Court of Appeals for the Armed Forces
H.K. v. Eichenberger. Writ Appeal petition denied. here is a link to the AFCCA Order in the case.
United States v. Quezada. A "false exculpatory statement" case. Judge Maggs writes for a unanimous court.
The standard “false exculpatory statements” instruction informs the members that if the accused makes a statement tending to establish his or her innocence, and the statement is later shown to be false, the members may consider “whether this circumstantial evidence points to consciousness of guilt.”
Counsel objected to the instruction but did not propose a "tailored instruction" or request any "other modification of the instruction."
NMCCA recognized that the false exculpatory statements instruction is not appropriate for general denials of criminal wrongdoing. As this Court explained in [United States v.] Colcol, [16 M.J. 479 (C.M.A. 1983),] “in order to decide that an accused’s general denial of illegal activity is false, the factfinder must decide the very issue of guilt or innocence; and so the instruction would only tend to produce confusion because of its circularity.” 16 M.J. at 484. But the NMCCA found this restriction on using the false exculpatory statements instruction inapplicable in this case[.]
Appellant had made a Hills-like argument which NMCCA did not address, so CAAF does.
(Note to appellate advocates. "[S]ome of Appellant’s arguments appear to extend beyond the specific objection to the instructions that Appellant made at trial. The Government, however, has not argued that the Appellant forfeited any of the arguments that he now raises. Accordingly, given the lack of any objection by the Government, and our ultimate conclusion that Appellant’s arguments have no merit, we do not address the plain error standard.")
Appellant argued the instruction undermined the presumption of innocence, the failure to tailor the instruction was prejudicial, the instruction improperly introduced the specter of propensity evidence; and " even if the alleged false statement was not a general denial of guilt, the falsity of the statement nonetheless turns on the ultimate question of his guilt or innocence."
In re Cosio. Notice is given that a petition for extraordinary relief in the nature of writ of error coram nobis and mandamus was filed under Rule 27(a) on this date. See below under AFCCA.
Full text here. Below are two interesting passages:
"Unfortunately, section 1032 of the Act continues to bar the use of funds to transfer Guantánamo Bay detainees to the custody or effective control of certain foreign countries, and section 1033 of the Act bars the use of funds to transfer Guantánamo Bay detainees into the United States unless certain conditions are met. It is the longstanding position of the executive branch that these provisions unduly impair the ability of the executive branch to determine when and where to prosecute Guantánamo Bay detainees and where to send them upon release. In some circumstances these provisions could make it difficult to comply with the final judgment of a court that has directed the release of a detainee on a writ of habeas corpus. In addition, the limitations in section 1032 of the Act constrain the flexibility of the executive branch with respect to its engagement in delicate negotiations with foreign countries over the potential transfer of detainees and thus may in some cases make it difficult to effectuate the transfer of detainees in a manner that does not threaten national security. I urge the Congress to eliminate these restrictions as soon as possible.
Finally, I oppose the use of open-air burn pits, which is prohibited in contingency operations by Public Law 111-84, section 317 (10 U.S.C. 2701 note). I request that the Secretary of Defense seek Presidential approval prior to exercising the exemption authority to this prohibition added by section 316 of the Act."
Seasonal greetings everyone. Santa's Elve's Advanced Landing Team (SEAL Team RUDOLPH), has launched a seek and collect mission.
Please nominate the Top Ten cases for 2021. The ROE are rather simple.
If you nominate more than one, please rank them.
For those you nominate, please give a short summary of why you think they merit appearing on Santa's list.
You can nominate as a comment here, or send to firstname.lastname@example.org.
As a secondary mission, SEAL Team-RUDOLPH is looking for nominations to the top ten EVENTS in 2021.
The ROE are the same as for the Top Ten Cases.
Comment: "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past." -- Holmes, The Path of the Law
Court of Appeals for the Armed Forces
United States v. Tinsley. The appellate briefs are available here for more background on the case.
This seems to be the correct result. Had CAAF decided that the MJ erred in granting a continuance request, they would by implication punished an accused for the failure of the government to provide timely discovery.
