UP PERISCOPE

A delayed entry 29 December 2020—a summary of a bit more than a week.
 
Sorry, cannot resist a FB lawyer joke I received on Xmas Eve--

​Other humour not in uniform.
 
No this is not about the election or politics it is a reminder to us all that editing, and proofreading can be impertinent.
 
“A lawyer who filed a lawsuit challenging Georgia’s election process is attracting attention because of a typo near the end of the complaint.
The verification paragraph said the lawyer verifies “under plentyof perjury” that the facts in the suit are true and correct. The phrase should read “under penalty of perjury.”

HIGH COURT OF DENMARK
    In the ‘we are not alone’ category, the High Court affirmed the findings and increased the sentence of a senior officer.
 
       The High Court found that the defendant was guilty of having tried to abuse his position to get his then-girlfriend and later spouse admitted to a highly coveted leadership training within the Armed Forces. He was also found guilty of attempting to abuse his position by trying to persuade a colonel to hire his girlfriend in a vacant position as a major. In addition, the defendant was found guilty of gross negligence and breach of his duty of confidentiality by giving the girlfriend access to the inbox of the defendant's official e-mail and by forwarding emails of a confidential nature to her on matters that did not concern her.
 
    To show the risks of appeal in some countries, the High Court increasedthe confinement from three to four months.
 
CAAF
 

• 21 December 2020 the court granted,

 
No. 21-0030/AF. U.S. v. Kalab D. Willman. CCA 39642. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:
 
WHETHER THE LOWER COURT ERRED WHEN IT RULED THAT IT COULD NOT CONSIDER EVIDENCE OUTSIDE THE RECORD TO DETERMINE SENTENCE APPROPRIATENESS UNDER ARTICLE 66(c).
 

• On 16 December 2020, the court granted on this issue—one of several to come.

 
WHETHER THE CONVENING AUTHORITY'S FAILURE TO TAKE ACTION ON THE SENTENCE DEPRIVED THE ARMY COURT OF JURISDICTION UNDER ARTICLE 66, UCMJ.
 
No. 21-0062/AR. U.S. v. Fernando Quinones-Colon, Jr. CCA 20200093. See alsoNo. 21-0040/AR. U.S. v. Leshan Jones. CCA 20190254; No. 20-0358/AR. U.S. v. Carlos Muniz, Jr; No. 20-0345/AR. U.S. v. Jacob L. Brubaker-Escobar. CCA 20190618, all on the same issue. More in the pipeline from ACCA.
 
ACCA
 
Looks like the ACCA website has been redesigned and reorganized? They now have a page for summary affirmances and a “Appellate Library.” It looks as if the Library page is where briefs will be found. ACCA had earlier announced it would start posting briefs as does the CGCCA and does CAAF in granted cases. They now list “short form affirmances” in a separate list (in the past we have had to assume summary affirmance on cases with no written opinion).
 

• United States v. Griego. The case follows several others from ACCA with a similar issue.
  
  • In light of United States v. Gonzalez, 19 M.J. 466 (C.A.A.F. 2020) and United States v. Wall, 79 M.J. 456 (C.A.A.F. 2020), the CAAF held this court "prejudicially erred when [we] acted on Appellant's sentence after setting aside the convening authority's action." Griego, 80 M.J. at 188. Simply stated, we erred in our initial [review here].” 
• United States v. Felton.
  
  • Appellant contends his conviction for using disrespectful language toward a noncommissioned officer (NCO) is factually insufficient because the government failed to prove that he knew the alleged victim was an NCO.  While we agree the conviction must be set aside, we do so for a different reason. 
    
  • The court finds the prosecution proved that Appellant knew he was speaking to a “SGT.” However, the court finds legalinsufficiency because the language used was not sufficiently “disrespectful as envisioned by the President’s definition of that term.” Slip op. at 4. The court reassessed the sentence on the remaining findings and affirmed the sentence.

 

• United States v. Clemmons. Appellant claims his trial defense team provided ineffective assistance of counsel by presenting alternate theories of defense and by failing to call him as witness at trial. As discussed below, we disagree and affirm the findings and sentence.
  
  • It was objectively reasonable when “Appellant's defense team lodged a two-prong defense. First, they argued the government failed to prove beyond a reasonable doubt that appellant was the shooter. Second, they asserted that even if the panel believed appellant was the shooter, he did not shoot with the specific intent to kill but rather acted in self-defense or in defense of others based upon the verbal arguments, threats, and physical altercation that occurred outside of the Thirsty Parrot. 
    
  • No deficiency with Appellant’s decision not to testify.
    
