Three Statuses, not Two: Why Larrabee Is the Wrong Rule for Nonprofessional SoldiersIn recent years, the military has court-martialed military retirees for conduct that occurred off base and after retirement. These courts-martial involve civilian offenses (e.g., sexual assault) when the servicemen have essentially returned to civilian life. Congress has authorized such prosecutions under the Uniform Code of Military Justice. But there have been challenges to whether Congress has the constitutional authority for such broad military jurisdiction. On Tuesday, the D.C. Circuit in Larrabee v. Del Toro upheld the constitutionality of Congress’s authorization, holding that a military retiree remained part of the land or naval forces. This is an incredibly difficult legal issue, and I am uncertain about the right bottom line. But I want to flag a very important constitutional issue that has gotten lost in the analysis: the special constitutional restrictions on subjecting nonprofessional soldiers to military law. A quick background on the facts of this case. Steven Larrabee is a former active-duty Marine. He retired from the military after twenty years. He worked as a civilian employee on a military base in Japan, and he also managed two bars part-time. After he had retired from the military, Larrabee sexually assaulted a bartender in Japan. Rather than let Larrabee face charges in a civilian Japanese court, the federal government prosecuted him under the UCMJ for sexual assault and for making a video recording of the assault. He pleaded guilty, but collaterally challenged his military conviction. In the Marine Corps, retirement occurs in two stages. First, after 20 years of service, a person may transfer to the “Fleet Marine Reserve.” Then, after 30 years of service (including time spent on the Fleet Marine Reserve list), a Marine may be moved to the retired list. Fleet Marine Reservists and retirees receive pensions for their prior service. The government calls this “retainer pay” for future service, but this is a euphemism. Although Fleet Marine Reservists are theoretically liable to be involuntarily called up in national emergencies, this practically never happens. Additionally, the “retainer pay” is clearly compensation for past services; the amount of the retirement pay is directly correlated with the years of prior service, not with the probability of future recall. In an opinion by Judge Neomi Rao, the D.C. Circuit held that the military could court-martial Larrabee even though he is retired. The court’s argument effectively has three premises. First, the constitutionality of subjecting a person to military jurisdiction “turns ‘on one factor: the military status of the accused’” (op. at 12, quoting Solorio v. United States, 483 U.S. 435, 439 (1987)), so a member of the Armed Forces is subject to military jurisdiction at all times, while a civilian is not. Second, a person falls within the “land or naval forces,” as that term is used in the Constitution, “if he has a formal relationship with the armed forces that includes a duty to obey military orders” (op. at 17). This is the majority’s test for whether to apply status-based jurisdiction. Third, Larrabee had a duty to obey military orders because he could be ordered to reenter active service in a war or national emergency and because he could be required to report for training for up to two months in any four-year period (op. at 25–26, citing 10 U.S.C. § 8385). Therefore, the court concludes, Larrabee was subject to military law at all times, despite being retired. The first premise, however, rests on a false dichotomy. When it comes to the military, Anglo-American law recognizes three statuses, not two: professional soldier, nonprofessional soldier, and civilian. Only professional soldiers may be subject to military law at all times, even when off duty, based solely on their “status” as soldiers. As full-time professionals, these servicemen are always in actual military service. (Being “in service” is not synonymous with “discharging official duties.”) At the opposite end, civilians are not amenable to military law and may not generally be tried by courts-martial. In between these two paradigms, however, is a third status: that of the nonprofessional soldier (e.g., a member of the militia). For these nonprofessional (part-time) soldiers, Anglo-American law has a functional relationship to military justice. Nonprofessional soldiers are subject to military law while in active service and in training; but they are subject to civilian law—and retain their full common-law rights—when they act as civilians. The Constitution’s text reflects this distinction. The Fifth Amendment provides for civilian criminal procedure protections but then has two different military exceptions: the status-based jurisdiction of the professional forces (an exception for “cases arising in the land or naval forces”) and the more functional test applied to nonprofessional soldiers (an exception “in the militia, when in actual service in time of war or public danger”). This