Week in Review

Supreme Court

​From the great Prof. Berman’s Sentencing Law & Policy.

The Court was notably unanimous in Caniglia v. Strom, No. 20–157 (S. Ct. May 17, 2021).bThe start and close of the short opinion for the Court by Justice Thomas serves as a useful summary:

Decades ago, this Court held that a warrantless search of an impounded vehicle for an unsecured firearm did not violate the Fourth Amendment.  Cady v. Dombrowski, 413 U.S. 433 (1973).  In reaching this conclusion, the Court observed that police officers who patrol the “public highways” are often called to discharge noncriminal “community caretaking functions,” such as responding to disabled vehicles or investigating accidents.  Id., at 441.  The question today is whether Cady’s acknowledgment of these “caretaking” duties creates a standalone doctrine that justifies warrantless searches and seizures in the home.  It does not....

What is reasonable for vehicles is different from what is reasonable for homes.  Cady acknowledged as much, and this Court has repeatedly “declined to expand the scope of . . . exceptions to the warrant requirement to permit warrantless entry into the home.”  Collins, 584 U.S., at ___ (slip op., at 8).  We thus vacate the judgment below and remand for further proceedings consistent with this opinion.

Intriguingly, Justices Alito and Kavanaugh write distinct concurring opinions, both longer than the opinion of the Court, in order to set out questions unresolved and examples of what Justice Kavanaugh views as "warrantless entries that are perfectly constitutional under the exigent circumstances doctrine."  Here is a notable passage from Justice Alito's concurrence that brings to mind a famous commercial (footnotes removed):
​
Today, more than ever, many people, including many elderly persons, live alone.  Many elderly men and women fall in their homes, or become incapacitated for other reasons, and unfortunately, there are many cases in which such persons cannot call for assistance.  In those cases, the chances for a good recovery may fade with each passing hour.  So in THE CHIEF JUSTICE’s imaginary case, if the elderly woman was seriously hurt or sick and the police heeded petitioner’s suggestion about what the Fourth Amendment demands, there is a fair chance she would not be found alive.  This imaginary woman may have regarded her house as her castle, but it is doubtful that she would have wanted it to be the place where she died alone and in agony.

Army Court of Criminal Appeals

United States v. Hale. In this contested MJA case, Appellant was sentenced to one year confinement, a DD, and a reduction; because of two specifications of abusive sexual contact and one of sexual assault. There were three AOEs, one of which got partial relief—substitution of an LIO for one of the specifications. The sentence was however affirmed.

​United States v. Hayes. Appellant was sentenced by an “enlisted panel” to 21-months confinement, a DD, and a reduction; because he three times attempted child sexual abuse and two times attempted indecent communications to a child.

Air Force Court of Criminal Appeals

​United States v. Rodela. Scheduled for oral argument 13 July 2021, issues not listed.
 
United States v. Gonzalez. In this MJA/GP case, Appellant was sentenced to six days confinement, a BCD, and stuff; because he used cocaine and MDMA quite a bit. The primary issue was sentence appropriateness.
 
United States v. Palacios-Cueto. An “enlisted” panel sentenced Appellant to 90 days confinement, a BCD, and a reduction; because they found him guilty of two specifications of abusive sexual contact. The Appellant raised eight issues.

• Whether his convictions for a kiss on the lips and a touch of the stomach are factually and legally sufficient.
  
• Whether his due process rights were violated when the Government argued the victim was incapable of consenting to a kiss due to impairment by alcohol when Appellant was charged with causing bodily harm.
  
• Whether the military judge erred by denying the panel members’ request to review Appellant’s statements to investigators.
  
• Whether the military judge erred by denying the Defense challenge for cause of a panel member.
  
• Ineffectiveness of counsel.
  
• 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.
  
• Whether the record of trial is complete.
  
• The cumulative-error doctrine requires relief.
  

