Dateline: 23 October 2020(as of 1000).
On October 26, 2018, this court issued a decision in appellant's case, granting relief in part [and some specifications] were set aside. We then remanded the case and provided the same or different convening authority with three options.
We now sua sponte review these matters for further consideration pursuant to an intervening change in law as it applies both to our October 26, 2018 decision and the February 12, 2020 action taken by the convening authority. After this court's October 26, 2018 decision, our superior court issued two opinions that impact our directive to the convening authority. See United States v. Gonzalez, 79 M.J. 466 (C.A.A.F. 2020); United States v. Wall, 79 M.J. 456 (C.A.A.F. 2020). As explained below, we find our October 26, 2018, decision impermissibly impugned appellant's right to appellate review, but in light of the totality of the record, the error warrants no further relief. This court's de novo review of the remaining findings of guilty as affirmed in our October 26, 2018 opinion are REAFFIRMED. The convening
An enlisted panel sitting as a general court-martial convicted appellant, contrary to his pleas, of three specifications of sexual assault, in violation of Article 120, Uniform Code of Military Justice, 10 U.S.C. $ 920 (2016) [UCMJ]. The convening authority approved the adjudged sentence of a dishonorable discharge, confinement for fifteen years, total forfeiture of all pay and allowances, and reduction to the grade of E-1.
On appeal, appellant asserts that the military judge erred in denying his motion to compel expert assistance and by excluding the polygraph video. [W]e disagree.
A military judge sitting as a general court-marital convicted appellant, consistent with his plea, of one specification of assault consummated by a battery, in violation of Article 128, Uniform Code of Military Justice, 10 U.S.C. $ 928 (2012 & Supp. IV 2016) [UCMJ]. On 1 March 2019, an enlisted panel sitting as a general courtmartial convicted appellant, contrary to his pleas, of one specification each of making a false official statement, larceny of military property, assault consummated by a battery, communicating a threat, and child endangerment, in violation of Articles 107, 121, 128 and 134, UCMJ. Appellant was sentenced to confinement for 90 days, forfeiture of $1,680 pay per month for one month, reduction to E-1, and a bad-conduct discharge. Appellant was acquitted of one specification of assault consummated by a battery and one specification of adultery in violation of Articles 128 and 134, UCMJ.
On appeal, appellant contends his conviction of child endangerment is legally and factually insufficient. We agree and grant relief in our decretal paragraph and reassess appellant's sentence.
In the News—pending appellate cases.
Worth the Read.
An enlisted panel sitting as a general court-martial convicted appellant, contrary to his pleas, of conspiracy to commit premeditated murder and premeditated murder, in violation of Articles 81 and 118, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 881 and 918. Appellant was acquitted of an additional offense of premeditated murder and obstruction of justice.
The court sentenced appellant to reduction to the grade of E-1; forfeiture of all pay and allowances; confinement for life (with eligibility for parole); and a dishonorable discharge.
See United States v. Hatley, No. 20090329, 2011 CCA LEXIS 124, rev. denied 71 M.J. 93 (C.A.A.F. 2012), cert. denied 568 U.S. 889 (2012).
Army Times reports he was paroled.
· In a petition now pending before the U.S. Supreme Court, the issue presented is,
Whether the due process clause excuses the government’s knowing use of false testimony in a criminal prosecution so long as the government divulged evidence during discovery indicating that the testimony was false.
More can be found atSCOTUSBlog about Stein v. United States.
· Lance Caughfield, Tales of Terror! (Or Waiver at Trial and on Appeal. Appellate Advocacy Blog, 20 October 2020.
Waiver on appeal can be even more insidious. In federal court, the issue technically becomes one of waiver (an intentional relinquishment) versus forfeiture (an unintentional omission). See Wood v. Milyard, 132 S. Ct. 1826, 1832 (2012). But whatever they call it, waiver can arise not only because the issue was not addressed at trial, but because it was not adequately addressed in the brief. Thus, some courts have found waiver where the issue was raised but only in a footnote, or in a page or less of briefing, or without citation to supporting authority. See Barry A. Miller, Sua Sponte Appellate Rulings: When Courts Deprive Litigants of an Opportunity to Be Heard, 39 San Diego L. Rev. 1253 (2002).
This is the type of waiver that can catch even the most astute legal writer. As professionals writing to a very specific audience, we listen closely when that audience speaks. And that audience repeatedly tells us that they are tired of reading our work. "Shorter is better" seems to be the recurring theme. I have even attended conferences where a justice will admonish the audience to stop citing them to authorities everyone knows, like the standard of review.
Shorter is better, but there is a shadowy place where short and concise transitions over into waiver. In the quest to cut the argument down to its finest form, we must not cut too deeply, lest the court determine there is not enough flesh left on the bones. See United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) ("A skeletal 'argument', really nothing more than an assertion, does not preserve a claim. . . . Especially not when the brief presents a passel of other arguments . . . . Judges are not like pigs, hunting for truffles buried in briefs.").
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