distinction reflects centuries of Anglo-American practice, which has subjected professional forces to more extensive military jurisdiction than nonprofessional forces. The D.C. Circuit’s false dichotomy has further consequences. The court says that a person falls within the land or naval forces if the person “has a formal relationship with the armed forces that includes a duty to obey military orders.” But this is too simple. This test might be correct for regular (professional) soldiers; but it is not the right test for nonprofessional soldiers. Both kinds of soldiers have a formal relationship with the military, including the duty to obey orders. Some of the early cases Judge Rao cites involve courts-martial of militiamen, not professional soldiers. See Houston v. Moore, 18 U.S. (5 Wheat.) 1 (1820); Martin v. Mott, 25 U.S. (12 Wheat.) 19 (1827). Like Larrabee, these militiamen were enrolled in a military force pursuant to federal law. Also like Larrabee, they were obligated to obey military orders, including to report for duty if ordered. (In fact, the militiamen in these cases were subject to courts-martial for failing to report for duty.) But members of the militia cannot and have never been subject to sweeping status-based military jurisdiction that lets them be court-martialed for criminal conduct that occurs in their civilian life. The retention of civilian life under civilian law is a core aspect of the nonprofessional armed forces when its members are not in active service. With the proper distinction in view, things get more complicated: To determine whether Larrabee remained in the “land or naval forces,” as those terms were understood at the Framing, the court should have asked whether Larrabee remained a professional soldier or sailor. Today, many might write-off the possibility that Larrabee was effectively a militiaman because he was enrolled in the federal Armed Forces, not a state force or National Guard. But as I explain at length in my forthcoming article Deciphering the Armed Forces, the distinction between “armies” and “militia” is not one of federalism. Rather, the proper constitutional distinction between these forces has to do with professionalism: the “armies” (or “land forces”) are the regular, professional forces, while the militia comprises nonprofessional citizen-soldiers. The constitutional question about how far Congress may extend military law has become immensely complicated because of Congress’s efforts to evade the limitations of the Militia Clauses. The Constitution contemplates that Congress may exercise plenary authority over the armies and navy (the professional forces). But the Constitution gives Congress only a very limited power to call forth the militia, and power over the militia is shared with the states. To evade these limitations, Congress created the military reserve system in the twentieth century. These reservists are citizen-soldiers, and the organized reserves operate as a de facto nationally organized and controlled militia. Because reservists are essentially militiamen, Congress should not be allowed to extend military law to off-duty reservists. The federal reserve forces may be an unconstitutionally organized national militia; but for Fifth Amendment purposes, they should still be a militia. Here is where it gets even more complicated for Larrabee’s case. The Fleet Marine Reserve is not part of the organized reserves of part-time citizen-soldiers. Instead, it is a component to which retirees of the regular Marine Corps go. Many facts cut in favor of recognizing Larrabee as a member of the professional forces. The Fleet Marine Reserve is restricted only to former full-time Marines. These Marines entered service voluntarily. They have completed a full career in the Marines. Further, they have elected to remain on the rolls and continue to draw pay and hold their military rank. (Marines could elect for discharge, although they would forfeit their retirement pay by doing so.) But many facts also cut the other way. Once transferred to the Fleet Marine Reserve, these Marines do not have the power and duties ordinarily vested in regular forces. As Larrabee pointed out in his brief (written by Professor Steve Vladeck), these retirees “[l]ack authority to issue binding orders,” cannot be promoted, do not “participate in any military activities,” and may not serve on courts-martial (pp. 25-26). Functionally, they act as a pool of available emergency military manpower, not as professional soldiers. This makes Fleet Marine Reservists more like militiamen than regular soldiers. Making this issue even harder, Larrabee was a Marine, not an Army soldier. The Marines are a maritime land force. Constitutionally, I am uncertain whether they should fall within the “armies” or “navy.” (Federal law defines Marines to be part of the naval service, but it is less clear whether that is their status under the Constitution.) The militia is a force that fights on land, and for reasons I explain in this article (see p. 1001 n.56), I am skeptical that part-time seamen fall within