This Court previously reviewed this case in 2019. United States v. Cooper, 78 M.J. 283 (C.A.A.F. 2019). At that time, we concluded that Appellant/Cross-Appellee Yeoman Second Class (YN2) Cooper had waived his right to request individual military counsel (IMC). Id. at 287. We then remanded the case for further review. Id. On remand, the United States Navy-Marine Corps Court of Criminal Appeals (NMCCA) held that YN2 Cooper had received ineffective assistance of counsel. United States v. Cooper, 80 M.J. 664, 666 (N-M. Ct. Crim. App. 2020). As a consequence, the NMCCA set aside the findings and sentence in this case and authorized a new trial. Id.
The Judge Advocate General of the Navy, believing that the NMCCA had reached the ineffective assistance of counsel issue in an improper manner, then certified the following question to this Court: “Did the lower court err applying United States v. Chin, 75 M.J. 220 (C.A.A.F. 2016), (a) as a prerequisite to considering ineffective assistance of counsel, and (b) to disregard the knowing, voluntary, and R.C.M. 905 waivers, of individual military counsel?” United States v. Cooper, 81 M.J. 135 (C.A.A.F. 2021). YN2 Cooper also has appealed, asserting alternative grounds for affirming the NMCCA’s decision.1
With passage of the NDAA FY 22 out of Congress, Dan Maurer has put together a guide to the changes that will come into effect about two years from now, assuming President Biden signs.
The commander discretion issue is now moot. Commanders will now have referral authority over only a minority of GCM cases. Can we talk about something else now?
This is an attempted first look at how past DoN cases might fit as a covered offense under the FY22 NDAA. (Still working on some of the USMC.) I have done this only with publicly available information as if a member of the public were looking in.
So I took numbers from the Navy's publicly available Results of Trial--January to October 2021. I also took a different look using the NMCCA's Court Filings & Records.
BLUF: Almost 80% of Navy GCMs were for a covered offense, in which about 42% had a PTA. And about 26% resulted in an acquittal--according to the Navy Results of Trial reports. From the publicly available NMCCA Records of Trial for 2021 we find that about 35% of the GCM/SPCMs (across the Navy and USMC) received at NMCCA included a covered offense.
Some initial comments.
1. The information is presented differently, and incompletely, in two available sources, so I would caution about making decisions based on publicly available data only.
2. A looker would be making generalizations.
4. 5 of the member acquittals one month were in the same jurisdiction (Region Southeast--covering Jacksonville, Mayport, and Pensacola).
5. While an accused faired better on the merits with members, I did not see a significance between MJA and members for sentencing.
6. The records of trial require some understanding of the process. There are convictions simply listed as an Art. 134, and only when you review the records do you find those with a covered offense.
The Kevin J. Barry Writing Award for Excellence honors an outstanding scholarly article on military legal topics published in a calendar year.
The award is named for an outstanding scholar and peerless advocate of reform: Kevin J. Barry, a founder and longtime director of NIMJ. Captain Barry retired from the Coast Guard after 25 years of service that included duty as an operations officer, navigator, trial and defense counsel, staff judge advocate, and trial and appellate judge.
As a lawyer, scholar, citizen, and gentleman, Kevin Barry is a model for those who work to improve military justice.
The award carries a $250 prize and certificate.
Articles published in an academic journal, law review, or similar forum during 2021 are eligible for that year’s award (including articles dated in an earlier year but which actually appear later; some law journals take so long to release their issues that an article dated 2017 might actually appear in 2018).
This award is intended to recognize substantial scholarship and will be evaluated for “excellence in military legal studies,” with the winner selected by a committee of law professors and practitioners, keeping in mind NIMJ’s mission to improve public understanding of military justice.
If no article is deemed appropriate for the award, the committee may elect not to make an award for that year. If more than one article is deemed worthy of recognition, the committee may honor such articles with honorable mention.
Copies of the winning and honorable articles will be published on NIMJ’s website if permitted by the author. Interested scholars should submit their articles to the NIMJ email (email@example.com) with details of its publication, the author’s name, email, and phone number no later than midnight on 31 December 2021.
Jeff Schogol, The Marine Corps may have blown its case against special operators accused of killing a former Green Beret. Task & Purpose, December 14, 2021. Basically, the Deputy for the Judge Advocate Division is alleged to have committed UCI.
One of the Marine Corps’ top lawyers is being accused of interfering in the case of a Navy corpsman and two Marine Raiders who have been charged with the death of an American contractor after a 2019 altercation in Iraq.
