United States v. Katso
2017 CCA LEXIS 82
| A.F.C.C.A. | 2017Background
- Appellant, an Airman, was convicted at a general court-martial of aggravated sexual assault, burglary, and unlawful entry; sentence: dishonorable discharge, 10 years confinement, forfeiture of pay.
- The Air Force CCA (this court) initially set aside and dismissed the aggravated sexual assault and burglary findings because the Government’s DNA expert repeated testimonial hearsay, and dismissed the unlawful entry specification for failing to state an offense (Katso I).
- The Judge Advocate General certified the expert-witness issue to the CAAF, which reversed on that point and remanded (Katso II); the CAAF did not address the unlawful-entry dismissal.
- On remand Appellant raised five issues including expert testimony admissibility, failure-to-state-an-offense for unlawful entry, duplicative charges, confinement-pending-appeal procedural errors, and the reasonable-doubt jury instruction.
- This court: (1) followed the CAAF on the expert issue (no relief); (2) adhered to its prior holding dismissing the unlawful-entry specification; (3) reassessed and affirmed the sentence as adjudged; (4) held the Government violated Miller by failing to hold a timely post-certification continued-confinement review and awarded administrative day-for-day credit; and (5) found no plain error in the reasonable-doubt instruction.
Issues
| Issue | Appellant's Argument | Government's Argument | Held |
|---|---|---|---|
| Admissibility / Confrontation — DNA expert testified about tests not personally performed | Expert testimony repeated testimonial hearsay, violating confrontation | CAAF resolved against Appellant; expert testimony admissible as presented | No relief — CAAF decision controls; issue rejected by this court |
| Failure to state offense — unlawful entry specification omitted service-discrediting element | Specification insufficient to allege offense; must be dismissed | Ask court to revisit and reinstate specification | Court adheres to its prior ruling: unlawful-entry charge set aside and dismissed with prejudice |
| Continued confinement pending appeal — Miller review timing and remedy | Government failed to provide timely Miller review after TJAG certification; seeks credit for period of unlawful confinement | Government contends Miller inapplicable or delay harmless; later reviewing officer upheld confinement | Miller applies; remedy is day-for-day administrative credit for failure to provide review within 7 days of certification; Appellant credited 366 days (court later directs 365 days credit) |
| Reasonable-doubt instruction — judge’s formulation improperly directed verdict | Instruction improperly told members to find guilty if "firmly convinced" — conflicts with Supreme Court limits on judge-directed verdict | No contemporaneous objection; Government cites CAAF precedent upholding similar instruction | No plain error; CAAF precedent (McClour) controls and instruction stands |
Key Cases Cited
- United States v. Katso, 74 M.J. 273 (C.A.A.F. 2015) (CAAF decision certifying expert issue and remanding)
- United States v. Miller, 47 M.J. 352 (C.A.A.F. 1997) (Miller rule: release or continued-confinement hearing upon TJAG certification)
- Moore v. Akins, 30 M.J. 249 (C.M.A. 1990) (service-member entitled to release absent government showing to continue confinement)
- United States v. Winckelmann, 73 M.J. 11 (C.A.A.F. 2013) (standards for sentence reassessment)
- United States v. Kreutzer, 70 M.J. 444 (C.A.A.F. 2012) (discussion of inchoate sentences and Miller’s scope)
- United States v. Snelling, 14 M.J. 267 (C.M.A. 1982) (factors for sentence appropriateness)