the constitutional militia. Congress may have more power to govern part-time sailors (who still fall within the plenary federal naval power) than it has over part-time land soldiers (who are effectively militiamen). So Larrabee’s case might plausibly fall within Congress’s power to discipline members of the navy, even if Congress’s power would be more restricted over a comparably situated retired land soldier. For these reasons, I am deeply unsure what the correct judgment in this case should be. Laying that complication aside, however, one cannot properly analyze this legal issue without keeping in mind the status of nonprofessional soldiers. By omitting nonprofessional soldiers from their analysis, the majority announced a test that begged the critical question. That question was not whether Larrabee retained some affiliation with the Armed Forces. He obviously did. Instead, the critical question was whether Larrabee remained a member of the professional forces, despite having retired and returned to civilian life. Only if he remained a professional could the federal government apply military law to him solely on the basis of his status as a member of the Armed Forces. Robert LeiderAssistant Professor, George Mason University, Antonin Scalia Law School Yes, we have noticed Mellette is out and will have a comment by Monday. Word is that there are now several ongoing cases where the defense is asking the MJ to reconsider Mil. R. Evid. 513 rulings in light of Mellette. The trailer-park expands.
No. 22-0165/AF. U.S. v. Jonathan M. Martinez. CCA 39973. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issue: WHETHER, BY DENYING APPELLANT'S MOTION TO INSTRUCT THE PANEL THAT A GUILTY VERDICT REQUIRED UNANIMITY, THE MILITARY JUDGE VIOLATED APPELLANT'S FIFTH OR SIXTH AMENDMENT RIGHTS. No. 22-0196/NA. U.S. v. Isiah Anthony P. Causey. CCA 202000228. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is granted on the following issue: DO MILITARY DEFENDANTS HAVE A RIGHT TO UNANIMOUS VERDICTS FOR SERIOUS OFFENSES TRIED AT COURTS-MARTIAL, IN LIGHT OF RAMOS v. LOUISIANA, 140 S. CT. 1390 (2020)? United States v. Doyle. Appellant pled guilty to aggravated assault and was sentenced to nine months, a Dismissal, and a reprimand. During his first appeal Doyle raised the issue of of sentence inappropriateness and trial counsel error in arguing the dismissed charges and calling him a "monster." NMCCA did not agree, but they specified an issue with the factual basis for the plea to strangling when the term "is neither defined by the military judge nor used in a context to indicate grevious bodily harm was the "natural and probable consequence" of that action." NMCCA set aside the findings and sentence and authorized a rehearing. Doyle then pled guilty to the lesser offense of A&B; for which he was sentenced to 'no punishment.' The CA disapproved the adjudged 180 days confinement and TF IAW a PTA. On further appeal he has one issue. (1) Appellant’s commanding officer recommended nonjudicial punishment [NJP] after the State of Florida declined to prosecute Appellant; (2) the trial counsel then scheduled a meeting with the immediate superior in command [ISIC] accusing Appellant of attempted murder; and (3) the ISIC stated that while he had no plan to court-martial Appellant, the meeting made him believe the Navy had already made the decision that the case was going to court-martial. Appellant sought to attach a Declaration from the Commodore, [T]he Commodore states in the declaration (1) that he became aware of Appellant’s case while he was the Deputy Commodore; (2) that around the time NJP was recommended, members of Region Legal Service Office [RLSO] Northwest scheduled to meet with him; (3) that during the meeting, the RLSO trial counsel advocated in favor of prosecuting Appellant at court-martial and presented the Commodore with draft charges, which included attempted murder; (4) that prior to the meeting he did not believe Appellant’s case rose to the level of attempted murder and would not have recommended that the case proceed to an Article 32 hearing; (5) that the meeting left him feeling that the Navy had already made the decision that the case was going to court-martial; (6) that after the meeting he adopted the position that the legal process would play out and would provide an opportunity to clarify the matter; and (7) that he reached his decision to recommend an Article 32 hearing on his own and was not coerced by anyone to do so. NMCCA denied the request to attach the declaration citing Willman and Jessie. The court then holds that there is "no legal basis to grant Appellant’s motion to attach the declaration to the record and decline to consider it. Without the declaration, his claim is baseless." The court then went on to say that even if they had considered the declaration, there still would be no merit to the claim. The court finds that whatever went on was accepted practice for the interactions between a trial counsel and convening authority. And, the court points out it is not "a court of equity."
