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Dateline: 20 November 2020 (as of 1000); a summary of the week’s events.
 
SUPREME COURT
 
FEDERAL COURTS
 

• 11th Cir. Case has a textbook Rule 704(b) violation, reports evidence guru Prof. Colin Miller. He notes,

 
The recent opinion of the United States Court of Appeals for the Eleventh Circuit in United States v. Boykins, 2020 WL 6441103 (11th Cir. 2020), provides a good example of testimony that violates Rule 704(b).
            In Boykins, Jarrett Boykins was charged with two counts of possession of methamphetamine with intent to distribute and five related gun counts. At trial, 
            Officer John Walker, a member of the Birmingham Police Department and the Drug Task Force, testified as an expert witness for the government at trial. His direct examination included the following exchange:
 
                        Q. “Based on your training and experience and the evidence that you reviewed in relation to the Pleasant Grove case, do you believe that the 50-plus grams or more methamphetamine was possessed with the intent to distribute it?”
 
                        A. “Yes, sir, absolutely.”
 
                        Q. “In relation to the Homewood case, the 152 pills...do you believe that that quantity, in relation to the quantity that was possessed was possessed with the intent to distribute?”
 
                        A. “Yes, sir.”
 
When Boykins appealed his conviction and challenged this line of questioning, the State didn't even defend it; instead, as the Eleventh Circuit noted, "The government appears to concede, and we agree, that this testimony by Officer Walker violated Rule 704(b)....The question is whether this error satisfies the remaining prongs of plain error [because he did not object to the questioning]." (Emphasis added.)

​
CAAF
 

• No. 20-0358/AR. U.S. v. Carlos Muniz, Jr. CCA 20200092. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following specified issue:

WHETHER THE CONVENING AUTHORITY'S FAILURE TO TAKE ACTION ON THE SENTENCE DEPRIVED THE ARMY COURT OF JURISDICTION UNDER ARTICLE 66, UCMJ.
 
I cannot see an ACCA opinion on either their website or LEXIS—so likely a merits submission and as noted, now a specified issue.
 

• Hearing schedule for December published. MJ recusal is a current issue in a number of cases, two in December address “was a recused judge's substantive participation in Appellant's case after he recused himself harmless error?” See Upshaw. And “whether the lower court erred in finding the military judge did not abuse his discretion in denying a joint motion to recuse.” See Uribe. Note that on 13 November 2020 the court denied the petition in Snyder which had a “Spath” issue raised.

 
ACCA
 
AFCCA
 
CGCCA
 
NMCCA
 

• United States v. Hunter. In an attempted sexual abuse of a child case, the issue is IAC in failing to “effectively use” an expert. (Note, another 2CaP case.)

 

• United States v. Olaya. A to-catch-a-predator (2CaP) type case with entrapment and overt act under consideration—in a “poorly planned NCIS sting operation.” Slip op. at 5.

 

• United States v. Guess my Name. This is a straightforward case involving waiver of motions in a PTA. Typically the waiver clause waives multiplicity claims. On appeal the appellant asked the court to exercise its own discretion and consider the specifications multiplicious—something the court declined to do. See United States v. Chin, 75 M.J. 220 (C.A.A.F. 2016).

 
            In Chin the court compared the limited appellate review where an issue was waived at trial with the CCA’s independent duty under Article 66, UCMJ, to “affirm only such findings of guilty and the sentence or such part or amount of the sentence, as [they] find[] correct in law and fact and determine[], on the basis of the entire record, should be approved.”
 
            “While an accused is prevented from raising an issue by a “waive all waivable motions” provision, an accused has no authority to waive a CCA’s statutory mandate unless, through Article 61, UCMJ, procedures, the accused waives the right to appellate review altogether[.]”
 
            Practice note. The military judge can sua sponte find the specifications multiplicious for sentencing (and some do); and nothing prevents the defense counsel from arguing that the MJ should consider the specifications as all one “act”  Chfor sentencing—neither action breaches the PTA.
 
In the News—pending appellate cases.
 
·       The New York Post reports A Marine Corps reservist has been charged with murder in the death of an Emerson College student who succumbed to brain damage sustained during a fight in Boston last year, military officials said. He remains in pretrial confinement ahead of a motion hearing set for April in Quantico, Virginia. His court-martial is scheduled for April 26 in New Orleans, MassLive.com reported. Lance Cpl. Samuel Boris London is also facing military charges of manslaughter, assault and battery and wrongful use of a controlled substance in the October 2019 death of Daniel Hollis, a 19-year-old sophomore who died at a hospital four days after the beating, the Boston Globe reported.

• The Fort Hood Sentinel alerts us to several pending appeals. The report seems to be representative of the types of UCMJ violations going to trial.

 

• Query: Do you agree or disagree that it is now unusual for purely military discipline offenses to result in a court-martial?

 

• Can you say why?

 
Worth the Read.
 

• Amos N. Guiora, Armies of Enablers: Survivor Stories of Complicity and Betrayal in Sexual Assaults. ABA 2020.

 

• Focusing on cases of sexual assault from USA Gymnastics, Michigan State University, Penn State University, The Ohio State University, and the Catholic Church, interview after interview sheds compelling light on two powerful responses: that this question had not been previously asked and that survivor expectation of protection and support from the enabler-bystander was rarely, if ever, met.

Clearly the perpetrator benefitted from the complicity of the enabler. From the survivor's perspective, both bear responsibility for their plight and must be held accountable. This book emphasizes individual and institutional enablers alike; in fact, armies of enablers.

Guiora proposes legal, cultural, and social measures aimed at the enabler from the survivor's perspective. The proposed changes will address, and impact, both broader society and specific communities including higher education, elite athletics, sports organizations, religious institutions, law enforcement, the entertainment industry, and elected officials.
 
The principles and arguments he makes are equally applicable to military sexual assault cases and ways to address prevention.
 

• This is the second book by Prof. Guiora his first being The Crime of Complicity: The Bystander in the Holocaust. Ankerwycke 2017. Complicity and Betray builds on the experiences he reports in Holocaust.

 

• Task&Purpose reports that, NCIS is still looking for a sailor who escaped from the brig 15 years ago.

 
Praefke was sentenced at a general court-martial in October 2005 to over three years of confinement for unlawful possession of explosives, larceny of ammunition, and making a false official statement. On Nov. 13, 2005, Naval Base Kitsap in Washington reported to NCIS that Praefke had escaped from the brig. Investigators believe he may have acquired an RV or boat and may be traveling around the United States or have sailed to the Caribbean. I could not find an NMCCA or CAAF opinion in his case—perhaps it was a GP case with a summary affirmance.
 

• Appellate Advocacy.

 
*Brought to you as a product of the MilitaryLawNewsSpeakBureau.

Phil Cave

MJ Editor