Week in Review

Court of Appeals of Alaska

Lee v. Alaska. See also State v. Morley, 952 P.2d 167, 180 (Wash. 1998) (en banc) ("Morley expressly waived his right to be tried by a jury, and he voluntarily submitted his trial to a military judge. Given that he was tried by a military judge, the alleged differences between military and civilian juries are irrelevant."); State v. Graves, 947 P.2d 209, 215 (Or. 1997) (Edmonds, J., concurring) ("There is no indication in this record that defendant's pleas were not factually based or not made voluntarily and intelligently. . . . Defendant should not be heard to complain about deficiencies in a fact-finding process in which he did not participate and which did not lead to the judgments of conviction in issue.").

Lee [unsuccessfully] argues that military adjudications should not count as prior felony convictions for purposes of Alaska presumptive sentencing law because defendants in military tribunals are not entitled to a unanimous verdict by a jury of their peers. For the reasons explained here, we conclude that the trial court could properly rely on Lee's prior military conviction for purposes of Alaska's presumptive sentencing scheme because the record shows that Lee voluntarily and intelligently pleaded guilty to the prior felony with the aid of counsel, waiving his right to any trial and signing a four-page stipulation admitting to his guilt.

Court of Appeals of Mississippi

Lowe v. Mississippi. For those litigating the issue of "context" testimony given by MCIO witnesses, Lowe is another case for the quiver. Professor Friedman sees such evidence as violative of the Confrontation Clause. You might find United States v. Combest, No. NMCCA 201100185, 2011 CCA LEXIS 638 (N-M Ct. Crim. App. Aug. 16, 2011) (mem. op.) pet. denied 70 M.J. 374 (C.A.A.F. 2011) of some help. Capt John S. Reid, Is it Hearsay? A Practical Primer, 43 THE REPORTER 22, 29 (2016) seems to take an opposing view. You might also consider,

This court has previously criticized the "'apparently widespread abuse'" of the background exception to the hearsay rule, although not in the particular context of the Kansas U.S. Attorney's Office. Cass, 127 F.3d at 1223 (quoting 2 McCormick on Evidence (4th ed.) § 249, at 104). We do not suggest that the problem is any more pronounced in the Kansas U.S. Attorney's Office than elsewhere, but we wish to remind all U.S. Attorney's Offices that, the Supreme Court stated more than seventy years ago, the U.S. Attorney "is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done."

Berger v. United States, 295 U.S. 78, 88 (1935). See also, United States v. Hinson, 585 F.3d 1328, 1337-38 (10th Cir. 2009) cert. denied, 130 S. Ct. 1910, 176 L. Ed. 2d 367 (2010), or United States v. Silva, 380 F.3d 1018, 1019 (7th Cir. 2004).

Court of Appeals for the Armed Forces

No. 21-0357/AF. U.S. v. Manuel Palacios Cueto. CCA 39815. 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 issues:
 
I.  WHETHER TRIAL DEFENSE COUNSEL WERE INEFFECTIVE.
 
II.   WHETHER TRIAL COUNSEL COMMITTED PROSECUTORIAL MISCONDUCT WHEN THEY STATED THAT THEY REPRESENTED "THE PURSUIT OF JUSTICE" AND ARGUED JUSTICE WOULD ONLY BE SERVED IF APPELLANT WAS CONVICTED AND ADJUDGED A SUFFICIENT PUNISHMENT.

AFCCA decision here.

1. Appellant alleges that he was denied effective assistance of counsel. He asks this court to consider five deficiencies in the performance of trial defense counsel: (1) failure to file a motion to suppress Appellant’s statements to his first sergeant; (2) ineffective cross-examination of MT; (3) failure to object to findings instructions and the Government’s argument regarding bodily harm; (4) failure to submit a timely discovery request; and (5) preparation of an ineffective sentencing case.

2. Appellant contends the trial counsel committed prosecutorial misconduct when stating that they represented “the pursuit of justice” and argued that justice would only be served if Appellant was convicted and adjudged a sufficient punishment. We have considered the prosecutors’ statements and arguments and find error.

     a. At voir dire STC said, "My name is [ ]. I’m the circuit trial counsel and I’m stationed at Langley Air Force Base. I am TDY here to represent the United States of America in the pursuit of justice in this case."

     b. ATC said in opening, "Now I ask you all to repair the little that can be repaired and bring justice to [MT] by finding [Appellant] guilty of all charges and specifications that he faces today."

     c. STC said on findings, "Good morning. I feel like it’s been months since I first spoke with you during voir dire. And as I go through my argument today, this will be the last time that I speak with [sic] before this trial becomes yours. Our duties will be over and your duties will begin. And you will have the ultimate decision on what happened in this case and whether justice will be served, or whether [Appellant] will be acquitted."

As Paul Harvey would say, there is more to the story.