    • In the standard colloquy Appellant said it was “his “personal decision not to testify.”
      
    • His claim he was not prepared by counsel to testify is subsumed.
      
    • There was no evidence Appellant took the opportunity during an overnight recess after findings to argue the point with counsel.
      
    • There was no protest in the post-trial submissions to the convening authority.
      
    • “Taken together, appellant's "failure to speak up at or after trial belies his assertion that his desire to testify was improperly cut off' by the actions of his defense counsel or the strategy employed by his defense team. We conclude that appellant's absolute right to testify was not diminished or inhibited by any deficient performance on the part of his trial defense team.”
• United States v. Winters. Appellant challenges the CA decision not to waive all automatic forfeitures. The CA signed the request “approved.” However, in the CAA the CA automatic forfeitures were "[a]pproved." “However, the convening authority specifically wrote, "Automatic forfeitures in the amount of $2891.40 pay per month were waived for a period of 6 months, to be paid to [DN]." Unlike the signed memorandum that approved the waiver of pay and allowances, the convening authority's action included only payin the specifiedamount.” Slip op. at 2. (emphasis in the original). The court took corrective action to effect the original memorandum of approval.

 
NMCCA
 

• United States v. Miller. An incomplete record case in which the NMCCA remands to the convening authority for a new action. Missing were 98 pages of motions, replies, and exhibits. Buried in those documents was some Article 13, UCMJ, credit. Essentially, the omissions are significant “in terms of quality and quantity” and were substantial. Presuming prejudice, the court set-aside both the CAA and EoJ.

 

• United States v. Jones. Appellant challenged the providence of his guilty pleas, alleged an abuse of discretion with the admission of various sentencing exhibits; and (again) an error in the entry of judgement. The findings and sentence were affirmed, but an amended EoJ was ordered.
  
  • The issue appears to come from Appellant’s inability to remember the exact places where his distribution and use of controlled substances happened and to whom. The NMCCA found that where and to whom is not a substantial enough inconsistency with the charged offense because those “facts” are not elements of the offenses. The NMCCA did impliedly suggest that the various “inconsistencies” could have been resolved by the MJ asking more direct and specific follow-up questions. 
    
  • On the sentencing exhibits the NMCCA takes a broad view of what is part of a continuous course of context properly putting Appellant’s charged offenses in context. The NMCCA adopts the MJ’s use of United States v. Ross, 34 M.J. 183 (C.M.A. 1992) as a rationale.

 
IN THE NEWS—PENDING APPELLATE CASES
 

• Navy Times reportsthat a CPO in Bahrain is pending SPCM for attempting to record “women” in a private area from March to June 2020.

WORTH THE READ
 

• Are you unsure if President Trump violated the concept of command responsibility when he granted pardons to servicemembers accused of war crimes? Stuart Ford is not sure either as he surveys the question in Has President Trump Committed a War Crime by Pardoning War Criminals? 35 AM. U. INT’L L. REV. 757 (2020). Seealso, Brian Finucane, A Commander’s Duty to Punish War Crimes: Past U.S. Recognition. Just Security, 4 December 2020; Wallach & Marcus, Command Responsibility, in Cherif Bassouni, International Criminal Law (3d Ed. 2008).

 

• Franze & Anderson, Amicus Curiae at the Supreme Court: Last Term and the Decade in Review. National Law Journal, 18 November 2020.

 

• Standage v. Braithwaite, No. ELH-20-2830, (D.C. MD Dec. 22, 2020). This is the lawsuit filed by Midshipman Standage seeking declaratory and injunctive relief regarding his recommended disenrollment from the Naval Academy. The suit was dismissed without prejudice as not yet ripe.

 

• Shana-Tara O’Toole, Why We Filed: Woodard v. United States. Due Process Institute 21 December 2020.
  
  • Due Process Institute filed an amicus briefat the U.S. Supreme Court (SCOTUS) in support of granting certiorari in Woodard v. United States.
    
  • We filed in this case because we believe that SCOTUS should strike down requirements in the Tenth Circuit and other appellate courts that place undue burdens on defendants to show their due process rights have been violated by prosecutorial pre-indictment delay. We are especially honored that former U.S. Solicitor General Michael Dreeben and his team at O’Melveny & Meyers LLP are representing us pro bono in this matter.
    
  • The brief argues, among other issues, that the Court should protect defendants’ rights against lengthy and unnecessary pre-indictment delays.
    
  • Certiorari was denied in Woodard, 2020 U.S. App. LEXIS 12431 (U.S. Nov. 2, 2020).

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Phil Cave

Military Justice Editor