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Dateline: 30 October 2020 (as of 1200).
 
SUPREME COURT
 
Fed. Dist. Ct.
 

• Lorrance v. Commandant.

 
This matter is a petition for habeas corpus filed under 28 U.S.C. § 2241, challenging Petitioner's conviction by general court-martial. At the time of filing, Petitioner was confined at the United States Disciplinary Barracks in Fort Leavenworth, Kansas. This matter is before the Court on Respondent's Motion to Dismiss (Doc. 10) in light of the Petitioner having received a Presidential Pardon. Petitioner has filed a Response (Doc. 13), and Respondent has filed a Reply (Doc. 14). The Court held a hearing on the motion on January 8, 2020, and took the matter under advisement. The Court, determining that Petitioner's acceptance of the Pardon was an admission of his guilt leaving this matter without a case or controversy, finds that the motion should be granted.
 
Note the discussion of whether accepting an unconditional pardon not based on innocence is in fact and admission of guilt.
 
CAAF
 

• The Court sent United States v. Cabrera back to NMCCA for a do-ever after that court gets affidavits relevant to an IAC claim against both trial and appellate counsel.

 
There were various discovery issues at trial which caused a mistrial followed by a retrial. The initial NMCCA opinion. In that opinion the only issues raised were a double jeopardy claim and a failure to state an offense claim. However, the interesting issues now are:
 
DID LTCOL KASPYRZK’S SUBSTANTIVE PARTICIPATION INAPPELLANT’S CASE WHILE SIMULTANEOUS LY ALLEGEDLYAPPLYING FOR EMPLOYMENT TO SERVE AS THE PROSECUTION’S EXPERT ADVISOR UNDERMINE THE PUBLIC’S CONFIDENCE IN THE JUDICIAL PROCESS?
 
WERE THE TRIAL AND APPELLATE DEFENSE COUNSELINEFFECTIVE WHERE THEY FAILED TO FILE A MOTION TOCOMPEL THE GOVERNMENT TO PRODUCE REQUESTEDDISCOVERY REGARDING LTCOL KASPYRZK’S ALLEGED CONFLICT OF INTEREST AND FAILED TO RAISE THE ISSUE ONAPPEAL?
 
It is not clear from the remand order if the military judge was applying for a position in the Navy’s version of TCAP.
 
It seems to me based on the Spath Issue, the MJ issue in Bergdahl, and now this case that it’s a necessary voir dire question to the MJ about their retirement status and job prospects. These cases present an unhappy development and something the MJs should be thinking about sua sponte.

 
ACCA
 

• United States v. Brooks. Members convicted Appellant of three child rapes and sentenced him to a DD and 25. On appeal there were three issues but the Court only addressed one.

 
The prosecution admitted over defense objection a “missing poster and two photos of the child sitting against the concrete wall.” The court found no error because in the context of all the evidence the evidence was “not particularly material” and “the quality was not substantial.” Odd Mil. R. Evid. 403 conclusion then?
 
Anyway, findings and sentence affirmed.
 

• United States v. Evans. Members convicted the appellant of sexual assault and conspiracy to obstruct justice. He was sentenced to a DD, 15, and almost everything else.

 
This case is before us for review pursuant to Article 66, UCMJ. Appellant raises a multitude of errors, with additional issues embedded throughout his brief. While none of them merit relief, we address two, specifically appellant’s claim that his conviction for conspiracy to obstruct justice is factually and legally insufficient and his claim that his sentence is disproportionately severe as compared to the sentences adjudged at his associates’ courts-martial.
 
Findings and sentence affirmed.
 

• Willenbring v. McCarthy. The ACCA denies a petition for a writ of coram nobis filed in August. The petition suggests that Mangahas should be applied retroactively to him when his case is final in all respects.

 
Willenbring is the statute of limitations case rejected in Mangahas. The statute of limitations issue his pending decision by the U.S. Supreme Court, oral argument having been heard earlier this month. See United States v. Briggs, et. al. The oral argument transcript in Briggs is here.
 

• United States v. Lester. Appellant claims IAC during sentencing because his DC only called three witnesses and did not present E&M related to his stress and attempts to get command help for the stress. The court found reasonable decisions by the defense counsel supported by sufficient foundational investigation to support the decisions. The court notes the inconsistency between the Care inquiry and what the witnesses would say about the appellant’s mental health. Further, the court notes it to be a reasonable strategy not to “shift the blame” (in the case to the command) so as not to undermine the sentencing theme and theory.

 

• United States v. Rice. He’s back with the double jeopardy arguments.

 
Appellant's case is before this court again on remand from our superior court. United States v. Rice, 80 M.J. 36 (C.A.A.F. 2020). In its decision, the Court of Appeals for the Armed Forces (CAAF) reversed our 18 December 2018 decision in part as to the findings and as to the sentence. Id. at 45-46. Specifically, the CAAF "dismissed the two findings of guilty for the specifications of possession of child pornography," (Specifications 3 and 4 of Charge II). Id. The CAAF remanded appellant's case to this court for further review under Article 66, UCMJ, to consider "whether the federal district court conviction for possessing child pornography is or is not a lesser included offense of the [military] distribution specification," (Specification 2 of Charge II). We conclude it is. As such, we must set aside and dismiss Specification 2 of Charge II. See id. at 46. Case dismissed.
 
The CAAF’s 4-1 opinion remanding the case is here.
 
AFCCA
 

• United States v. Shouey. An Article 10, UCMJ, case.

