"Up Periscope"-- A Summary of the Last Week

​Dateline: 14 August 2020
 
07082020—CAAF grants in White, No. 20-0231/NA
 

• "DID THE LOWER COURT ERR IN DETERMINING THE GOOD FAITH EXCEPTION APPLIED WHEN THE MILITARY JUDGE FOUND SO LITTLE INDICIA OF PROBABLE CAUSE EXISTED THAT NO REASONABLY WELL-TRAINED OFFICER WOULD RELY ON THE SEARCH AUTHORIZATION?"

 
07082020--ACCA decides United States v. Stanley.
 

• "Appellant’s case is now pending review before this court pursuant to Article 66, UCMJ. Appellant claims the military judge abused his discretion in allowing the panel to hear Private (PV2) CL’s unsworn victim impact statement pursuant to Rule for Courts-Martial [R.C.M.] 1001A. As discussed below, we find the military judge did not abuse his discretion in admitting the victim impact statement at issue and, accordingly, grant no relief."

 
12082020—ACCA decides United States v. Bruner.
 

• "On appeal, appellant raises three assignments of error, two of which we will address. In his first assignment of error, appellant contends the convening authority improperly approved appellant's sentence without a substantially verbatim transcript in violation of Rule for Courts-Martial [R.C.M.] 1103(f). In his third assignment of error, appellant avers he is entitled to relief where the government took 216 days from sentencing until action to process his record of trial. We agree with appellant on both counts."

 
07082020—AFCCA decides—yes--United States v. Bruner and, United States v. Holder.
 

• "Appellant raises two issues on appeal: whether Appellant is entitled to sentence relief because (1) the sentence to confinement for five years is inappropriately severe, and (2) his combat service was omitted from the personal data sheet (PDS) provided to the military judge and the convening authority.4 We find no error that resulted in material prejudice to Appellant’s substantial rights, and we affirm the findings and sentence."

 
And, United States v. Rambharose.
 
This is a convoluted case decided by AFCCA for the third time.
 

• "Upon our initial review, this court set aside Appellant’s conviction of one of the specifications of abusive sexual contact as factually insufficient (Specification 3). We affirmed the convictions for the remaining specification of abusive sexual contact (Specification 1) and two specifications of assault consummated by a battery (Specifications 2 and 4), and reassessed the sentence[.]"

 
CAAF remanded because of United States v. Hukill. AFCCA took additional action and remanded to the CA for a potential rehearing.
 

• "Appellant now raises three issues on appeal: (1) whether it was improper for the convening authority to reassess the sentence where this court had not expressly authorized a reassessment; (2) whether it was improper for the convening authority to reassess the sentence given the dramatic change in the penalty landscape and impossibility of ascertaining how severe the punishment would have been absent the constitutional error at trial; and (3) whether Appellant is entitled to sentence relief because the Air Force improperly discharged him while his appeal was pending. In addition, we consider whether Appellant is entitled to relief for unreasonable post-trial delay. We find no error materially prejudicial to Appellant’s substantial rights, and we affirm the sentence as reassessed by the convening authority."

 
Will CAAF grant—case to watch for. There are several fairly recent cases about what a remand means and what actions the CA can take on remand.
 
07082020—NMCCA decides United States v. Schmidt in a published opinion. (Unfortunately, NMCCA is set up to prohibit cut-and-paste.) But,
 

• "Appellant asserts the following assignments of error [AOE], which we reorder as follows: (1) the military judge erred in denying a Defense challenge for cause against a panel member; (2) the evidence is legally and factually insufficient to sustain Appellant’s conviction; (3) the military judge erred in his instructions on the definitions of “upon” and “in the presence of” in the specification; (4) the military judge erred in failing to instruct that Appellant’s honest but mistaken belief that the victim was asleep is a defense; (5) Appellant’s trial defense counsel were ineffective for failing to object to the military judge’s instructions on the definition of “upon” and “in the presence of”; (6) Appellant’s trial defense counsel were ineffective for failing to object to the Government forensics expert’s testimony as a violation of Appellant’s right to confront the person who conducted the actual forensic testing; and (7) officials at Camp Pendleton unreasonably interfered with Appellant’s ability to communicate and meet with his civilian appellate defense counsel. We find no prejudicial error and affirm."

 
Schmidt was convicted of one specification of sexual abuse of a child by masturbating in the child’s presence.
 
In the news—pending appellate cases.
 
The Omaha World-Herald (as well as other news outlets) is reporting.

• "A Navy chief petty officer who formerly worked at U.S. Strategic Command faces court-martial in Virginia on charges that he leaked classified information to a Russian national, Navy officials disclosed Thursday. Chief Petty Officer Charles T. Briggs served as an information systems technician at Offutt Air Force Base from April 2018 to July 2019, according to Navy documents. He has been held since August 2019 at a Navy brig in Virginia near his last duty station at Naval Medical Center Portsmouth. Briggs is accused of sending an email containing classified information to a Russian national “with reason to believe the information could be used to injure the United States or benefit a foreign nation” while working at Offutt in January 2019, according to a charge sheet."

Phil Cave