Justia Military Law Opinion Summaries

The Eighth Circuit affirmed the district court's dismissal of a habeas corpus petition under 28 U.S.C. 2241 where petitioner was convicted in 2012, after trial by general court-martial, of rape committed in 1998. At the time of petitioner's conviction and direct appeals, there was no statute of limitations for prosecution of rape under the Uniform Code of Military Justice (UCMJ). In 2018, the Court of Appeals for the Armed Forces held for the first time that a five-year statute of limitations applied to rape in United States v. Mangahas, 77 M.J. 220, 222-24 (C.A.A.F. 2018). However, in United States v. Briggs, 2020 WL 7250099, at 2 (U.S. Dec. 10, 2020), the Supreme Court held that there is not a statute of limitations under the UCMJ for rapes committed between 1986 and 2006. Therefore, the court held that petitioner's conviction was not untimely. View "Hill v. Rivera" on Justia Law

Under the Uniform Code of Military Justice (UCMJ), a military offense, “punishable by death, may be tried and punished at any time without limitation,” 10 U.S.C. 843(a). Other military offenses are subject to a five-year statute of limitations. Three military service members, each convicted of rape at a time when the UCMJ provided that rape could be “punished by death” argued that the five-year limitations period barred their prosecutions because the Supreme Court held in 1977 (Coker v. Georgia) that the Eighth Amendment forbids a death sentence for the rape of an adult woman.Reversing the Court of Appeals for the Armed Forces, the Supreme Court held that the prosecutions were timely. The UCMJ is a uniform code. The most natural place to determine whether rape was “punishable by death” within the meaning of section 843(a) is section 920’s directive that rape could be “punished by death,” regardless of the UCMJ’s separate prohibition on “cruel or unusual punishment.” If “punishable by death” requires consideration of all applicable law, the deadline for filing rape charges would be unclear. That deadline would depend on an unresolved constitutional question about Coker’s application to military prosecutions, on "evolving standards of decency” under the Eighth Amendment, and on whether UCMJ section 855 independently prohibits a death sentence for rape. The ends served by statutes of limitations differ from those served by the Eighth Amendment or UCMJ 855. Factors legislators may find important in setting a limitations period—such as the difficulty of gathering evidence and mounting a prosecution—play no part in an Eighth Amendment analysis. View "United States v. Briggs" on Justia Law

Al Bahlul, a Yemeni national, was Osama bin Laden’s head of propaganda at the time of the September 11 attacks. After he was captured in Pakistan, Al Bahlul was convicted by a military commission in Guantanamo Bay of conspiracy to commit war crimes, providing material support for terrorism, and soliciting others to commit war crimes. The D.C. Circuit vacated two of his three convictions on ex post facto grounds. On remand, the Court of Military Commission Review, without remanding to the military commission, reaffirmed Al Bahlul's life sentence for the conspiracy conviction.The D.C. Circuit reversed and remanded. The CMCR failed to apply the correct harmless error standard, In reevaluating Al Bahlul’s sentence, the CMCR should have asked whether it was beyond a reasonable doubt that the military commission would have imposed the same sentence for conspiracy alone. The court rejected Al Bahlul’s remaining arguments. The appointment of the Convening Authority was lawful; there is no reason to unsettle Al Bahlul I’s ex post facto ruling, and the court lacked jurisdiction in an appeal from the CMCR to entertain challenges to the conditions of Al Bahlul’s ongoing confinement. View "Al Bahlul v. United States" on Justia Law

The Second Circuit affirmed defendant's conviction for failure to register under the Sex Offender Registration and Notification Act (SORNA). Defendant was convicted of raping another member of his platoon in violation of Article 120 of the Uniform Code of Military Justice and, after he was discharged from military service, he was designated as a Level Two sex offender.The court held that 34 U.S.C. 20911(5)(A)(iv)'s delegation to the Secretary of Defense to designate which military offenses constitute "sex offenses" under the statute does not violate the non-delegation doctrine. The court also held that the Secretary of Defense did not violate the Administrative Procedure Act in designating military offenses as sex offenses under SORNA. View "United States v. Mingo" on Justia Law

The Court of Appeal held that the trial court erred by summarily denying defendant's petition for recall and resentencing without following the required procedures of Penal Code section 1170.91. Pursuant to section 1170.91, sentencing courts must consider any trauma, substance abuse, and mental health problems caused by a defendant's service in the United States military as mitigating factors weighing in favor of a low-term sentence. In this case, defendant filed a petition after the statute's effective date; stated that he had served in the Marine Corps and ended up suffering from "serious mental health issues and substance abuse addiction" as a result; and attached extensive Marine Corps service records and CDCR mental health records. Therefore, as the People acknowledged, defendant's petition for resentencing met the statutory requirements under section 1170.91, subdivision (b). View "People v. Bonilla-Bray" on Justia Law

