Up Periscope -- 12 March 2021

AFCCA

United States v. Binegar. Case remanded to resolve post-trial processing errors. With the number of these issues arising, is it arguable that the Appellant should get confinement credit or the delay in resolving his appeal? Sending all these post-trial error cases back is legally correct, but the client suffers delay. As a second shoe—an exemplary matter—should the courts be giving sentence credit pour encourager les autres?

In United States v. Edwards appellant raised three AOEs and 14 Grosty’s. Findings and sentence affirmed with a 41-page opinion. Issues of note discussed,

• The affirmative defense of self-defense to murder.
• Challenges to members.
• Improper victim-impact statements from and through the victim’s father. There was a one-page written statement and a video about the victim narrated by the parents. Bottom line,

​We find that a victim may present a verbal unsworn statement under R.C.M. 1001A through the medium of a video. Central to this conclusion is that no provision of R.C.M. 1001A expressly disallows a victim to submit a video at a sentencing hearing. Also, the video itself as a mode of presentation is neither unreasonable under R.C.M. 1001A(a), nor is it obviously outside the scope of a “statement” as that term is used in R.C.M. 1001A.

• Improper TC findings argument.
• Misstating the evidence.
• Burden shifting. 

 
United States v. Justice is an interesting writ petition arguing for a new Article 32, UCMJ, preliminary hearing. At the hearing,

Defense counsel made numerous objections before, during, and after the hearing. Inter alia, the Defense objected on the grounds that the PHO did not outrank Lt Col NM; that the PHO was not impartial; that the “unsafe” hearing should be delayed; and that an AFOSI agent testified while wearing a mask over his nose and mouth.

After referral the defense moved for a new preliminary hearing which the military judge denied because the hearing was “in substantial compliance” with the law. “With regard to the witnesses wearing masks, the military judge noted an accused’s right to confront witnesses face-to-face is not absolute.” And this would be particularly true at a preliminary hearing?
The petition was denied. CAAF on a writ appeal petition?
 
United States v. Monge. Appellant entered mixed pleas of which the MJ accepted the GPs and members found him guilty of various sex offenses. On appeal Appellant raised legal and factual sufficiency to the members findings of guilt. Rather than address the issues now, the court returned the case to the convening authority for corrective action resolving post-trial errors.

United States v. Tellor. In this mixed plea case appellant raised nine issues.

Appellant raises nine issues on appeal: (1) whether the military judge abused his discretion by erroneously excluding impeachment evidence; (2) whether the military judge abused his discretion by allowing hearsay testimony; (3) whether the military judge abused his discretion when he allowed the victim to exceed the permissible scope of her unsworn statement; (4) whether trial counsel’s sentencing argument was improper; (5) whether there is a question as to whether outside influence was improperly brought to bear on any court member; (6) whether Appellant’s commander’s disparaging posttrial comments unlawfully increased Appellant’s punishment; (7) whether cumulative error requires a rehearing on the sentence; (8) whether Appellant’s sentence is inappropriately severe; and (9) whether Appellant is entitled to relief for the conditions of his post-trial confinement.

​Rather than decide the issues the court remanded to case to the convening authority “to resolve a substantial issue with the convening authority’s decision memorandum as the action taken on Appellant’s adjudged sentence was ambiguous and incomplete.”

NMCCA

United States v. Griffin. , 80 M.J. ___ (N-M Ct. Crim. App. 2021). In this MJA/GP—another of broadcasting “intimate visual images” the court found no error and affirmed the findings and sentence. Appellant alleged improper TC argument on sentence and the court also identified a concern about the providence inquiry on the Article 117a plea. The court distinguished United States v. Murray, No. 201800163, 2019 CCA LEXIS 483 (N-M. Ct. Crim. App. Dec. 5, 2019) (unpublished).
  
United States v. Permenter. Appellant was convicted of various offenses involving the receipt, theft and sale of government property, housebreaking, obstructing justice, and of course adultery.
Appellant raised no issues with the court but the court itself specified three issues.

1. Should the conspiracy specifications be merged.
2. Sufficiency of the providence to a dereliction charge of failure to report—a possible defense existed and was not explored by the MJ.
3. Sufficiency of the providence to the receipt of stolen property—a possible defense existed and was not explored by the MJ.

The court set-aside the three specifications noted above. The law of sufficiency of a plea is clear and settled.

• There must be an adequate factual basis for a plea. But “we must remain “cognizant that in guilty-plea cases the quantum of proof is less than that required at a contested trial.”
• “In summary we review a judge’s decision to accept a guilty plea for an abuse of discretion and questions of law arising from the guilty plea de novo.” “It is possible to have a factually supportable plea, yet still have a substantial basis in law for questioning it. This might happen where an accused knowingly admits facts that meet all the elements of an offense, but nonetheless is not advised of an available defense or states matters inconsistent with the plea that are not resolved by the military judge.”
• “An affirmative defense to a charged offense would, by definition, constitute a matter “inconsistent with the plea” of guilty and therefore the military judge must resolve the apparent inconsistency or reject the plea.”

A sentence reassessment resulted in the court affirming the remaining charges and the sentence.

PENDING APPELLATE CASES

United States v. Torello. The news report has this interesting comment, “The commander of U.S. Forces Japan, convicted and sentenced Torello to four months in military confinement, a bad conduct discharge and reduction in rank to airman basic, the lowest enlisted rank in the Air Force.
United States v. Cadavano. “Torello's and Cadavona's cases are connected, 5th Air Force spokeswoman told Stars and Stripes in an email Feb. 19.”
 
 WORTH THE READ

MAJ Chase C. Cleveland, Voir Dire in a Time of “Me Too.” ARMY LAWYER, No. 4 2019; COL Mark A. Bridges, A View from the Bench: The Overlooked Art of Conducting Voir Dire. ARMY LAWYER, Mar. 2011.