Week in Review

Court of Appeals for the Armed Forces

H.K. v. Eichenberger. Writ Appeal petition denied. here is a link to the AFCCA Order in the case.

United States v. Quezada. A "false exculpatory statement" case. Judge Maggs writes for a unanimous court.

​The standard “false exculpatory statements” instruction informs the members that if the accused makes a statement tending to establish his or her innocence, and the statement is later shown to be false, the members may consider “whether this circumstantial evidence points to consciousness of guilt.”
. . . 
​Appellant asserts that the instruction violated his presumption of innocence because he was charged both with committing a substantive offense and with making a false official statement relating to that offense. Upon careful consideration of Appellant’s arguments, however, we find no error. 

Counsel objected to the instruction but did not propose a "tailored instruction" or request any "other modification of the instruction."

NMCCA recognized that the false exculpatory statements instruction is not appropriate for general denials of criminal wrongdoing. As this Court explained in [United States v.] Colcol, [16 M.J. 479 (C.M.A. 1983),] “in order to decide that an accused’s general denial of illegal activity is false, 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.” 16 M.J. at 484. But the NMCCA found this restriction on using the false exculpatory statements instruction inapplicable in this case[.]

Appellant had made a Hills-like argument which NMCCA did not address, so CAAF does.

(Note to appellate advocates. "[S]ome of Appellant’s arguments appear to extend beyond the specific objection to the instructions that Appellant made at trial. The Government, however, has not argued that the Appellant forfeited any of the arguments that he now raises. Accordingly, given the lack of any objection by the Government, and our ultimate conclusion that Appellant’s arguments have no merit, we do not address the plain error standard.")

Appellant argued the instruction undermined the presumption of innocence, the failure to tailor the instruction was prejudicial, the instruction improperly introduced the specter of propensity evidence; and "​ even if the alleged false statement was not a general denial of guilt, the falsity of the statement nonetheless turns on the ultimate question of his guilt or innocence."

In re Cosio. Notice is given that a petition for extraordinary relief in the nature of writ of error coram nobis and mandamus was filed under Rule 27(a) on this date. See below under AFCCA.

Air Force Court of Criminal Appeals

United States v. Silvers. Appellant pled guilty to possession and distribution of CP and communicating indecent language, for which he was sentenced to 36 months, TF, RiR, DD, and a reprimand.
​ 

In re Cossio. Petitioner was convicted in 2004 of various offenses, from which has followed a lengthy trail of litigation. The court has now denied a petition for a writ of coram nobis finding that the petitioner has failed to satisfy several of the threshold requirements for a writ. See also, United States v. Denedo, 66 M.J. 11 (C.A.A.F. 2008) (discussing coram nobis).

​Although a Petitioner may file a writ of coram nobis at any time, to be entitled to the writ he must meet the following threshold requirements:

     (1) the alleged error is of the most fundamental character; (2) no remedy other than coram nobis is available to rectify the consequences of the error; (3) valid reasons exist for not seeking relief earlier; (4) the new information presented in the petition could not have been discovered through the exercise of reasonable diligence prior to the original judgment; (5) the writ does not seek to reevaluate previously considered evidence or legal issues; and (6) the sentence has been served, but the consequences of the erroneous conviction persist.

​Denedo v. United States, 66 M.J. 114, 126 (C.A.A.F. 2008), aff’d, 556 U.S. 904 (2009). “This court uses a two-tier approach to evaluate claims raised via a writ of coram nobis. First, [P]etitioner must meet the aforementioned threshold requirements for a writ of coram nobis. If [P]etitioner meets the threshold requirements his claims are then evaluated under the standards applicable to his issues.” Chapman v. United States, 75 M.J. 598, 601 (A.F. Ct. Crim. App. 2016) (citing Denedo, 66 M.J. at 126). 
​

United States v. Camps. A NG MJA case. Appellant was convicted of abusive sexual contact on two victims, sexual assault on a third, and an A&B. He was sentenced to 46 months, RiR, and a DD.

AOEs: (1) Legal and factual sufficiency as to two of the victims; (2) MJ erred admitting evidence under Mil. R. Evid. 413; and (3) MJ erred in denying the use of a demonstrative aid during the testimony of a defense expert witness.

Grosty: (4) IAC for failing to admit exonerating evidence at trial; and (5) IAC for failure to thoroughly interview a witness and develop that witness’s testimony regarding the bias and motive of two other witnesses to fabricate their testimony at trial.

Sua sponte: Was Appellant was prejudiced by CA’s decision to take no action on the sentence as required.

