In United States v. Yanger, 67 M.J. 56 (C.A.A.F. 2008), the CAAF details the elements of self defense. The accused was a Coast Guard enlisted member. One day while returning from a drug purchase, he was confronted by his wife who was holding the stem of a broken wine glass. The two struggled and the accused pushed his wife away. She stumbled, fell, and injured herself in the neck with the wineglass. She ultimately died and the accused pled guilty to involuntary manslaughter. The CGCCA set aside the guilty plea as improvident, finding that the military judge erred by failing to explain the elements of self-defense at the providence inquiry. CGCCA’s ruling was reversed by the CAAF. The CAAF concluded that there was no significant basis in law or fact for rejecting the plea. The elements of self-defense require that the accused: (1) apprehend, upon reasonable grounds, that bodily harm was about to be caused wrongfully on the accused; and (2) believe that the force the accused used was needed for protection against bodily harm, provided that the force used by the accused was less than force reasonable likely to inflict death or grievous bodily harm. At the providence inquiry, the accused’s responses were “unambiguous.” He did not feel threatened by his wife, he did not apprehend bodily harm, and he did not believe that shoving his wife was necessary for his own protection. Therefore, “the possibility of self-defense was resolved by this inquiry.”

United States v. Johnson, No. 200900141, 2009 WL 2599398 (Aug. 25, 2009) discusses 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 admitted to one specification of communicating indecent language under Art. 134. The accused plead guilty to sending the text message and stated that the language was indecent since he thought the words would make the alleged victim believe he intended 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 admitted the plea. The N-MCCA ruled that the accused’s plea was improvident. Indecent language is “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 held 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 since it would make her feel that he intended to harm her. The court found no case where fear of harm was a component of the definition of indecency. Besides, the court found no cases to support the definition of indecency provided in the stipulation of fact. Also, 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 determined the speech at issue insufficient to support convictions, and found the accused’s speech less offensive than that used in both cases. The court determined that the military judge erred when accepting the plea and set aside findings as to this charge and specification.

The issue before the Court in Kansas v. Ventris, 129 S.Ct. 1841 (2009) was whether a statement obtained in violation of the accused’s Sixth Amendment rights using an undercover informant can be used for impeachment purposes? The court ruled that for procedural violations of the Sixth Amendment right to counsel, the government can use the testimony for the purpose of impeachment. The Court further noted that police officers already have a strong incentive to ensure that they and their informants abide by the Constitution, since such statement can be used for all purposes. There would be no further deterrent to forbid impeachment use, since that would usually be ineffective. The defendant would have to testify, and the statement taken would have to have impeachment value. In this case, prior to trial, officers planted an informant in Ventris’s cell, instructing that informant to “keep his ear open and listen” for incriminating statements. After the informant told Ventris that he seemed to have “something more serious weighing in on his mind,” Ventris admitted that he’d shot the victim in the head and chest and took his money and a vehicle. At trial, Ventris took the stand and blamed everything on his co-defendant. The prosecution relied on the informant to impeach Ventris’s testimony, and Ventris objected. The government admitted that they violated Ventris’s Sixth Amendment right to counsel, however argued that the statement was admissible to impeach. The trial court agreed and allowed the informant to testify. The Kansas Supreme Court reversed, noting that “once a criminal prosecution has commenced, the defendant’s statement made to an undercover informant surreptitiously acting as an agent for the State are not admissible at trial for any reason, including the impeachment of the defendant’s testimony.”