​The elements of Specification 2 of the Charge alleging abusive sexual contact in violation of Article 120, UCMJ, for which Appellant was convicted include: (1) that Appellant committed sexual contact upon MT by touching MT’s stomach with his hand;11 (2) that MT was incapable of consenting to the sexual contact due to impairment by alcohol; (3) that Appellant knew or reasonably should have known of MT’s impairment; and (4) that Appellant did so with the intent to gratify his sexual desire.

​This case illustrates the continuing difficult of the several different theories in a sex offense case and how the prosecution wanders among the theories.

​“The Government first gave the members the impression that its theory of the kissing, as charged in the Specification of the Additional Charge, was that MT was too incapacitated to consent, but its evidence and argument made clear its theory was lack of consent and not incapacitation.”
 
Appellant asserts, essentially, that he was not on notice that the Government’s theory of “bodily harm” to MT included her incapacitation by intoxication to consent to the alleged kissing. On appeal the Government asserts Appellant was in fact prosecuted for the kissing on a theory of failure to consent—before the victim became incapacitated. We agree with the Government that at trial it pursued a theory of lack of consent, not inability to consent. Even MT admitted that at the time of the kiss, she was still capable of consenting and did not consent, but at the time of the stomach touching in her room, she was not able to consent. We do not find the assistant trial counsel’s opening statement suggesting otherwise to be of a constitutional magnitude, nor was it so misleading or confusing that any substantial right of Appellant was materially prejudiced.

As to the argument issue--one seen quite often.

The circuit trial counsel introduced himself and his co-counsel before questioning the court members. He stated, 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. I’m assisted today with Lieutenant [ ], he is stationed here at Hanscom. We will be dividing up tasks throughout this trial, and he is what we call the assistant trial counsel. After voir dire, the number of enlisted court members fell below the minimum ratio of one-third of the panel, see R.C.M. 503(a)(2), and the convening authority detailed additional enlisted court members. Before questioning those members, the circuit trial counsel introduced himself and his co-counsel using words very similar as before, including, “I’m stationed at Langley Air Force Base, Virginia, and I’m TDY here to represent the United States of America in the pursuit of justice in this case.” It gets worse, worse enough that the court finds obvious but harmless error.
 
It is inappropriate for counsel to reference “the jury’s societal obligation . . .if it suggests the panel base its decision on the impact of the verdict on society,a victim, and the criminal justice system as a whole, rather than the facts of the case.” United States v. Condon, No. ACM 38765, 2017 CCA LEXIS 187, at *53 (A.F. Ct. Crim. App. 10 Mar. 2017) (unpub. op.), aff’d, 77 M.J. 244 (C.A.A.F.
2018). 

Judge Meginley, partially dissenting

​However, I respectfully cannot agree with the court’s decision to affirm the finding of guilty to Specification 2 of the Charge, which alleged that Appellant made sexual contact upon MT by touching her stomach with his hand. I would find this specification legally and factually insufficient, failing to meet the element that Appellant intended to gratify his sexual desire by touching MT’s stomach, and would set aside Appellant’s adjudged punishment of a bad-conduct discharge. Further, I find there was ineffective assistance of counsel and that trial counsel committed prosecutorial misconduct during their arguments.

​ 
United States v. Beavers. In this MJA/GP case Appellant was sentenced to four months confinement, a BCD, forfeitures, a reduction, and a reprimand; because of using controlled substances over 20 months. Appellant is making his second appearance after remand to correct post-trial errors.

United States v. Green. In this MJA/GP case, Appellant was sentenced to 10 months confinement, a BCD, and other stuff, because he admitted to three instances of indecent exposure. This is Green’s second appearance at AFCCA after a remand to correct post-trial errors.

United States v. Hepfl. In this MJA/GP case, Appellant was sentenced to 11 months confinement, a BCD, forfeitures and reduction, and the really harsh reprimand, because he had used a controlled substance four times over 20 months. Another case remanded for post-trial error.