On the exhibit,

​At trial, the Defense challenged LW’s description of her positioning on the bed when Appellant was alleged to have assaulted her during the incident in question. The Defense presented the testimony of a medical doctor who was present during LW’s testimony and whom the court recognized as an expert in obstetrics and gynecology. The expert testified it “seemed impossible” for Appellant to have been able to “access her vaginal area” based on LW’s testimony and the positioning of Appellant. To demonstrate that difficulty, trial defense counsel sought to utilize “[a] mannequin of the lower torso and pelvis” as a demonstrative aid. Trial counsel objected to the use of the mannequin as misleading. After allowing trial defense counsel to lay a foundation for the use of the mannequin, and evaluating the evidence under Mil. R. Evid. 403, the military judge sustained trial counsel’s objection and did not allow the Defense to use the mannequin as a demonstrative aid.

Finding no material prejudicial error the findings and sentence are affirmed. The majority found it unnecessary to address the IAC claims.

There is a concurrence and dissent, in part, which "takes exception to the voluntariness of the conduct underlying the charged offenses and proof of Appellant’s sexual intent. Additionally, our colleague finds reasons to challenge the credibility of witnesses on whose testimony the findings of guilty necessarily depend."

​Appellant faced five charges with a total of 15 specifications. In total, there were initially eight alleged victims. Appellant was found not guilty of seven specifications of sexual assault[]. Three additional specifications of sexual assault[], and one specification of attempted sexual assault[], were withdrawn and dismissed after arraignment. These are important facts to give some perspective as to what Appellant faced after his case was referred and to resolve the raised issues.

The ROT shows that Appellant led a sexually charged lifestyle, and certainly suggests that he pushed the limits of what could be deemed legally, morally, and socially acceptable behavior. Appellant’s crimes against two of those women, LW and MM, rightfully earned him convictions for those offenses. As such, I agree with the majority in that Appellant’s conviction against MM is factually and legally sufficient. I also agree that there was no evidence Appellant’s trial defense counsel were ineffective and that Appellant did not suffer any prejudice as a result of the convening authority’s failure to take action, or as a result of appellate delay. However, I find the military judge abused his discretion by allowing the testimony of KH under Mil. R. Evid. 413. More importantly, I disagree with the majority’s analysis on whether Appellant’s convictions for his alleged offenses against AM are legally and factually sufficient. For Appellant’s Article 120, UCMJ, offense against AM, I find that conviction legally and factually insufficient; for the Article 128, UCMJ, offense, I find it factually insufficient.

While addressing the Mil. R. Evid. 413 ruling, the dissenting judge observes,

There is a practical aspect to this disconcerting finding: every young man (or woman) who is subject to the Uniform Code of Military Justice, who attempts to further a relationship with something as basic as a simple kiss (or an attempt to kiss) should be prepared to ask for unequivocal, and perhaps documented, consent. If this is the road we are going down, without as much, anything less may now be deemed criminal. See Palacios Cueto, 2021 CCA LEXIS 239, at *72–73 (where appellant was convicted of abusive sexual contact for kissing his victim (and touching her stomach), resulting in possible sex offender registration). 
​

United States v. Rodela. Appellant was convicted of abusive sexual contact. He was sentenced to 12 months, RiR, and a reprimand.

​On appeal, Appellant challenges the legal and factual sufficiency of his conviction. We specified the following issue in granting Appellant’s motion for oral argument: Whether Appellant’s conviction for abusive sexual contact in violation of Article 120, UCMJ, 10 U.S.C. § 920, is legally and factually insufficient because it was reasonable for Appellant to believe the complaining witness consented to Appellant’s conduct by her response or lack thereof. We answer that question in the negative. Finding no error that materially prejudiced Appellant’s substantial rights, we affirm the findings and sentence.
​

United States v. Rodriguez. This is appellant's second appearance in a case with "a long and tortuous history." Appellant was convicted of many specifications of violating orders, consensual sodomy, obstructing justice, and adultery, aggravated sexual assault, aggravated sexual contact, and indecent exposure. He was originally sentenced to 27 years, TC, RiR, and a DD by members, but is now sentenced to six years, TF, RiR, and a BCD. Some of the original convictions were set aside and originally the case remanded for a rehearing on sentence. CAAF also set aside one of the convictions. So the case was remanded for a rehearing on the conviction CAAF set aside and sentence. But, the retrial of the conviction set aside was considered impracticable and dismissed. So, the "torture" continues.

​Appellant now raises three issues before this court: (1) whether the convening authority erred by taking action without providing Appellant the opportunity to submit matters pursuant to Rule for Courts-Martial (R.C.M.) 11059 or his right to receive and respond to the staff judge advocate’s recommendation (SJAR) pursuant to R.C.M. 1106; (2) whether Appellant’s sentence is inappropriately severe; and (3) whether Appellant’s registration as a sex offender represents cruel or unusual punishment or otherwise warrants sentence appropriateness relief.10 We find prejudicial error with respect to issue (1). Because we conclude that remand to the convening authority is appropriate, we do not reach issues (2) and (3) pending the record’s return to this court.

