Up Periscope -- 5 February 2021

AFCCA

United States v. Harris, is the review of a petition for a new trial—which is denied.
 
United States v. Apostol. A relief for post-trial delay case.
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United States v. Greene. Appellant argued sentence severity and the court also itself raised “facially unreasonable delay” all of which found the findings and sentence being affirmed.

United States v. Hale.
Appellant raises seven issues on appeal: (1) whether the court-martial had jurisdiction over Appellant for possession of child pornography (a) that he received before he enlisted in the Air Force, and (b) while he was a juvenile; (2) whether the evidence is legally and factually sufficient to support six particular specifications; (3) whether two sets of specifications are unreasonably multiplied;4 (4) whether the staff judge advocate (SJA) erred in advising the convening authority he could not grant administrative confinement credit; (5) whether trial defense counsel were ineffective for failing to move to suppress Appellant’s statements, to present a defense of entrapment, and to advise Appellant not to unnecessarily disclose aggravating information during his providence inquiry; (6) whether Appellant’s sentence is inappropriately severe; and (7) whether the SJA erred in advising the convening authority of the correct maximum imposable term of confinement.

The findings and sentence were affirmed. I have it my mind that there has been an earlier case of a person obtaining CP prior to enlistment; but because it was still on his computer while on active duty, he was subject to prosecution for the possession, regardless of when the CP was first obtained. Makes sense.
 
United States v. Rice. Rice makes his third visit to AFCCA. The first visit resulted in an affirmance but CAAF reversed some of the convictions based on Hills and affirmed others. AFCCA then returned the record authorizing a rehearing on the Hills affected specifications. A rehearing being held, Rice returns to AFCCA.
Appellant argued that he convictions of assault and battery must be set-aside because they are not lesser included offenses of abusive sexual contact, citing to United States v. Armstrong, 77 M.J. 465 (C.A.A.F. 2018). The parties and the court agreed there was an error. Interestingly, the court decided,

​[W]e determine that we lack the authority to further address this assignment of error as the remedy Appellant seeks—setting aside a finding of guilty—would require our court to dismiss a specification the CAAF previously affirmed on 18 April 2018, less than three months before Armstrong was released. They assert the CAAF remand did not allow them to not affirm findings previously affirmed by CAAF. 

This seems odd in light of  Griffith v. Kentucky, 479 U.S 314, 328 (1987) (holding "a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases . . .pending on review"). The court relied on United States v. Montesinos, 28 M.J. 38 (C.M.A. 1989), and their understanding of limitations for actions after remand. Ultimately the court affirmed the findings and sentence.

ACCA

United States v. Holland. The court agreed with Appellant’s Grostfon submission that the military judge erred in allowing impermissible evidence from two victims during each victims testimony in sentencing. Another case among those popping up in which their are challenges (pun intended) in what and how a victim may present either testimony or unsworn statements in sentencing. A significant issue to watch.
The court found three errors: testimony about a specific diagnosis and drug treatment, opinions about the appellant's "possibility of reoffending," and an opinion on "how they would feel upon appellant's release from confinement." Basically the court found that such evidence could be admissible but not here where there was insufficient evidence for the opinion. The court applied the "euphemism" rule where there is a recommendation as to punishment. In this judge alone case the court reassessed the sentence and reduced the confinement from nine to eight months. Not much of a victory because appellant likely served the nine months before ACCA decided his appeal.

POTENTIAL APPELLATE CASES

A U.S. Air Force court-martial panel has sentenced a Kirtland Air Force Base airman to five years in a military prison on convictions stemming from a 2019 crash in Albuquerque that killed a pedestrian. [H]e was sentenced Wednesday after being convicted Tuesday of involuntary manslaughter, negligent homicide and reckless driving in the death of A[B].

WORTH THE READ

Jacob R. Weaver, Restoring the Power of the Convening Authority to Adjust Sentences. 119 MICH. L. REV. 613 (2020).

Lawmakers, frustrated by the Defense Department’s inability to curb rape in the ranks, are moving closer to possibly making a momentous change in the military justice system.
Members of the Senate Armed Services Committee are increasingly receptive to a long-standing proposal by New York Democrat Kirsten Gillibrand, chairwoman of the Armed Services Personnel Subcommittee, to move responsibility for prosecuting sexual assault, and perhaps other major crimes, from military commanders to independent prosecutors.
Several committee members this week hinted that they would back Gillibrand, in some cases reversing earlier positions. And, in so doing, they rebuffed abiding Pentagon resistance to the proposal.
Momentum may be gathering, meanwhile, behind a similar House proposal by Jackie Speier, the California Democrat who chairs the comparable Armed Services personnel panel. Nearly half the House co-sponsored her bill in the last Congress.

So reports  Roll Call.

OH BY THE WAY

Secretary of Defense Austin has issued an updated masking order.

Today, Secretary of Defense Lloyd J. Austin III signed a memo that, effective immediately, directs all individuals on military installations and all individuals performing official duties on behalf of the Department from any location other than the individual’s home, including outdoor shared spaces, to wear masks in accordance with the most current Centers for Disease Control and Prevention (CDC) guidelines. 
Individuals must wear masks continuously while on military installations except:  (1) when an individual is alone in an office with floor-to-ceiling walls with a closed door; (2) for brief periods of time when eating and drinking while maintaining distancing in accordance with CDC guidelines and instructions from commanders and supervisors; (3) when the mask is required to be lowered briefly for identification or security purposes; and (4) when necessary to reasonably accommodate an individual with a disability. Individuals must consistently wear a mask that covers the nose and mouth and that comports with all current guidance from the CDC and the Occupational Safety and Health Administration.

So reports the DoD Newsroom.

Just over the transom.

Cheers, Phil Cave.
*​Brought to you as a product of the MilitaryLawNewsSpeakBureau.

​Analysis by CNN of Pentagon records and court proceedings show 21 of the 150, or 14%, are current or former members of the US military. That is more than double the proportion of servicemen and women and veterans in the adult US population, calculated from Census Bureau and Department of Defense statistics. In 2018, there were 1.3 million active-duty members of the services and 18 million veterans. Together, they comprised just 5.9% of the overall 327 million US population at the end of 2018.

So reports ABC57.com

Cheers, Phil Cave
*Brought to you as a product of the MilitaryLawNewsSpeakBureau.