The reporting appears to be based partly on affidavits and motions filed in court.
Readers will be comforted to know that "Brenden" was disabused by editor Marcus Fulton in a later tweet.
"We were appalled but hardly surprised to learn that the head uniformed attorneys, known as the judge advocate generals or TJAGs, for some of the military services are lobbying Congress to remove the provision that would place the new Office of the Special Victim Prosecutor under the service secretaries and instead allow the TJAGs to retain control. To be clear, it is the TJAGs who have vociferously opposed meaningful changes to the military justice system for more than a decade. This is yet another attempt to undermine reform, no matter the damage or cost to morale, readiness, and order. And, it shows utter contempt for the principle of civilian control of the military."
Military justice reform must ensure Special Victim prosecutors are under civilian control
By Jackie Speier and Lynn Rosenthal
UPDATE: Prof. Dunlap today takes these authors to task for using the term "lobbying," and for the general notion that communication lines should be shut between TJAGs and Congress -- "To be clear, Cong. Speier and Ms. Rosenthal have every right to vigorously advocate their plan, but Congress should also welcome the views of those still-serving who may dissent from all or part of it. It is only through open-minded dialogue can we hope to devise what is really the best way to handle what everyone agrees is a critically important issue for America’s military."
Comment: I agree with Prof. Dunlap's words in the excerpt above. However, we must be careful not to convert "open-minded dialogue" into a presumption that one voice (which happens to be the unelected voice) is correct on the basis of "expertise." He has done that in the past, and that is an inversion of civilian control norms--something I said last summer.
Civilian Deaths Mounted as Secret Unit Pounded ISIS--
An American strike cell alarmed its partners as it raced to defeat the enemy.
"As bad strikes mounted, the four military officials said, Talon Anvil’s partners sounded the alarm. Pilots over Syria at times refused to drop bombs because Talon Anvil wanted to hit questionable targets in densely populated areas. Senior C.I.A. officers complained to Special Operations leaders about the disturbing pattern of strikes. Air Force teams doing intelligence work argued with Talon Anvil over a secure phone known as the red line. And even within Talon Anvil, some members at times refused to participate in strikes targeting people who did not seem to be in the fight."
"[T]he Delta operators were under enormous pressure to protect allied ground troops and move the offensive forward, the former task force member said, and felt hobbled by the safeguards. So in early 2017, they found a way to strike more quickly: self-defense.
Most of Operation Inherent Resolve’s restrictions applied only to offensive strikes. There were far fewer restrictions for defensive strikes that were meant to protect allied forces under imminent threat of harm. So Talon Anvil began claiming that nearly every strike was in self-defense, which enabled them to move quickly with little second-guessing or oversight, even if their targets were miles from any fighting, two former task force members said."
Army Court of Criminal Appeals
United States v. Thompson. Appellant pled guilty in accordance with a PTA to conspiracy to murder with premeditation and as an aider an abettor to premeditated murder. He was sentenced to Life and a DD.
On appeal ACCA sets aside the finding of x because the plea was improvident. A rehearing is allowed. Some briefs are available here. The issue is whether he had a "guilty mind." Or as ACCA says, "Actus non facit reum, nisi mens sit rea, 'the act alone does not amount to guilt; it must be accompanied by a guilty mind."' United States v. Hill, 55 Fed. 3d 1197, 1202 (6th Cir. 1995).
Appellant now asserts the military judge abused his discretion by accepting his plea of guilty, arguing that the record discloses a substantial basis in law and fact for questioning the plea. We agree. To quote Bailey, appellant's guilty plea admitted to an "evil-doing hand" but not an "evil-meaning mind." Stated another way, appellant's pica established the actus reus but not the requisite mens rea necessary for a conviction as a principal to premeditated murder under an aider and abettor theory.
Keep in mind this is a guilty plea case and must be analyzed for an abuse of discretion. See Moratalla, CAAFlog, Dec. 7, 2021. Essentially the court finds that Appellant's responses during the plea colloquy set up a substantial question because, "Guilty pleas "must be analyzed in terms of providence of the plea, not sufficiency of the evidence." United States v. Faircloth, 45 M.J. 1 72, 17 4 (C.A.A.F. 1996).