Affirmed. United States v. Calloway. In September 2017, the Appellant pled guilty to wrongful use of cocaine on divers occasions and wrongful use of 3,4-methylenediox- United States v. Calloway, No. ACM S32509 (f rev) 2 ymethamphetamine of and was sentenced to 30 days, 30 days HLWC, RiR-E-2, a BCD, and a reprimand. At Calloway's first appearance AFCCA set aside the sentence. A rehearing being considered "impractical" a sentence of "no punishment" was approved. On redocketing, the case was remanded again because, "the convening authority because the convening authority’s 4 May 2020 action purporting to approve the original findings was “not only erroneous and ultra vires, but confusing and misleading.” On redocketing, there being no assignments of error and no specificied issues, the findings and sentence were affirmed. United States v. Geier. Appellant pled guilty to wrongful use of controlled substances and dereliction of duty in vi 105 days and a BCD. He was sentenced in September 2020. The case was docketed with the court in January 2021 and was relatively quickly returned to correct post-trial errors. The Appellant had three assignments of error: (1) whether a plea agreement provision requiring the military judge to adjudge a bad-conduct discharge is legally permissible; (2) whether Appellant received adequate sentence relief for his pretrial confinement credit; and (3) whether his sentence is inappropriately severe. In re D.D. Charges were preferred July 29, 2022. United States v. Maurer. This is the fourth appearance at AFCCA the case having been remanded three times to correct post-trial errors. The findings and sentence are affirmed. The Appellant was sentenced in April 2019. United States v. Pacheco. In a GP, the Appellant was convicted of conspiracy to distribute marijuana, wrongful distribution of marijuana on divers occasions, and wrongful possession of marijuana. She was sentenced to effectively 45 days, RiR, and BCD. On appeal the sole issue is sentence appropriateness. United States v. Mar involves a "waive all waiveable motions" provision in a PTA. Mar got himself 12 months, RiR, and a BCD in exchange for a GP "dereliction of duty, two specifications of wrongful use of marijuana, two specifications of wrongful use of cocaine, one specification of wrongful use of psilocybin mushrooms, one specification of wrongful use of 3,4-methylenedioxymethamphetamine (ecstasy), one specification of wrongful distribution of marijuana, one specification of wrongful possession of marijuana, one specification of solicitation of distribution of ecstasy, and one specification of breaking restriction[.] Prior to trial the accused had been on restriction and later pretrial confinement. The court specified several issues. In light of Rule for Courts-Martial (R.C.M.) 705(c)(1)(b), did the military judge err when she: There is a lot to unpack in Nelson. The decision of the United States Navy-Marine Corps Court of Criminal Appeals (NMCCA) is hereby affirmed. This is one of the several "Bahrain Cases" where the Appellant was accused of soliciting prostitutes, "sex trafficking," and 133 (for failing to report others and a false official). Should his statements to NCIS have been suppressed? At trial, the MJ denied a suppression motion except for statements made about the UCMJ art. 133 allegation. With that, there being no other evidence, that charge was dismissed. The Appellant had agreed he was properly notified by NCIS of their suspicions he engaged with prostitutes, but he argued he was not properly put on notice that they suspected him of sex trafficking. The NMCCA set aside the 133 false official and affirmed. Any volunteers to write on this case? I didn't represent Nelson but I'm going to recuse myself for other reasons. Send a draft to [email protected], please. Cheers. Updated with some comments from anonymous but known to us writers.