In United States v. Blair, 67 M.J. 566 (C.G. Ct. Crim. App. 2009) the accused acting under an officer’s orders, drove a government vehicle to an airport for counseling. On two occasions a week apart, he brought Ku Klux Klan recruiting flyers with him and affixed one to the mirror in the men’s restroom in the airport. Though he was wearing civilian clothes both times, the members of the group counseling knew he was in the Coast Guard. Even though no one saw him post the flyers, he could have been seen by anyone who was in the restroom when he was posting them. Authorities later found that he pasted the flyers and further determined that he was in the Coast Guard. He was charged with, in relevant part, “wrongfully recruit[ing] for, solicit[ing] membership in, and promot[ing] the activities of the Ku Klux Klan,” “while publicly displaying an affiliation with the Armed Services,” which conduct was of a nature to bring discredit to the Armed Forces. He pled guilty and the military judge accepted his plea. The court had to decide if the accused’s plea was provident when the military judge did not elicit sufficient facts to show that he recruited for the Ku Klux Klan “while publicly displaying an affiliation with the Armed Services” and did not resolve inconsistencies brought out in sentencing that tended to demonstrate that he was not “publicly displaying an affiliation with the Armed Services” while he posted the flyers? The court upheld the conviction for this offense. First, there was a factual basis to sustain his plea. He admitted that he publicly displayed an affiliation with the Armed Services by driving a government vehicle and acknowledged that the counselors and attendees knew he was in the service. He posted the flyers at the airport because a large number of people would notice them. He also admitted that his conduct happened in public, was likely to bring the service into disrepute, and was wrongful. The court held that “publicly displaying an affiliation with the Armed Services” includes conduct that occurs in an area available to the public, whether or not another person is in fact present. In this case, there was a sufficient factual basis for his plea as there was the possibility that a member of the public who knew him to be in the Coast Guard could have readily noticed him affixing the flyers. Next, the court applied the standard provided by United States v. Wilcox, 66 M.J. 442 (C.A.A.F. 2008) that governs speech offenses charged under Art. 134. A court must first determine if the speech at issue is protected by the First Amendment. The CGCCA assumed that this speech is protected speech. Next, the Government must prove the elements of the offense at issue. Since this was a guilty plea, the elements were demonstrated based on his admissions that his conduct was public in nature and had a service discrediting effect. The court also noted that his conduct took place “on the ground,” rather than on-line. The CGCCA held that there was a strong possibility that a member of the public would notice the conduct and take it seriously. Lastly, the Wilcox test requires the court to “strike a balance between the essential needs of the armed service and the right to speak out as a free American.” This requires the court to “weight the gravity of the effect of the speech, discounted by the improbability of its effectiveness on the audience the speaker sought to reach.” Here, the conviction was warranted despite First Amendment concerns. Considering matters presented at sentencing, including the airport director’s testimony that it “made [him] sick” when he found out that the source of the flyers was an active duty Coast Guardsman, the CGCCA ruled that “the potential effects, both stated and inherent, of [the accused’s] conduct on the Coast Guard’s reputation outweigh [his] interest in his right to speak out while on government business at the airport.”

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 modify the image on his profile. In an Immigration and Customs Enforcement (ICE) investigation into a child pornography website to which the accused had access using a paid membership, ICE recovered 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 convicted, 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 Court had to consider two issues: Did the court-martial have jurisdiction over this offense of distributing an image of child pornography? More specifically, when did the alleged offense of “distribution of child pornography” occur in this case? The CAAF held that the court-martial had jurisdiction over the offense. Because the CPPA does not expressly define “distribute,” the Court considered 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. Using these sources, under the CPPA, distribution of child pornography via the Internet consists of two acts: (1) the posting 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. In this case, the accused uploaded the image to his Yahoo! profile before his entry on active duty. The CAAF reasoned that the profile serves 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 used the account during active duty and could have removed the image. The offense of distribution occurred 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. Ferguson, No. 37272, 2009 WL 2212070 (A.F. Ct. Crim. App. Jul. 15, 2009), the accused pled guilty, in relevant part, to indecent exposure under Article 134. While in an Internet chatroom with an undercover civilian police officer posing as a 14-year-old boy, the accused used a webcam to transmit images of himself masturbating and ejaculating. The AFCCA surmised from the charges and the plea colloquy that the accused’s acts and the transmission of the images occurred at the same time. The military judge admitted the plea. The issue in this case was whether the accused’s plea to indecent exposure was provident when the “exposure” took place via webcam to a law enforcement officer who was posing a minor and was “neither unsuspecting nor uninterested”? The Court ruled that the accused’s plea was provident. First, the exposure was in public view. In United States v. Graham, 56 M.J. 266 (C.A.A.F. 2002), the CAAF concluded, “in order for an exposure to be in the ‘public view,’ the member must be ‘unsuspecting and uninterested.’” In this case, the AFCCA observed that, in specific circumstances, “even ‘invited’ exposure might . . . still be considered indecent, and to a member of the public.” Based on the totality of the circumstances, the AFCCA concluded that, even though the officer was engaging in law enforcement duties, he was however a member of the public and the exposure was “in the public view.” Next, the Court held that the exposure was indecent based on the nature of the conduct, the continuing nature of the transmission in the case, and the fact that he was transmitting them to someone he believed to be a 14-year-old boy.

