United States v. Leal

This is the CGCCA's first decision of the year and Leal's second appearance before the court. (In 2020 the court issued six opinions of which four are published. Keep in mind that the CG is a smaller and more disciplined force.)

In 2016, a special court-martial (Leal I) convicted Appellant, contrary to his pleas, of a single specification of abusive sexual contact[.] It adjudged, and the Convening Authority approved, a sentence of reduction to E-1, confinement for thirty days, and a bad-conduct discharge. On appeal, we concluded the specification failed to state an offense and set aside the conviction, dismissed the charge and specification, and authorized a “new trial . . . upon a different specification.” United States v. Leal, 76 M.J. 862, 863 (C.G. Ct. Crim. App. 2017).

Upon return of the case, the Convening Authority referred two specifications to a special court-martial (Leal II) based on the same underlying conduct: one alleging assault consummated by a battery, and one alleging maltreatment in violation of [maltreatment]. A panel of officer and enlisted members acquitted Appellant of assault, but convicted him, contrary to his pleas, of maltreatment. The members sentenced Appellant to reduction to E-5 and restriction for fifteen days, which the Convening Authority approved.

Leal raised three issues on appeal; two connected to the jury deliberations and one of post-trial delay.

• Did the military judge violate Appellant’s Fifth and Sixth Amendment rights by not allowing his counsel to examine the members during a post-trial session.
• Did the military judge faile to develop an adequate record into alleged unlawful command influence during deliberations and abused her discretion by denying a motion for mistrial.
• Was Appellant is entitled to relief for unreasonable post-trial delay.

The issues were all resolved in Appellant's favor and cumulatively caused the court to dismiss all of the charges. But before proceeding to the merit's of the appeal, the court first had an important jurisdictional issue to resolve. Did they have it--appellate jurisdiction?

​Although the sentence in Leal II falls short of the jurisdictional minimum of Article 66(b), UCMJ, both parties assert that the doctrine of continuing jurisdiction applies—that jurisdiction over Leal I, with its jurisdictional sentence, extends to Leal II. We ultimately agree, but though the doctrine of continuing jurisdiction is generally well-established, there is scant precedent applying it to the procedural setting of this case: fresh charges referred to a court-martial after an appellate court dismissed the original ones. 

The court distinguishes Leal from the common case where there is a rehearing on the original charges. In discussing R.C.M. 810(e), the court concludes that it is dealing with "an "other" trial" as defined so has jurisdiction in these unusual circumstances. The court does so by reference to Article 63, UCMJ, explicitly finding that the statute establishes appellate jurisdiction not the President through the MCM. The court also adopts  reasoning from the NMCCA in United States v. Lee, 72 M.J. 581 (N-M Ct. Crim. App. 2013) (certificate for review withdrawn, 70 M.J. 351 (C.A.A.F. 2011).

The UCMJ "debates" is scant but implies the court may be right on what Article 63 means. See Discussion Larkin-Brooks-Graffenfried interchange. HH at 1180 The main concern at the time of the hearings was that new statute was perceived to allow an "acquittal" to be retried.

​On the members issue developed, but not enough, in a post-trial hearing ordered by the convening authority;

​Following trial, the junior member of the panel, Chief Petty Officer (“Chief”) H, told a Coast Guard attorney that the senior member and president of the panel, Captain (CAPT) B, had expressed “enthusiasm and strong positions” during deliberations. (Appellate Ex. 101 at 12.) 

Chief H testified that he believed that rank played a role in deliberation, not directly such as an order to vote a certain way or prefacing an opinion with a reference to rank, but indirectly. He explained that the initial plan was to have official votes on both charges, but after the panel voted not guilty on the first offense (assault), CAPT B said, “Hold on. Before you move on, we have to find this guy guilty of something.” [R. at 30.] Chief H perceived this not as a direct order per se, but more like “me being the rank that I am, saying, ‘Look, this is what needs to happen.’ . . . It was more, like, announced to the room that this is what we need to do.” [R. at 28.] Chief H also testified that there had been an unofficial “straw” poll prior to the official voting and that based on the results, Chief H commented to some of the other junior members, “People act funny when there’s a full bird in the room.” [R. at 32.] Responding to the military judge’s questions, Chief H attested that he was nevertheless able to vote according to his own conscience and that CAPT B’s statement did not influence his vote. 

CAPT B denied that anyone ever said or ordered that Appellant must be found guilty of a charge and asserted that there was full and free discussion during deliberations and that he believed all members were able to vote according to their own conscience. The military judge questioned the remaining members but, discarding most of TDC’s suggested questions and overruling his objections, she focused her inquiry on eliciting from each member that they were able to engage in full and free discussion; that no member tried to use their rank to coerce a junior member to vote a certain way; and that each member was able to vote according to his own conscience and the instructions she had provided. One member, however, indicated that although no one was ordered or coerced to vote a certain way, “inadvertently the presence of ​senior officer’s [sic] might have swayed, but . . . that’s my opinion, that’s not a fact.

Among the errors noted in addition to the questioning was the failure of the military judge to, on the record, determine if the defense had presented sufficient evidence to shift the burden to the government on the UCI issue, as required by United States v. Biagase, 50 M.J. 143 (C.A.A.F. 1999). The court finds there was just enough. This of course becomes important as to the analysis and who wins on the issue.

[W]e conclude that the military judge erred in three respects. First, although she correctly articulated the Biagase standard, she failed to address—either during the hearing or in her ruling—whether the Defense met its initial burden, thus shifting it to the Government. Here, as in Harvey, “the failure of the military judge to allocate the burden between the parties resulted in an inadequate factual basis as to the exact nature and extent of any unlawful command influence that might have been created with regard to [the members].” Harvey, 64 M.J. at 21. Further, even given the scant factual record, we believe that Chief H’s ​testimony satisfied the low threshold of “some evidence” that rank played an impermissible role during deliberations. 

And, the military judge,

• “failed to inquire adequately into” whether deliberations were tainted by unlawful command influence."
• And "focus[ed]ing on whether junior members were ordered or otherwise coerced into voting a certain way overlooks that there are more subtle ways that rank can impermissibly influence deliberations." 

A trial-practice note and words of caution. Read two items.

• Mil. R. Evid. 606.
• United States v. Schloff, No. 20150724, 2018 CCA LEXIS 350 *8 (A. Ct. Crim. App. 2018).

​I wonder if there is one of you who will comment about recent Supreme Court thinking on what kinds of questions might be directed to "jurors" post-trial. (I prefer "jury" vice the arcane members panel. If it barks and quacks it is a dog and duck.)

Cheers, PC.