The CADC has reversed the District Court judge 2-1.
www.cadc.uscourts.gov/internet/opinions.nsf/89582D07D5E9CBB78525889200515BFF/$file/21-5012-1957468.pdf
Marine A, outed. Throughought his court-martial a British Marine accussed of murder downrange was called Marine A, and his co-accused's were Marines B., C., D., and E.. Marine A's name became public after his conviction, but not the others. Airing on Channel 4 this Sunday is War and Justice: The Case of Marine A – a documentary special looking at Alexander Blackman, the first British soldier to be convicted of murder on a foreign battlefield since World War II. Lauren Morris, War and Justice: The Case of Marine A true story – where is Alexander Blackman now? July 28, 2022. British courts, inlcuding courts-martial can grant anonimity, sometimes called name suppression, to an accused, just as can be given to alleged victims. The authority comes from statute and extends to the press and media. New Zealand has something similar. Rule 153, Armed Forces (Court Martial) Rules, United Kingdom (2009) (“The court may give leave for any name or other matter given in evidence in proceedings to be withheld from the public.”). See also, Memorandum 11. Practice in Service Courts Collected Memoranda, Office of the Judge Advocate General (United Kindgom, (1 Sept. 2016); Fiona Jackson, What’s in a Name? Name Suppression and the Need for Public Interest, Research Paper Law & Social Policy, Victoria Univ. of Wellington (New Zealand) 2005 (discussing “name suppression” generally). "The [CAAF] has allowed a caption that described a writ petitioner only as a Navy judge advocate, in order to avoid potential reputational injury. Navy Judge Advocate v. Cedarburg, 12 M.J. 315 (C.M.A. 1981) (mem.);" see also, Doe v. Commander, Naval Special Warfare Command, 60 M.J. 455 (C.A.A.F. 2005) (mem.) and other cases discussed in para. 8.03[3], Fidell, Eugene R.; Fissell, Brenner M.; Sullivan, Dwight H.. Guide to the Rules of Practice and Procedure for the United States Court of Appeals for the Armed Forces. Whilst the charges against Marines D and E were dropped, Marines A (Blackman), B and C pleaded not guilty and in October 2012, an interim order prohibiting the identification of all five Marines was made on the grounds that there was "a real and immediate risk to their lives". Blackman was released in 2917 and later wrote an autobigpraphy, with a forward by Frederick Forsyth--Marine A: The Truth about the Murder Conviction. He says, 'This book chronicles my young life, my recruitment and training, my first deployments, and then my experiences in the Middle East, where I fought first in Iraq, and later completed two tours of duty in Helmand, Afghanistan - before finally confronting the final moment of my 2011 tour, and the killing of the Afghan insurgent which led to my conviction for murder. "The GW Hatchet, a student newspaper, first reported Thomas’s withdrawal from the fall teaching assignment Wednesday, citing an email that his longtime co-teacher, Judge Gregory E. Maggs of the U.S. Court of Appeals for the Armed Forces, sent to students enrolled in the class. 'Unfortunately, I am writing with some sad news: Justice Thomas has informed me that he is unavailable to co-teach the seminar this fall,' Maggs wrote, according to the Hatchet. 'I know that this is disappointing. I am very sorry.' ... Maggs, a former clerk for Thomas and for retired associate justice Anthony M. Kennedy, has told students the class will go forward. “The seminar has not been canceled but I will now be the sole instructor,” Maggs said in the email the Hatchet obtained. “For those of you still interested in taking the course, I assure you that we will make the best of the new situation.”" Full story here. Some context and opinion: The GW law administration should be credited for its position announced earlier: “Just as we affirm our commitment to academic freedom, we affirm the right of all members of our community to voice their opinions and contribute to the critical discussion that are foundational to our academic mission.” -BF
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