He was finally sentenced to 46 months, RiR, and a DD.
​

Army Court of Criminal Appeals

United States v. Long. Enlisted embers convicted Appellant of a "sexual assault of a fellow female soldier and of a co-workers wife in his on-post housing while his wife, children and other soldiers were asleep in his home." More specifically, three sexual assaults, for which he was sentenced to 18 years, TF, RiR, and a DD.

Appellant challenged the MJ's restriction on the defense voir dire of the members "in prohibiting imprecise and confusing questions about SHARP training."

The defense wanted to ask about,

the Army's Sexual Harassment and Assault Response and Prevention (SHARP) program and "the time between alcohol and the ability to consent to sexual intercourse. " The military judge denied appellant's request, holding that the  proposed questions would only serve to confuse the panel members and "inject an  ssue that otherwise would not be before them." The military judge held that appellant's question was vague because the proposed question did not specify any hypothetical amount of alcohol, thereby rendering the question confusing because the response could be affirmative or negative depending on the amount of alcohol consumed. 

The military judge did, however, permit appellant to inquire about the Army's SHARP training and its inapplicability, as a matter of law, to appellant's case. Specifical1y, the military judge allowed appellant to ask, 

As Soldiers, we all receive a form of SHARP training, do the members agree to follow the military judge's  instructions if they differ from something we've learned in  SHARP? 

Appellant did not object to the military judge's proposed alternative question, nor did appellant amend his original proposed question in a manner that would alleviate the military judge's concerns. 

See n. 5.

Appellant testified, and at least one member sought to ask  three questions relevant to SHARP training; two of which the MJ sustained a defense objection to and a third was allowed. An enlisted member also asked questions relevant to SHARP.

The MJ denied individual voir dire but conducted some general voir dire. The parties agreed to the following instruction.

Panel members, your SHARP training may have indicated that a person cannot consent to sexual activity after consuming alcohol. This is an incorrect statement of­ statement of the law, as a matter of law. You must disregard any training you received in this area when deciding any issue in this case. Instead, you must base all of your decisions on the evidence as you remember it and my instructions to you, to include but not limited to, my instructions to you on consent. 

All panel members responded that they could follow this instruction. Further, all panel members responded in the negative when asked whether any of them felt that what they had learned and heard in SHARP was so engrained in them that they would not be able to set it aside. Appellant's counsel did not request to individually voir dire any panel members subsequent to the military judge's instruction.
. . . 
Immediately following Appellant's testimony ,the military judge instructed the panel members that that they had to disregard any training they received that a person cannot consent after just "consuming alcohol." 

The court finds no abuse of discretion, 

We do not find that, merely because the members asked irrelevant questions concerning SHARP training,
the members refused to follow the judge's instructions that they only consider evidence presented from the witnesses when deliberating. 

We find that the military judge did not abuse his discretion in preventing appellant from asking an imprecise and confusing question regarding SHARP training. 

This reminds me of a case I tried years ago when, on individual voir dire, a member said he could not follow the MJ's instruction (similar to the one above), because it was different from what his commander had told him and because he should follow his commander's guidance. Like it or not, SHARP training is intrusive, intentionally so. It seems to me this case demonstrates the advisability of addressing the elephant during voir dire followed by timely instruction before the case gets started, rather than see what happens as the case develops.

Pending Appellate Cases

United States v. Armstrong. The Gazette reports,

A top para-triathlete at Fort Carson was found guilty of one count of sexual assault and was sentenced to seven years in prison and dishonorably discharged from the Army, Fort Carson officials announced in a press release. 
Master Sgt. Allan L. Armstrong was convicted Dec. 10 and sentenced to forfeit all pay and allowances and be reduced to the grade of private alongside the prison sentence and being dishonorably discharged.

United States v. Zimmerman. An officer panel convicted him this week of sexual assault, sexual abuse of a child, and giving a minor alcohol. He was sentenced to six years, along with TC and a dismissal.

Possible Appellate Cases

United States v. RSM. The San Diego Union-Tribune has a follow up on the USS BONHOMME RICHARD case. Here is a link to the official report of investigation into the fire. And we also know that a defense expert in RSM has suggested an alternate, possible electical, cause.

Worth the Read

• There are two articles of interest for those who drive a "modern" car. Technology is great but as these two article highlights, there are problems for protection of your data from law enforcement intrusion without a warrant.

Gershowitz, Adam M., The Tesla Meets the Fourth Amendment (October 29, 2021). William & Mary Law School Research Paper No. 09-444, Available at SSRN: https://ssrn.com/abstract=3958465 or http://dx.doi.org/10.2139/ssrn.3958465.

Kerr, Orin S., Buying Data and the Fourth Amendment (July 4, 2021). Hoover Institution Aegis Series Paper No. 2109 (2021), Available at SSRN: https://ssrn.com/abstract=3880130.

• United States v. Sinbad. An accused who "survived" two courts-martial (conduct unbecoming and an AWOL).

• Carol Rosenberg of The New York Times reports here on the recusal of the latest judge to preside over one of the Guantanamo military commission cases.

Cheers, Phil Cave