In Nye & Nissen v. United States, the Supreme Court made clear that the mens rea for criminal liability as a principal under an aider and abettor theory is one of shared intent. 336 U.S. 613 (1949). " In order to aid and abet another to commit a rime it is necessary that a defendant 'in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed."' Id. at 619 ( quoting L. Hand, J ., in United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938)). The Supreme Court reaffirmed its adherence to Judge Learned Hand's concept of shared intent in Rosemond v. United States, referring to Judge Hand's formulation, quoted above, as a "canonical
The court observes that "Federal Circuit Court jurisprudence" is informative in interpreting the similar statute of UCMJ art. 877. So it adopts a shared intent theory of liability. The court found a number of statements in providency to be unhelpful in affirming the plea.
Navy-Marine Corps Court of Criminal Appeals
United States v. Delgado.
Result. Findings and sentence affirmed.
Appellant was initially screened as a medium security prisoner. However, the Command Duty Officer [CDO] performing the screening decided to override this initial classification due to the length of Appellant’s sentence and classified him as a maximum security prisoner. As a result, Appellant was placed in segregated confinement away from general-population prisoners.
Appellant exhausted admin remedies, without success.
Court finds the Brig properly applied and followed instructions without any "ill motive."
Court is "reluctant to second guess" here.
Potential appellate case
United States v. Cadet JM. Trial starts Monday on allegations of sexual abuse of a child.
Cheers, Phil Cave
Federalism and Coronavirus Vaccination Mandates for Military Personnel
"Given the unique federalism issues governing the National Guard, however, the current showdown with Oklahoma raises two unique legal questions. First, does Governor Stitt have the legal power to exempt the Oklahoma National Guard from Defense Department vaccine mandates? Second, when push comes to shove, is there anything the Defense Department can do to enforce the mandate in the face of a state’s intransigence?
The answer to the first question is [NO]; and it is not even a close call. The National Guard is the modern umbrella term for the military entity that was called the “militia” at the time of the nation’s founding. Tracing their origins to pre-Revolutionary England, militia comprised citizen soldiers, who by law were often required to keep arms in their homes, belong to a local group that more resembled a rotary club than an army, and were ready to be called up to bear arms in times of public need. This made militia members distinct from the full-time military professionals of the regular army. And they both operated and were understood to operate under local regulations dictated by local needs for which local politicians were accountable."
Michel Paradis & Emily Eslinger
FY22 NDAA: A Missed Opportunity to Improve Military Justice
"Congress should clean up the unprincipled mess they have created in the military justice system under the FY22 NDAA, and instead pass MJIIPA as a standalone bill. Better still would be to amend MJIIPA to remove commanders’ prosecutorial authority over all crimes, even military-unique ones (which include capital offenses such as desertion). All criminal allegations against service members deserve fair, independent, and unbiased treatment, which is not what occurs under the current system. Those in uniform deserve far better than what they have just been handed."
Rachel E. VanLandingham (@rachelv12), a professor of law at Southwestern Law School, is a retired Air Force lieutenant colonel and former military attorney, the President of the National Institute of Military Justice, and co-author of Military Justice: Cases and Materials (Carolina Academic Press 3d ed. 2020).
Hom Tanks in the comments wonders if the covered offenses in the NDAA will constitute most offenses actually tried. Per a preliminary look at Air Force data for FY21, the answer is "yes."
107 of 159 GCMs included a covered offense or 67% of all GCMs in FY21.
8 of 122 SpCMs included a covered offense or 6% of all SpCMs in FY 21.
Thus, while the number of offenses "covered" seems small in relation to the whole code, the reality will be that the new system will be the primary system meting out military justice. Of course, this could change should patterns of criminal conduct (or prosecutorial priorities) change.
The Air Force released their supplemental Covid-19 vaccination policy yesterday.
Notably, Attachment 2 addresses the Air Force's position on unvaccinated ANG members:
“the Secretary of the Air Force hereby withdraws consent for members not fully vaccinated to be placed on or to continue on previously issued Title 32 Active Guard and Reserve orders"
Find the Air Force Policy here.
Find the Military Times article here.
