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

8/14/2020

 
​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

Scott
8/14/2020 11:00:59 am

Thanks for posting. Nice to get a snapshot of the week all in one place.

Nathan Freeburg
8/14/2020 11:40:11 am

In Schmidt, the Court's citation to Matias in footnote 3 doesn't appear to have anything to do with the referenced AEOs...unless I'm completely missing something?

Scott
8/14/2020 03:07:46 pm

That is a very interesting observation. The referenced opinion (Matias) certainty has nothing to do with the substantive issue of access to counsel.

The only thing I can think is that the court is citing to Matias for the proposition that there is no requirement to articulate the reasons behind it’s rejection of a particular AOE. The particular page cited to in Matias states:

“we are aware of no requirement of law that appellate courts in general or a court of military review in particular must articulate its reasoning on every issue raised by counsel.”

As the court is rejecting the argument regarding access to counsel without discussion, it may be citing to Matias simply for the proposition that there is no requirement for discussion.

That said, I do not think that is at all a controversial issue - the courts summarily reject AOEs all the time.

As an example of one curiosity leading to another: in reading the Matias opinion I noticed that the appellant, “James R. Matias” was represented on appeal by a civilian attorney, “Thomas R. Matias.” And attorney Matias appears to represented his namesake client quite zealously - raising numerous AOEs and, as the CMA notes, filing particularly lengthy briefs.

What’s more, attorney Matias’ zeal does not seem to have ended at the CMA. He filed a collateral attack on the conviction in US Claims Court, which was denied via summary judgement. Matias v. United States, 19 Cl. Ct. 635 (1990). He then appealed that denial to the Federal Circuit, sadly loosing once again. Matias v. United States, 923 F.2d 821 (1990). Attorney Matias seems to have zealously represented Specialist Four Matias for something like five years through a complex string of appeals (extending long past the young Matias’ presumed release from his sentence of two years confinement at hard labor)

Despite his zeal in this particular military case, attorney Matias does not seem to have taken any other military cases before, during, or after this particular lengthy representation. Further, with all due respect to the learned and zealous Matias, his AOEs before the military courts, while thoughtful, do not read like those of an experienced military justice practitioner (he uses unique phrasing where standardized MJ language might be expected, etc).

Could it be that attorney Matias had a familiar bond with his client? And it was this blood bond that motivated him to enter the unfamiliar realm of military appellate law... and to fight on, long past his client’s release from confinement, to vindicate the family name, restore his loved one’s place in his chosen profession of arms, and mend the broken hearts of their elderly relatives who had been deeply saddened by young Matias’ boyish foray into the seductive world of low level drug trafficking?

I can picture it now: Attorney Matias, hunched over a mahogany desk in his small but successful real estate practice, expertly drafting a lengthy contract into the long hours of the evening, squinting through the low light of one of those green shaded lamps every office had in the 1980’s, when the phone unexpectedly rings. It is his mom. And she is with his Aunt. They are hysterical. Devastated. He can barely make out their words through the tears. Then, in a moment of strength, one manages to get out: “Thomas, it’s your cousin, James.”

Alarmed, Thomas glances to his right, his eyes resting momentarily on the dusty photograph of James at his basic training graduation in 1983. The look of pride on his face undiminished by the solidarity ribbon on his otherwise sterile uniform. To the picture’s right, is another picture: their mutual grandfather in grainy black and white in a dirty flannel uniform somewhere in Europe. To the picture’s left, yet another: James’ father. Thomas’ uncle. Somewhere in Vietnam. He never made it back. And James never forgot.

All James ever wanted to do was be like his father. Join the Army. Make his mother proud. A wave of subtle pride briefly swelled inside Thomas - a family legacy to be proud of - one to hang your hat on - a chin held high..... the momentary drift of his mind was interrupted as he was pulled back into the call. “Thomas... Thomas.. are you listening? It’s your cousin James. He’s in trouble. He needs a lawyer.”

Ten minutes later, the phone call ended, Thomas sat deep in thought. What could be done? He lit a cigarette. Then another. Still deep in thought. Thomas was a good lawyer. Maybe even great. He had graduated second in his class. He would have been first, but he had to work two jobs during school to pay for his books and support his family. Now his family needed his support again: in court. Military court.

“Im a real estate attorney - Thomas thought to himself. I can’t do this. Then again, law is law. I

Scott
8/14/2020 03:14:44 pm

Oh no! Comment length limit.

I won’t recreate it - but the story continued to Thomas seeking out the best military lawyer money could buy for his beloved kinsmen, hearing of a young Phil Cave making a name for himself in the field, calling to arrange terms, and then hanging up the phone just as it was being answered - determining that it had to be him personally representing young James.

Nathan Freeburg
8/15/2020 07:11:22 pm

This made my weekend. Thank you.

Phil Cave link
8/15/2020 09:31:10 am

Appellant also asserts that the Court of Military Review erred by not specifically addressing in its written opinion many of his assignments of error. No provision in the Uniform Rules of Practice and Procedure for the Courts of Military Review; Rules for Courts-Martial (R.C.M.), Manual for Courts-Martial, United States, 1984; or Article 66, UCMJ, 10 U.S.C. § 866, requires such written opinions. See Rules [**12] 15 and 18 Rules of Practice and Procedure, Courts of Military Review, 22 M.J. CXXXII and CXXXIV; R.C.M. 1203; United States v. Hurt, 9 U.S.C.M.A. 735, 756, 27 C.M.R. 3, 24 (1958). The opinion below notes that the court considered those assignments of error and found them to be without merit. See 21 M.J. at 1005. We have considered these assigned errors as well and find only one which deserves extended comment before denying relief on these grounds.

United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987).

"As noted by the district court in its order in this case, the federal courts have only limited authority to review court-martial proceedings in actions for habeas corpus relief. Lips v. Commandant, 997 F.2d 808, 810-11 (10th Cir.1993). If the federal court determines that the military courts gave full and fair consideration to the claims advanced by the petitioner, the federal court must refrain from reaching the merits, and must deny the petition. Id. An issue is deemed to have received full and fair consideration where it was brought before the military court and was disposed of by that court, even if summarily. Watson v. McCotter, 782 F.2d 143, 145 (10th Cir. 1986).

See, also, Thomas v. USDB.
[https://www.casemine.com/judgement/us/5914625dadd7b04934250fe7]


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