Brenner Fissell

EIC

U.S. Supreme Court

The Courts of Appeals have divided over the meaning of ACCA’s “occasions” clause. Some Circuits, like the Sixth, deem the clause satisfied whenever crimes take place at different moments in time—that is, sequentially rather than simultaneously. Other Circuits undertake a more holistic inquiry, considering not merely the precise timing but also other circumstances of the crimes. We granted certiorari, 592 U. S. ___ (2021), to resolve that split of authority.

We think not. The ordinary meaning of the word “occasion”—essentially an episode or event—refutes the Government’s single-minded focus on whether a crime’s elements were established at a discrete moment in time. And ACCA’s history and purpose do so too: The origin of the “occasions” clause confirms that multiple crimes may occur on one occasion even if not at the same moment. Wooden’s night of crime is a perfect case in point. His one-after-another-after another burglary of ten units in a single storage facility occurred on one “occasion,” under a natural construction of that term and consistent with the reason it became part of ACCA. 

Don Christensen

When there is a question about a juror’s or member’s fairness and impartiality, the civilian and military appellate courts have made it clear that, when determining whether to grant a mistrial, the trial courts must consider the “appearance of fairness” and the public’s “perception” of the process.  Commisso, 76 M.J. at 321. 

     a.  This Court harbors no doubt that if members of the public learned that a member made statements similar to those made by LTC JK at the open door meeting, then that would negatively impact the public’s perception of the fairness and impartiality of the court-martial.  In other words, a member’s statement that the convening authority put him on the panel because he “gets things done” would undermine an informed public’s confidence of that member’s objectivity as a court member and the fairness of the trial itself. 

     b.  When making this finding, the Court need not speculate on this issue.  When asked about his perception of the fairness and impartiality of this court-martial if a panel member said the things attributed to LTC JK, SFC BK credibly, bluntly, and astutely testified, “That wouldn’t seem fair to me.  It’d be like playing cards and the dealer has stacked the deck,” or words to this effect. 

Brenner Fissell

EIC

Court of Appeals for the Armed Forces

Broadly speaking, Military Rule of Evidence (M.R.E.) 513(a) establishes a privilege that allows a patient to refuse to disclose confidential communications between the patient and his or her psychotherapist if those communications were made for the purpose of diagnosing or treating the patient’s mental or emotional condition. M.R.E. 513(d)(3) creates an exception to that privilege when a service regulation or state or federal law imposes a duty on the psychotherapist to report certain information derived from those communications, such as when the patient alleges child sexual abuse. We hold that  this “duty-to-report” exception makes discoverable the information that was required to be reported to state authorities. We also hold, however, that the “duty-to-report” exception, standing alone, does not make discoverable the underlying confidential communications between the patient and the psychotherapist. In the instant case, we conclude that the lower court properly construed the psychotherapist-patient privilege and its exceptions, and that the military judge acted within his discretion in denying Appellant’s request for in camera review of the victim’s psychiatric records. We also conclude that Appellant was not denied the effective assistance of counsel. We therefore affirm the judgment of the United States Navy-Marine Corps Court of Criminal Appeals (NMCCA).

Air Force Court of Criminal Appeals

​Appellant raises two issues on appeal. The first is whether trial counsel’s sentencing argument was improper. The second is whether Appellant’s sentence was inappropriately severe.

​This is a close call in light of the CAAF’s conclusion in Hardison that recruitment documents pertaining to drug policy are generally not admissible as evidence in aggravation, and we encourage trial counsel not to push the limits on this front. If evidence that an accused signed an acknowledgement regarding a service drug-abuse policy is inadmissible as evidence in aggravation, the corollary would seem to be that it is inadmissible to argue that such evidence amounts to an aggravating factor warranting a higher sentence.
. . . 
​One could question how compelling trial counsel’s argument was based on the thin support for concluding Appellant had in fact endangered his fellow Airmen, but an uncompelling argument does not equate to an impermissible one. 

 Air Force investigators conducted interviews with Appellant’s family, co-workers, supervisors, and instructors, and found that Appellant had provided false information to his mental health providers regarding some of his experiences.
. . .
​Appellant contends that his trial defense counsel were ineffective in that they failed to present information or argue evidence of his PTSD diagnosis. Specifically Appellant argues that his trial counsel were deficient by not using his PTSD diagnosis to show: (1) how it “affected his cognitive and emotional abilities,” and (2) “how it could have mitigated the offenses for which he was convicted.” Appellant asks that we find his counsel ineffective and reevaluate his sentence. We find no merit to Appellant’s claims and determine that no relief is warranted.