 
On appeal, Appellant raises a single assignment of error: whether the military judge abused his discretion when he denied Appellant’s motion to dismiss the charges with prejudice for the Government’s alleged violation of Article 10, UCMJ, 10 U.S.C. § 810. Appellant specifically raises three time periods when the Government allegedly failed to take immediate steps to try her: (1) a 61- day period from pretrial confinement to preferral of charges; (2) a 21-day period from preferral until completion of the preliminary hearing; and (3) a 37-day period between the preliminary hearing and service of the referred charges.
 
The court summarizes the law as follows,
 
The United States Supreme Court established a four-factor test to determine “reasonable diligence,” assessing: “(1) the length of the delay; (2) the reasons for the delay; (3) whether the appellant made a demand for a speedy trial; and (4) prejudice to the appellant.” Wilson, 72 M.J. at 351 (citing Barker, 407 U.S. at 530). No one factor is “necessary or sufficient to finding of a deprivation of the right of speedy trial.” Cooley, 75 M.J. at 259 (quoting Barker, 407 U.S. at 533). Under the military’s speedy trial jurisprudence, courts “break down the periods of delay, analyze the reasons for each, and may express concern with some but not other periods of delay.” United States v. Danylo, 73 M.J. 183, 190 (C.A.A.F. 2014) (citations omitted). Generally, “[s]hort periods of inactivity are not fatal to an otherwise active prosecution.” United States v. Thompson, 68 M.J. 308, 312 (C.A.A.F. 2010) (quoting Mizgala, 61 M.J. at 127).
 
The court found no errors and affirmed the findings and sentence.
 
CGCCA
 
NMCCA
 

• United States v. Quezada.

 
Appellant raises four assignments of error [AOE]: (1) the military judge undermined Appellant’s presumption of innocence by instructing members on false exculpatory statements in a case where Appellant was charged with a false official statement for the same statement; (2) the military judge erred by instructing the members to disregard evidence of Appellant’s deportation as a result of the conviction; (3) the military judge erred in admitting, over Defense objection, the prior statement of the victim under Military Rule of Evidence [Mil. R. Evid.] 801(d)(1)(B)(ii); and (4) the promulgating order fails to comply with Rule for Court-Martial [R.C.M.] 1114(c) because it does not accurately reflect the charges upon which Appellant was arraigned and the outcome of those charges.
 
Finding no error as to AOE 1-3 the court affirms the findings and sentence and takes corrective action on AOE 4. On the topic of false statements, the court discussed the applicable law,
 

• The standard instruction has been validated in three military cases: United States v. Opalka, [36 C.M.R. 938, 944 (A.F.B.R. 1966), pet. Denied 36 C.M.R. 541 (C.M.A. 1966] United States v. Colcol, [16 M.J. 479, 483 (C.M.A. 1983)]] and United States v. Mahone, [14 M.J. 521 (A.F.C.M.R. 1982)] “[F]alse statements by an accused in explaining an alleged offense may themselves tend to show guilt.” However, a “general denial of guilt does not demonstrate any consciousness of guilt.” To infer consciousness of guilt from a general denial of illegal activity, “the factfinder must decide the very issue of guilt or innocence; and so the instruction would only tend to produce confusion because of its circularity.” Unless the alleged false statement is inherently incredible, independent evidence of the falsity of the statement should be required. [Citing to United States v. Littlefield, 840 F.2d 143, 149 (1st Cir. 1988)].

 
I think the bottom line is a finding of the court that the Appellant had made multiple false statements beyond any alleged in the Article 107, UCMJ, specification and beyond the NCIS interview. The finding therefore justified the false exculpatory instruction.
 

• United States v. Kangha.

 
The Appellant pleaded guilty to various specifications of theft more than $500.00. The Appellant had one issue before the court—did the military lose personal jurisdiction over him because the was discharged from active duty before the court-martial was convened and because there was no Secretary of the Navy order to recall him from retirement.
 
In the News—pending appellate cases.
 
 
Worth the Read.
 

• Michael Gentithes, A Point of Agreement: The Fourth Amendment Requires Bright Lines for Confused Cops. Appellate Advocacy Blog, 27 October 2020.

 
o   When the Supreme Court heard argument recently in Torres v. Madrid, the Justices considered a wide range of interpretive approaches that might help them interpret the meaning of a Fourth Amendment seizure.[1] In a heated discussion of stare decisis, the Justices debated how closely they should hew to their prior decision in California v. Hodari D.,[2] which seemed to hold that officers seize a suspect at the moment they apply physical force to him, whether they successfully subdue him or not. The Justices then debated both the import and meaning of founding-era cases that involved seizures through physical force, though not in the context of criminal investigations. No matter how the Justices seemed to divide on those questions, there was broad agreement across the ideological spectrum that the Court should generate bright constitutional lines for officers to follow in the high-stakes, rapidly-evolving circumstances of an arrest. For instance, Justice Gorsuch spoke of the “clear administrable lines” in Fourth Amendment jurisprudence that require actual physical control to seize a physical object;[3] Justice Breyer urged counsel to argue for a clear bright line, suggesting that the decision in Hodari D. provided “as good a line as any.”[4]
o   The “bright lines for confused cops” theme is common in Fourth Amendment jurisprudence from a variety of interpretive perspectives.
o   Originalists are not alone in this aim to generate clear Fourth Amendment rules.
Appellate Advocacy.
 
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Phil Cave

MJ Editor