The DC Circuit denied petitions for writs of mandamus seeking vacatur of all orders issued by the former presiding military judge because of the appearance of partiality. Petitioners are being tried before a military tribunal for their alleged roles in the September 11th terrorist attacks.The court held that it was neither clear nor indisputable that the military judge should have recused himself. The court explained that the military judge's career and relationships do not constitute reasonable bases for the extraordinary remedy of mandamus. View "In re: Mustafa Al Hawsawi" on Justia Law

Petitioner, a legal permanent resident, sought review of an agency order of removal based on a finding that he committed an "aggravated felony" within the meaning of 8 U.S.C. 1101(a)(43)(G). Under section 1101(a)(43)(G), to establish an aggravated felony, the government must show by clear and convincing evidence that a noncitizen committed a "theft offense" that resulted in a term of imprisonment of "at least one year." Petitioner was a member of the U.S. Army when he pleaded guilty to four violations of the Uniform Code of Military Justice (UCMJ), one of which was larceny of military property. Under the military's customary practice of unitary sentencing at the time, the military judge issued a general sentence that imposed a punishment for all four of petitioner's convictions for 30 months' confinement.The Second Circuit held that, under the military's traditional unitary sentencing scheme, a military judgment in which a single sentence of confinement is imposed in connection with multiple counts of conviction may not be presumed to be equivalent to equal, full‐term, concurrent sentences as to each count of conviction. Because the government has not carried its burden, the court granted the petition for review and remanded for further proceedings. View "Persad v. Barr" on Justia Law

Wade, an active duty member of the Army Special Forces Group and affiliated with the Naval Postgraduate School in Monterey, was charged with misdemeanor driving under the influence (DUI) with a blood alcohol concentration above 0.15 percent. The court denied his request to enter a pretrial diversion program under the military diversion statute, Penal Code section 1001.80. The court of appeal directed the trial court to reconsider. The trial court departed from the principles behind Penal Code section 1001.80 by focusing on the nature of the offense and applying the felony sentencing guidelines without apparent consideration of the rehabilitative purpose of diversion. The court abused its discretion by denying Wade’s request using criteria which the Legislature implicitly rejected; the Legislature expressly intended to include DUI offenses within the scope of diversion. View "Wade v. Superior Court" on Justia Law

The Guard Recruiting Assistance Program (G-RAP), designed to increase recruiting to the Air National Guard during the “War on Terror” was run by Docupak, a private corporation. Docupak selected and trained Recruiting Assistants (RAs) to find and direct potential airmen to full-time recruiters. The program paid a $1,000 pre-loaded gift card upon actual enlistment of a potential airman and another $1,000 upon the airman’s completion of training. The RAs were to identify individuals that were not already working with a full-time recruiter and were prohibited from splitting the payment with full-time recruiters. Osborne, a full-time recruiter, was accused of referring names of pre-existing recruits to RA Andolsek so that they could claim the incentive, with kickbacks to Osborne. Osborne was charged with aiding Andolsek in embezzling from the Department of Defense, 18 U.S.C. 641; 18 U.S.C. 2, which “caused” the Department to reimburse Docupak for $9,000. Andolsek pleaded guilty and testified against Osborne. Osborne argued that the funds were stolen from a private contractor, so they only violated Docupak’s internal policy, not a federal regulation. The Sixth Circuit reversed Osborne’s conviction. No reasonable jury could have found that the funds were something of value to the government beyond a reasonable doubt, given the evidence of control. The government did not retain a reversionary interest in the funds and imposed few restrictions. Docupak gave the government access to information, but the government did not retain the right to conduct audits. View "United States v. Osborne" on Justia Law

After their three-year-old adopted son died, U.S. Army Major John Jackson and his wife, Carolyn, were convicted of conspiracy to endanger the welfare of a child and endangering the welfare of a child. The New Jersey law offenses were “assimilated” into federal law under the Assimilative Crimes Act, 18 U.S.C. 13(a), which “borrows” state laws to fill gaps in federal law for crimes committed on federal enclaves. The Jacksons’ crimes occurred within the special maritime and territorial jurisdiction of the U.S. (Picatinny Arsenal Installation). Using the offense guidelines for assault, U.S.S.G. 2A2.3, and aggravated assault, U.S.S.G. 2A2.2, the Probation Office calculated both defendants’ Guidelines range as 210-262 months. The government calculated a range of 292-365 months. The court declined to calculate the applicable sentencing ranges under the U.S.S.G., reasoning that there was no “sufficiently analogous” offense guideline, sentenced Carolyn to 24 months of imprisonment plus supervised release, and sentenced John to three years of probation plus community service and a fine. The Third Circuit vacated the sentences, adopting an “elements-based” approach, but concluding that the assault guideline is “sufficiently analogous” to the Jacksons’ offenses. The district court failed to make the requisite findings with respect to the Guidelines calculation and the statutory sentencing factors. While the court could consider what would happen if the Jacksons had been prosecuted in state court, it focused on state sentencing practices to the exclusion of federal sentencing principles. The sentences were substantively unreasonable. View "United States v. Jackson" on Justia Law