Up Periscope -- 19 February 2021

ACCA

Note. ACCA’s pending cases are available here (272).

United States v. Valentin. Appellant alleged the MJ abused his discretion because he did not grant a mistrial after the government introduced uncharged misconduct through its witness. Appellant was charged with diverse specifications and occasions of child sex offenses and CP. There were 14 specifications alleging a separate specific act and time.
 
1. Pretrial asked that the witnesses be limited to talking about only the one specification at a time.
2. The TC twice said that’s what they were going to do.
4. While TC tried to limit the testimony the witness “Nonetheless, strayed into general descriptions of abusive behavior—to which the defense objected.
5. After the fifth objection, the defense moved for a mistrial—which was denied.
6. “The military judge denied the motion for mistrial and deferred issuing an instruction, electing to hear “how the rest of the testimony goes” before determining “what if anything needs to be stricken from testimony.””
7. ACCA found the “To the degree such testimony was improper, we find the military judge’s remedial actions and provided instructions appropriately ameliorated any prejudice to appellant and ensured the fairness of the proceeding.”
8. Affirmed, because

Appellant has failed to make any colorable showing that the members were unable to disregard the inadmissible evidence in accordance with the military judge’s instructions or the military judge’s remedial actions failed to protect the fairness of appellant’s trial. See Short, 77 M.J. at 151. Appellant has failed to establish clear evidence that the military judge abused his discretion in denying appellant’s motion for a mistrial, and we “will not disturb [his] decision.” Short, 77 M.J. at 152.

9. The ACCA relies on the appellate trope that the members were presumed to have followed the MJ’s instructions.

AFCCA
 
United States v. Jones.
 
On appeal, Appellant raises four issues: (1) whether his convictions (on all specifications) are legally and factually sufficient; (2) whether his convictions should be set aside due to Government discovery violations; (3) whether his sentence is inappropriately severe; and (4) whether his due process rights were violated by the lack of speedy appellate review. Appellant personally raises the first three issues pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) and the fourth issue through counsel. We have carefully considered Appellant’s second and third claims and find they warrant neither discussion nor relief. See United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987). Finding no error prejudicial to the substantial rights of Appellant, we affirm.
 
United States v. Batson.

Appellant raises eight issues on appeal. The first is an assignment of error that Appellant raises through his appellate counsel: (1) whether the military judge erred in admitting three videos pursuant to Mil. R. Evid. 404(b) to “rebut” defense counsel’s opening statement. In addition to this issue, Appellant personally raises seven issues pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), all but the first of which require this court to resolve whether investigators, prosecutors, and trial defense counsel violated his rights, above all his right to a fair trial. In a post-trial declaration submitted ​to this court,3 Appellant claims that (2) his conviction for one of the two specifications of obstruction of justice is legally and factually insufficient; (3) the search warrant issued in his case violated Appellant’s right to be free from unreasonable searches and seizures under the Fourth Amendment; 4 (4) the findings and sentence should be set aside because agents of the Air Force Office of Special Investigations (AFOSI) directed witnesses to destroy evidence; (5) trial counsel engaged in prosecutorial misconduct throughout the trial; (6) AFOSI agents unlawfully harassed and intimidated potential witnesses into participating and testifying against Appellant; (7) Appellant was denied effective assistance of counsel under the Sixth Amendment5 as alleged in four deficiencies in the performance of his trial defense counsel; and (8) the individual errors rise to cumulative error and warrant setting aside the findings and sentence. In addition to Appellant’s claims, we consider the issue of timely appellate review. 

The court found no material errors and affirmed the findings and sentence.

NMCCA
 
Note, that records of trial in pending cases received after 1 January 2021 are now online here. The courts docket of pending cases is now here; it appears there are 122 pending. There are also place holders for CG cases.
 
POTENTIAL APPELLATE CASES.

Air Force Times reports that “A military jury will decide whether a senior airman at Ellsworth Air Force Base is responsible for the death of his 6-month-old son.
 
Stars & Gripes has an update based on closing argument on findings.
Prosecutors said James Cunningham inflicted the injuries by shaking and punching Zachariah in March of last year.” And they now report findings of guilty and sentencing pending.