Pending Appellate Cases

​Appellant contends the Government failed to prove that the charged possession, distribution, and production of child pornography were prejudicial to good order and discipline in the armed forces. He notes that conduct punishable as prejudicial to good order and discipline under Article 134, UCMJ, “is confined to cases in which the prejudice is reasonably direct and palpable.” MCM, pt. IV, ¶ 60.c.(2)(a); see also United States v. Cendejas, 62 M.J. 334, 340 (C.A.A.F. 2006). Appellant suggests his conduct had little or no “nexus with the military . . . at all” because those involved, other than him, were civilians. 

United States Supreme Court

Court of Appeals for the Armed Forces

The granted issues in this case present two questions: (1) whether the Government violated Appellant’s right to a speedy trial under either Rule for Courts-Martial (R.C.M.) 707 or the Sixth Amendment of the United States Constitution; and (2) whether the United States Army Court of Criminal Appeals (CCA) erred by affirming a portion of Appellant’s sentence that had not been approved by the convening authority. We hold that there was no speedy trial violation here because the military judge did not abuse his discretion when he ruled that certain days were excludable for speedy trial purposes under R.C.M. 707, and he did not err when he ruled that Appellant could not prevail on his Sixth Amendment claim because Appellant demonstrated no prejudice pursuant to an analysis under Barker v. Wingo, 407 U.S. 514 (1972). However, we further hold that the CCA erred  ​in affirming a sentence of forfeiture of all pay and allowances because the convening authority had not approved that particular portion of Appellant’s sentence.

 A general court-martial consisting of officer members convicted Appellant of four specifications of sexual assault of a child, one specification of extortion, and one specification of producing child pornography. Appellant was sentenced to a dishonorable discharge, confinement for twelve years, forfeiture of all pay and allowances, and reduction to E-1.

​Whether the military judge erred in allowing the Government to make a major change to a specification, over defense objection—almost tripling the charged time frame—after the complaining witness’s testimony did not support the offense as originally charged and the prosecution had rested its case.

​We answer the granted issue in the affirmative. Specifically, we hold that under the totality of the circumstances presented here, enlarging the charged time frame of one of the offenses by 279 days—after arraignment and over defense objection—was “likely to mislead the accused as to the offenses charged.” Rules for Courts-Martial (R.C.M.) 603(a). 1 This amendment to the charge sheet thus constituted a “[m]ajor change” which the Government was not authorized to make without withdrawing, amending, and preferring the specification anew. R.C.M. 603(a), (d). Because the Government failed to take these required steps, the decision of the CCA is reversed as to the Specification of Charge II and as to the sentence. 

Air Force Court of Criminal Appeals

Philip D. Cave, Don Christensen, Eugene R. Fidell, Brenner M. Fissell, Dan Maurer ​

Alan Cunningham

Court of Appeals for the Armed Forces

In Davis, we noted that we review a matter for plain error “ ‘when there is a new rule of law, when the law was previously unsettled, and when the [trial court] reached a decision contrary to a subsequent rule.’ ” 79 M.J. at 331 (first alteration in original removed) (second alteration in original) (quoting United States v. Oliver, 76 M.J. 271, 274 (C.A.A.F. 2017)). At the time of Appellant’s trial, it was unsettled whether the phrase “in the presence of” used to define the term “lewd act” in Article 120b(h)(5)(D), UCMJ, required the child to be aware of the lewd act. The statute did not define “in the presence of” and there was no case law interpreting this phrase in Article 120b(h)(5)(D), UCMJ. Thus, there was no binding precedent demonstrating that “in the presence of” required victim awareness. Accordingly, trial defense counsel’s failure to object was not waiver given the unsettled nature of the law at the time of Appellant’s court-martial.

Navy-Marine Corps Court of Criminal Appeals

​The manner in which this case was prosecuted invites more questions than were answered regarding this particular offense, and causes this Court to find the evidence insufficient to support a conviction. Appellant’s conviction for abusive sexual contact essentially rests on the testimony of Ms. Sierra and Mrs. Mike, which is conflicting in a number of material areas and also presents significant credibility issues. We are therefore not convinced beyond a reasonable doubt that Appellant committed abusive sexual contact upon Ms. Sierra by touching, directly or through the clothing, her genitalia.

Cheers, Phil Cave