No. 22-0052/AR. U.S. v. Samuel B. Badders. CCA 20200735. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862 (2018), it is ordered that said petition is granted on the following issue:
 
WHETHER THE ARMY COURT HAD JURISDICTION OVER THIS GOVERNMENT APPEAL OF THE MILITARY JUDGE'S POST-TRIAL ORDER GRANTING A MISTRIAL.

​ACCA decision here. Post-trial, the military judge granted a mistrial and the government appealed. 

No. 22-0105/AR. United States, Appellant v. David J. Rudometkin, Appellee. CCA 20180058. Notice is given that a certificate for review of the decision of the United States Army Court of Criminal Appeals was filed under Rule 22 on this date on the following issues:
 
WHETHER THE ARMY COURT ERRED BY NOT PROPERLY CONSIDERING THE MILITARY JUDGE'S POST-TRIAL 39(a) PROCEEDINGS RELATING TO APPELLANT'S REQUEST FOR MISTRIAL.
 
WHETHER THE MILITARY JUDGE CLEARLY ABUSED HIS DISCRETION WHEN HE DID NOT GRANT A MISTRIAL AND FOUND THAT RELIEF WAS NOT WARRANTED UNDER LILJEBERG v. HEALTH SERVICES ACQUISITION CORP., 486 U.S. 847 (1988).

ACCA decision here. A government motion for reconsideration and reconsideration en banc was denied.

Air Force Court of Criminal Appeals

United States v. Beehler. A GP to possessing CP and distributing CP, for which he was sentenced to 24 months, TF, RiR, and a DD. The two issues on appeal are,

• TC committed prosecutorial misconduct by improperly focusing his sentencing argument on uncharged conduct.
  
• TC committed prosecutorial misconduct by improperly arguing for four years of confinement during his sentencing argument, when Appellant’s PTA capped confinement at two years.

There was no error because,

• The uncharged conduct was properly before the MJ.
  
• The uncharged conduct was proper aggravation, as it was "closely related in time, type, and outcome to his possession."
• This was an MJA case.

United States v. Dickson. GP to divers use of cocaine, meth, and marijuana, dereliction, disobedience of a GO, for which members sentenced him to 12 months, Forfs x 12, RiR, and a reprimand. The issues are,

• TC engaged in prosecutorial misconduct by making improper arguments during sentencing argument. (A recurring issue in AF cases.)
  
• The sentence is inappropriately severe.
  
• The CA erred by failing to take action on the sentence.
  
• Appellant’s discharge from the Air Force, while his case was still pending appellate review, deprived him of due process and violated guarantees of equal protection. (There are a number of AF cases with this issue.)
  
• The AF’s failure to follow its own regulations when it discharged Appellant and while his case was still pending appellate review, constituted cruel and unusual punishment.

The court finds part of the TC argument error (mischaracterized Appellant's service and argued facts not in evidence, lack of remorse). Ultimately, the court finds no prejudice in this members for sentencing case. The court notes there were no "curative" instructions given. 

​One judge dissented on resolution of the post-trial process error.

Army Court of Criminal Appeals

United States v. Sainz. The Appellant pled guilty to possessing controlled substances. He was sentenced to six months, RiR, and a BCD, including for one crime he did not commit. The remaining offenses are affirmed as is the sentence.

 This case is not hard. The military judge accepted appellant's plea to   possessing a substance the military judge knew appellant did not possess. Based on the providence inquiry, everyone at trial, to include the military judge, knew appellant was not guilty of the specification the government charged. Appellant did
not possess psilocybin. It does not matter, for the purposes of accepting the plea, that the substance was similar, or even substantially similar. It was not the controlled substance set forth in the charge, so the military judge did not have an adequate factual basis for accepting the plea. Therefore, we set aside appellant's conviction for Specification 5 of Charge II. 

Navy-Marine Corps Court of Criminal Appeals

United States v. Williams, __ M.J. ___ (N-M Ct. Crim. App. 2022). Appellant pled guilty to attempted sex abuse of a child by indecent exposure, attempted sex abuse of a child involving indecent communications, and viewing CP. He was sentenced to 33 years, RiR, and a DD.

Appellant asserts one assignment of error:

Should this Court modify the Entry of Judgment to reflect that Appellant’s adjudged and automatic reductions in rank were suspended and—by operation of law—remitted after suspension?

​We find error requiring corrective action arising from an ultra vires provision of the pretrial agreement, and the subsequent convening authority’s action taken based on that improper term. We further find the Entry of Judgment was incorrect in omitting the suspension of the automatic reduction of paygrade. We take corrective action in our decretal paragraph and issue a revised Entry of Judgment.

Appellate Advocacy

Jospeph Reglia, Framing the Crux of Your Arguments. Appellate Advocacy Blog, Feb. 5, 2022.

Chekhov's Gun.