Up Periscope -- 15 January 2021

SUPREME COURT
The court has granted a petition in ​Greer v. United States on the following issue.
 
Whether, when applying plain-error review based on an intervening United States Supreme Court decision, Rehaif v. United States, a circuit court of appeals may review matters outside the trial record to determine whether the error affected a defendant’s substantial rights or impacted the fairness, integrity or public reputation of the trial.

And the following petition of interest has been filed in Andrews v. New Jersey, by the ACLU and EFF on behalf of the appellant. 

​Does the Self-Incrimination Clause of the Fifth Amendment protect an individual from being compelled to recall and truthfully disclose a memorized passcode, where communicating the passcode may lead to the discovery of incriminating evidence to be used against him in a criminal prosecution?

CAAF
​United States v. Stanton has been decided. The issues arose after AFCCA set-aside his sentence, authorized a rehearing, and then the CA approved an OTHIL. From there the facts of course get convoluted. Basically, Appellant was discharged but two-days later the CA issued an order that a sentence rehearing was impractical and approved a sentence of no punishment.
 
There also is a grant in United States v. Miller, on the following (more of the same) issue.

WHETHER THE CONVENING AUTHORITY'S FAILURE TO TAKE ACTION ON THE SENTENCE DEPRIVED THE ARMY COURT OF JURISDICTION UNDER ARTICLE 66, UCMJ.

ACCA
United States v. Daniels. This was a guilty plea BAH case where appellant was convicted of two larcenies based on only one act to commit. The Government conceded the two specifications should have been merged. The sentence was affirmed.

AFCCA
​United States v. Gere. The court initially affirmed the findings and sentence and the court now takes up his petition for a new trial—which is denied because Petitioner has not demonstrated that the evidence could not have been discovered before trial in the exercise of due diligence, and also fails to show that the evidence would have probably produced a substantially more favorable result.  
United States v. Humpel. Another post-trial processing error.
 United States v. Norman. Another post-trial processing error case because of the new rules.
 United States v. Caffrey. Another post-trial processing error case because of the new rules.
 United States v. Green. Another post-trial processing error case because of the new rules.
 United States v. Leach. Another post-trial processing error case because of the new rules.
 United States v. Lewis. Another post-trial processing error case because of the new rules.

NMCCA
United States v. Beauge. Appellant alleged the MJ erred in denying discovery of the victim’s mental health records and IAC for failing to argue alternate theories for disclosure under either Mil. R. Evid. 513(d)(2) and/or because constitutionally required. A good discussion of how piercing the MRE 513 privilege might be appropriate as constitutionally required.

** The court also decided (published) an interesting petition of a victim--we hope to have a robust analysis of the case come over the transom soon.

WORTH THE READ
The 8th Circuit holds that statements made to an EMT are admissible under [Mil.] R. Evid. 803(4). Prof. Colin Miller notes that statements to doctors and nurses are within the exception and now, in the 8th because of United States v. Earth, 2021 WL 79180 (8th Cir. 2021), the court makes clear, it also applies to statements to EMTs.

*Brought to you as a product of the MilitaryLawNewsSpeakBureau.