused of killing a former Green Beret. Task & Purpose, December 14, 2021. Basically, the Deputy for the Judge Advocate Division is alleged to have committed UCI. One of the Marine Corps’ top lawyers is being accused of interfering in the case of a Navy corpsman and two Marine Raiders who have been charged with the death of an American contractor after a 2019 altercation in Iraq. The reporting appears to be based partly on affidavits and motions filed in court. Phil CaveReaders will be comforted to know that "Brenden" was disabused by editor Marcus Fulton in a later tweet.
"We were appalled but hardly surprised to learn that the head uniformed attorneys, known as the judge advocate generals or TJAGs, for some of the military services are lobbying Congress to remove the provision that would place the new Office of the Special Victim Prosecutor under the service secretaries and instead allow the TJAGs to retain control. To be clear, it is the TJAGs who have vociferously opposed meaningful changes to the military justice system for more than a decade. This is yet another attempt to undermine reform, no matter the damage or cost to morale, readiness, and order. And, it shows utter contempt for the principle of civilian control of the military."
Military justice reform must ensure Special Victim prosecutors are under civilian control By Jackie Speier and Lynn Rosenthal UPDATE: Prof. Dunlap today takes these authors to task for using the term "lobbying," and for the general notion that communication lines should be shut between TJAGs and Congress -- "To be clear, Cong. Speier and Ms. Rosenthal have every right to vigorously advocate their plan, but Congress should also welcome the views of those still-serving who may dissent from all or part of it. It is only through open-minded dialogue can we hope to devise what is really the best way to handle what everyone agrees is a critically important issue for America’s military." Comment: I agree with Prof. Dunlap's words in the excerpt above. However, we must be careful not to convert "open-minded dialogue" into a presumption that one voice (which happens to be the unelected voice) is correct on the basis of "expertise." He has done that in the past, and that is an inversion of civilian control norms--something I said last summer. Civilian Deaths Mounted as Secret Unit Pounded ISIS--
An American strike cell alarmed its partners as it raced to defeat the enemy. "As bad strikes mounted, the four military officials said, Talon Anvil’s partners sounded the alarm. Pilots over Syria at times refused to drop bombs because Talon Anvil wanted to hit questionable targets in densely populated areas. Senior C.I.A. officers complained to Special Operations leaders about the disturbing pattern of strikes. Air Force teams doing intelligence work argued with Talon Anvil over a secure phone known as the red line. And even within Talon Anvil, some members at times refused to participate in strikes targeting people who did not seem to be in the fight." ... "[T]he Delta operators were under enormous pressure to protect allied ground troops and move the offensive forward, the former task force member said, and felt hobbled by the safeguards. So in early 2017, they found a way to strike more quickly: self-defense. Most of Operation Inherent Resolve’s restrictions applied only to offensive strikes. There were far fewer restrictions for defensive strikes that were meant to protect allied forces under imminent threat of harm. So Talon Anvil began claiming that nearly every strike was in self-defense, which enabled them to move quickly with little second-guessing or oversight, even if their targets were miles from any fighting, two former task force members said." Army Court of Criminal AppealsUnited States v. Thompson. Appellant pled guilty in accordance with a PTA to conspiracy to murder with premeditation and as an aider an abettor to premeditated murder. He was sentenced to Life and a DD. On appeal ACCA sets aside the finding of x because the plea was improvident. A rehearing is allowed. Some briefs are available here. The issue is whether he had a "guilty mind." Or as ACCA says, "Actus non facit reum, nisi mens sit rea, 'the act alone does not amount to guilt; it must be accompanied by a guilty mind."' United States v. Hill, 55 Fed. 3d 1197, 1202 (6th Cir. 1995). Appellant now asserts the military judge abused his discretion by accepting his plea of guilty, arguing that the record discloses a substantial basis in law and fact for questioning the plea. We agree. To quote Bailey, appellant's guilty plea admitted to an "evil-doing hand" but not an "evil-meaning mind." Stated another way, appellant's pica established the actus reus but not the requisite mens rea necessary for a conviction as a principal to premeditated murder under an aider and abettor theory. Keep in mind this is a guilty plea case and must be analyzed for an abuse of discretion. See Moratalla, CAAFlog, Dec. 7, 2021. Essentially the court finds that Appellant's responses during the plea colloquy set up a substantial question because, "Guilty pleas "must be analyzed in terms of providence of the plea, not sufficiency of the evidence." United States v. Faircloth, 45 M.J. 1 72, 17 4 (C.A.A.F. 1996). In Nye & Nissen v. United States, the Supreme Court made clear that the mens rea for criminal liability as a principal under an aider and abettor theory is one of shared intent. 336 U.S. 613 (1949). " In order to aid and abet another to commit a rime it is necessary that a defendant 'in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed."' Id. at 619 ( quoting L. Hand, J ., in United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938)). The Supreme Court reaffirmed its adherence to Judge Learned Hand's concept of shared intent in Rosemond v. United States, referring to Judge Hand's formulation, quoted above, as a "canonical The court observes that "Federal Circuit Court jurisprudence" is informative in interpreting the similar statute of UCMJ art. 877. So it adopts a shared intent theory of liability. The court found a number of statements in providency to be unhelpful in affirming the plea.
Navy-Marine Corps Court of Criminal AppealsUnited States v. Delgado.
Result. Findings and sentence affirmed. Some facts. Appellant was initially screened as a medium security prisoner. However, the Command Duty Officer [CDO] performing the screening decided to override this initial classification due to the length of Appellant’s sentence and classified him as a maximum security prisoner. As a result, Appellant was placed in segregated confinement away from general-population prisoners. Appellant exhausted admin remedies, without success. Court finds the Brig properly applied and followed instructions without any "ill motive." Court is "reluctant to second guess" here. Potential appellate caseUnited States v. Cadet JM. Trial starts Monday on allegations of sexual abuse of a child. Cheers, Phil Cave |
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