In Montejo v. Louisiana, 129 S.Ct. 2079 (2009) the defendant stood mute during the “72-hour hearing” and did not affirmatively invoke his right to counsel. The court determined that this was a valid waiver of the defendant’s Sixth Amendment right to counsel. The Supreme Court overturned Michigan v. Jackson, 475 U.S. 625 (1986), which held that any waiver of the defendant’s right to counsel after the defendant’s assertion of the right to counsel at an arraignment or similar proceeding was not valid. This system is unworkable in light of the fact that two dozen states do not require an affirmative invocation of the right to counsel, the appointment is automatic (including Louisiana). The court rules that the Sixth Amendment still guarantees the right to counsel at all “critical” stages of the proceedings, however that the Michigan v. Jackson rule presuming any waiver invalid is not required in view of Miranda v. Arizona, 384 U.S. 436 (1966), Edwards v. Arizona, 451 U.S. 477 (1981), and Minnick v. Mississippi, 498 U.S. 146 (1990). The Miranda-Edwards-Minnick line of cases can safeguard the accused from any unwanted badgering by police, though those cases were decided under the Fifth Amendment. Those cases are imported wholesale into the Sixth Amendment right to counsel protections. Mil. R. Evid. 305(e)(2) still gives military suspects with offense specific, post-preferral Sixth Amendment right to counsel protection. Where charges have been preferred, and the accused has not affirmatively invoked his right to counsel, then police can approach for interrogation and ask for a waiver.

In United States v. Delarosa, 67 M.J. 318 (C.A.A.F. 2009), the civilian law enforcement opened a homicide investigation after the appellant’s son died from shaken baby syndrome. A general court-martial, consisting of members, found the appellant guilty, contrary to his pleas, of aggravated assault on his infant son. The appellant was sentenced to a bad-conduct discharge, confinement for three months, forfeiture of all pay and allowances, and reduction to E-1. The Navy-Marine Corps Court of Criminal Appeals (N-MCCA) affirmed in an unpublished opinion. The CAAF had to determine the issue whether the appellant ambiguously invoked his right to counsel when advised of his Miranda rights by civilian law enforcement? The CAAF ruled that it was an ambiguous invocation of the appellant’s Miranda rights. Appellant had indicated that he wanted to talk to the detectives repeatedly, but then signed the waiver block “NO.” When asked to clarify, the appellant asked for a command representative, and then offered that the babysitter had been with his son, highlighting the ambiguous nature of his invocation. The Court cited Davis v. United States, 512 U.S. 452 (1994), for the principle that the invocation must be “sufficiently clear that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” The Court reiterated that police can “continue to pursue clarification until they obtain an affirmative waiver.”

In United States v. Matthews, 68 M.J. 29 (C.A.A.F. 2009), the CAAF held that Mil. R. Evid. 509 is applicable to military judges particularly where the military judge is sitting alone as the fact-finder. During trial, the defense witness invoked his Fifth Amendment rights thirteen times on cross-examination, despite the fact that he was testifying under a limited grant of immunity. The trial counsel was allowed by the military judge to comment on the witness’s invocation of the Fifth Amendment in rebuttal argument under the Mil. R. Evid. 512(a)(2) interests of justice exception. The military judge was called at the DuBay hearing to testify about his deliberative process and whether or not he made any comment himself about the invocation and whether he concluded any adverse inferences from the invocation that made the witness less credible. The ACCA ruled that this testimony was not prohibited by Mil. R. Evid. 509 and 606(b) as such rules only apply to members, not the military judge. The ACCA ruled that although the military judge erred by using Mil. R. Evid. 512(a)(2) to allow the trial counsel to comment on the witness’s invocation, that the error was harmless beyond a reasonable doubt. The CAAF also adopts the prevailing federal common law rule that protects the deliberative process of judges. The decision of the ACCA was set aside and remanded for review consistent with this opinion.

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.