Elizabeth M. Berecin
The central issue in military justice reform has been whether all felonies, or only sex offenses, would be removed from the traditional commander-driven prosecution system. We now know the following offenses will be removed:
"‘(17) The term ‘covered offense’ means— 15 ‘‘(A) an offense under section 917a (article 16 117a), section 918 (article 118), section 919 17 (article 119), section 920 (article 120), section 18 920b (article 120b), section 920c (article 120c), 19 section 925 (article 125), section 928b (article 20 128b), section 930 (article 130), section 932 21 (article 132), or the standalone offense of child 22 pornography punishable under section 934 (ar23 ticle 134) of this title;"
United States v. Moratalla is the court's first full decision of the term. NMCCA decision here.
Appellant pled guilty to various offenses including a bank fraud (18 U.S.C. § 1344) charged as a UCMJ art. 134 offense. She was sentenced to 60 months (reduced to 48 IAW the PTA), RiR, (a likely meaningless) $1K x six, and a DD.
I note she was not charged with a conspiracy to violate the federal statute, which the facts suggest was a viable charge.
The specification read,
[K]nowingly execute or attempt to execute a scheme or artifice to defraud a financial institution, ABNB Federal Credit Union, or to obtain moneys, funds, credits, and assets owned by or under the custody and control of the ABNB Federal Credit Union, by means of false or fraudulent pretenses, representations, or promises . . . .
(Emphasis in the original). Appellant challenged the providence of the plea to the bank fraud.
Appellant sought funds to invest in her personal “house flipping business.” In order to secure those funds, Appellant enlisted the help of a coworker—BM2 Whiskey—who agreed to apply for a loan at ABNB Federal Credit Union. Their plan was for BM2 Whiskey to falsely represent to ABNB that he would use the loan proceeds to purchase Appellant’s vehicle. However, neither BM2 Whiskey nor Appellant believed that BM2 Whiskey was actually purchasing the vehicle. Rather, their intent was for the funds obtained from ABNB to be treated as an investment by BM2 Whiskey in Appellant’s business. Nevertheless, at the time of the loan transaction, Appellant transferred the vehicle’s title to BM2 Whiskey—a hallmark of a legal sale of a vehicle from one individual to another. The transfer of the title raised the specter that—despite her intentions—Appellant did not commit bank fraud because she actually did sell her vehicle to BM2 Whiskey consistent with the terms of the loan agreement.
The providence inquiry "arguably raised some question as to the providence of her plea, those responses—in the full context of the colloquy—did not give rise to a substantial question. We therefore hold that the military judge did not abuse his discretion in accepting Appellant’s guilty plea and we affirm[.] For acceptance of a guilty plea there needs be,
[D]espite the existence of an otherwise adequate basis for a plea, “[i]f an accused ‘sets up matter inconsistent with the plea’ at any time during the proceeding, the military judge must either resolve the apparent inconsistency or reject the plea.” United States v. Garcia, 44 M.J. 496, 498 (C.A.A.F. 1996) [.]
From the NMCCA and CAAF opinion.
Appellant admitted telling the petty officer to lie about the purpose for the loan.
Appellant admitted she "partnered" with the petty officer to lie to get the loan for the business.
They both "considered" the money to be for the business.
The transfer of the title and use of the car did not happen until after the money was given to Appellant. (Huuum, isn't that how buying a car works?)
CAAF emphasizes the attempt language of the specification and the statute, and notes, the language of the federal statute is broad and covers "Whoever knowingly executes, or attempts to[.]
We highlight the fact that the statute “punishes not [only] ‘completed frauds,’ but . . . [also] fraudulent ‘scheme[s],’ ” Loughrin v. United States, 573 U.S. 351, 364 United States v. Moratalla, No. 21-0052/NA Opinion of the Court 7 (2014) (alteration in original) (emphasis added) (quoting Neder v. United States, 527 U. S. 1, 25 (1999)), including attempted fraudulent schemes. In light of Appellant’s conduct and the breadth of this statute, we conclude that Appellant’s actions constituted—at a minimum—an attempt to execute a scheme to defraud ABNB.
While I appreciate this may all make sense in the big scheme of things, I wonder if it would have been appropriate to also (or instead) charge a conspiracy and perhaps avoided some litigation?
Cheers, Phil Cave
-Current Term Opinions
Joint R. App. Pro.
Global MJ Reform
LOC Mil. Law