United States v. Blow. In this MJA/GP case, Appellant was sentenced to five months confinement and a BCD, because he admitted to two 92’s and an A&B. Another case remanded for post-trial errors.

Navy-Marine Corps Court of Criminal Appeals

​ 
United States v. Griffin, __ M.J. ___ (N-M Ct. Crim. App. 2021). In this MJA/GP case, Appellant was sentenced to five months confinement and a BCD; because he admitted to an assault and battery and wrongful distribution of intimate visual images. On appeal he had two issues: (1) improper argument by the trial counsel; and (2) the Court should refuse to accept for appellate review a record that is not substantially complete and has not been certified by the detailed court reporter.

In a supplemental brief,

Did the hearing officer’s failure to resolve the disputed level of violence of Appellant’s alleged misconduct conflict with the requirement in United State v. Miley? (4) Should military servicemembers have heightened minimum Due Process rights at a vacation hearing— requiring a verbatim transcript and a meaningful right to present witnesses and evidence—than those provided to civilians at parole revocation hearing pursuant to Morrissey v. Brewer? (5) Did the pretrial agreement terms violate appellate law and public policy because, by their plain language, they placed Appellant on probation irrespective of his status of being subject to the UCMJ? (6) Did the pretrial agreement’s failure to define “a material breach” violate appellate law and public policy, and did the military judge abuse his discretion by failing to inquire as to the parties’ understanding of this provision?
Note the post-trial vacation hearing for a post-trial arrest for assault and false imprisonment of his spouse.

United States v. Millette, __ M.J. ___ (N-M Ct. Crim. App. 2021). Appellant was sentenced to five years and a DD by an “enlisted” jury for sexual abuse of his 15-year-old sister-in-law.
He asserts six assignments of error [AOEs], which we renumber as follows: (1) the military judge abused his discretion by denying a Defense motion for in camera review and production of the victim’s mental health diagnoses, treatment, and prescribed medications; (2) the military judge abused his discretion by allowing the Government to admit expert testimony that Appellant fit the profile of a perpetrator who grooms children for sex; (3) the evidence is legally and factually insufficient to support his conviction; (4) the military judge committed plain error by allowing the victim to recommend a specific sentence in her unsworn victim impact statement; (5) the record of trial is incomplete because the military judge failed to attach four enclosures of a Defense motion;1 and (6) the findings and sentence should be set aside under the cumulative error doctrine.

We find merit in Appellant’s first, second, and fourth AOEs, order some of the language stricken from the specification, affirm the finding as to the remaining language, and reassess the sentence.

Here, after openly discussing with family members and NCIS and during her civil deposition her mental health diagnoses and treatment, including her recollection of her prescribed medications, Stacy asserted her psychotherapist-patient privilege to prevent Appellant’s trial defense counsel from accessing this information in her mental health records. The Defense then moved that the requested information was not privileged because the confidential communication that the psychotherapist-patient privilege protects does not include diagnosis and treatment information; 7 (2) Stacy waived any privilege by repeatedly discussing her mental health issues with various third parties; and (3) even if not waived, the privilege should yield to in camera review and production of the requested information as constitutionally required. A Defense expert opined that based on the information and symptoms Stacy had already revealed, Stacy could have Borderline Personality Disorder, which could further manifest in attention-seeking and manipulative behaviors, particularly when associated with fear of abandonment.

The impact of BPD in alleged victims of a sexual offense suggest two significant conclusions for trial practitioners: they may be more likely to engage in consensual sexual behavior which they later regret (and coupled with need for a secondary gain, make a false accusation) and, they also may be more likely to become a victim. See R.A. Sansone & L. A. Sansone, Sexual Behavior in Borderline Personality: A Review. Innov. Clin. Neurosci, 14-18, 8 Feb. 2011, Nat’l Center for Biotechnical Information, Nat’l Institute of Health. See also, De Zutter, A.W.E.A., Horselenberg, R. & van Koppen, P.J. Motives for Filing a False Allegation of Rape. 47 Arch. Sex Behav. 457–464 (2018). 
​
Access to and admission of a history of BPD requires a nuanced balancing act by the military judge, which the court in Mellette takes on. (N.B. What effect if any will the grant in Beaugue, also a NMCCA case, have on this case?

 Here, the military judge erred in “summarily rejecting” the waiver argument. and in [c]oncluding the requested information was not subject to production under R.C.M. 703(f).
Failing to follow the procedures under Mil. R. Evid. 513(e)(3).
 
We have previously identified several key areas where courts have overridden privileges in order to protect against the infringement of an accused’s weighty interests of due process and confrontation: “(1) recantation or other contradictory conduct by the alleged victim; (2) evidence of behavioral, mental, or emotional difficulties of the alleged victim; and (3) the alleged victim’s inability to accurately perceive, remember, and relate events.” Payton-O’Brien, 76 M.J. at 789. As we explained, “[t]he second and third areas, in particular, . . . go to the very essence of witness credibility and reliability—potential defects in capacity to understand, interpret, and relate events. Additionally, these areas intersect with the medical community’s ability to interpret that credibility.” J.M. v. Payton-O’Brien, 76 M.J. 782, 789 (N-M Ct. Crim. App. 2017).

The Government expert’s testimony was thus elicited and used in precisely the way the rule against profile testimony forbids. This was not an instance where, as in Huberty, expert testimony about grooming was used to explain the victim’s behavior or to rebut issues in this area raised by a Defense expert. See Huberty, 53 M.J. at 373. Nor was it used as a means of explaining Stacy’s complicity in the secret relationship with Appellant, thus supporting her credibility with respect to her delayed allegations. Rather, the testimony was “admitted for the purpose of showing that Appellant fit the ‘profile’ of a sex abuser.” Id. at 373. It was elicited and used to show that Appellant’s actions were consistent with patterns of grooming behavior exhibited by child sex abusers, in order to support the conclusion that he was guilty of the charged offense of child sexual abuse. The admission of this testimony was therefore erroneous.
See generally, United States v. Huberty, on this topic.

The court concluded error as to the “diverse occasions” language but not as to one event. Considering the Appellant had confessed to the one event that seems a reasonable argument to overcome the prejudice prong.

Another message from Millette,

The defense failed to object to a sentence recommendation in the victim’s unsworn statement, but adopting the plain error test the court found error but no  prejudice.

Note to file. Object when the victim says,

“I suffered in silence for five years before circumstances made me tell the truth of what he had done to me. I think that he needs a significant amount of jail time to think about the pain he has put me through.”  (Emphasis added and in the original.)

Interestingly, trial counsel argued for five years confinement. But the court determines this argument, serendipitously adopting the victim’s number, removes the prejudice.

Note to the fleet. Reread United States v. Ohrt, 28 M.J. 301 (C.M.A. 1989).

Some common nuanced, or not so nuanced sentence recommendations include, that the accused has “[n]o potential for continued service[.]”

Note to DC. You are the gatekeeper here. What you do in sentencing might allow the prosecution to rebut what you put forward in sentencing.

“I believe he should be retained” may open the door.

“I would go to war with him,” said alone is not currently rebuttable, unless the prosecution witness were to say only that “I wouldn’t go to war with him.”

See United States v. Hallum, 31 M.J. 254 (C.M.A. 1990) on how this can get sticky.

LIKELY APPELLATE CASES

United States v. Henderson. A Hill AFB airman has had “State criminal charges in a Clearfield shooting have been dismissed because a military (sic) court-martial is in the works[.] A “Second District Judge David Connors signed an order April 30 dismissing charges against Michael E. Hernandez, 21, who allegedly fired five shots, hitting one man, at a March 14 party. Hernandez faced charges of first-degree felony attempted aggravated murder; five third-degree felony counts of discharge of a firearm; and a second-degree felony count of obstructing justice.”

Cheers, P.C.