Court of Appeals for the Armed Forces
By order of the Chief Judge, the United States Court of Appeals for the Armed Forces will be closed all day on Friday, November 26, 2021.
For purposes of computation of time and motions to enlarge time under the Court's Rules of Practice and Procedure, November 26, 2021, will be considered a day when the Court is officially closed.
Air Force Court of Criminal Appeals
United States v. Plaster. The military judge sentenced Appellant to 54 months, a DD, RIR, TF, and a reprimand. The Appellant had viewed CP and engaged in indecent conduct. There were five issues.
Appellant asserts that trial counsel committed prosecutorial misconduct during his sentencing argument by arguing facts not in evidence. Specifically, Appellant contends that trial counsel referred to the “dark web” on at least three occasions during argument and also argued that Appellant’s crimes were aggravated by the fact that he “opened door after door after door” in order to access the images of child pornography. Trial defense counsel did not object to any of these references during trial counsel’s argument. Appellant now argues that there was no evidence presented that he accessed the “dark web” or any area of the Internet that would not be accessible to an average user. Additionally, Appellant argues that there was no evidence that Appellant had installed any specialized applications that allowed him to access the “dark web” or that he had to engage in any additional steps to “open” any “doors” to access the charged images.
We believe that counsel should conduct themselves with the same high standards in arguing to a military judge alone as they would in arguing to a court constituted with members, notwithstanding the presumption that a military judge exercises discretion in distinguishing between proper and improper argument. United States v. Montgomery, 20 U.S.C.M.A. 35, 42 C.M.R. 227 (1970); United States v. Moore, 1 M.J. 856 (A.F.C.M.R. 1976). Consequently, in the interest of justice, and the appearance of justice, we have decided, on the facts of this case, to reassess the sentence.
10 M.J. at 800.
United States v. Kennedy, IV. In this GP case the MJ sentenced him to 345 days, a BCD, eight months of forfeitures, RIR, and a reprimand. He was convicted of negligent dereliction of duty, willful damage to private property, A&B on an intimate partner, and aggravated assault by strangulation. The PTA required referral to a SPCM without sentence limitations. The sole issue was the providence of the plea to damaging private property. A charge of assault with a dangerous weapon was withdrawn and dismissed.
Appellant claimed that he damaged a building on base, that it was really military property, and that he should have been charged with damage to military property. He punched a hole in the wall of his dorm room. He also claimed that failure to plead "spoiling" or "wasting" property, meant there was a failure to state an offense.
The court found the F2SO issue waived.
The court found that there was no inconsistency with the charge, the stipulation of fact, and the sworn statements during the Care inquiry--even though all three stated that the property was military property. Odd, since all three items applied to the Article 109.
Finding no prejudicial error, the findings and sentence were affirmed.
United States v. Dejuan Jones. The military judge sentenced Appellant to 20 months, a BCD, TF, RIR, and a reprimand. The Appellant pled guilty to possesses CP on "divers" occasions. He raised sentence appropriateness and post-trial error. The court has remanded the case to the convening authority for post-trial error correction.
Army Court of Criminal Appeals
Coast Guard Court of Criminal Appeals
Navy-Marine Corps Court of Criminal Appeals
United States v. Handte. In this MJA case, the Appellant was sentenced to 13 months, a BCD, and RIR. He pled guilty to attempting to view CP and possessing CP. His primary issue was Article 10, UCMJ, speedy trial. Finding no error, the findings and sentence are affirmed.
Potential appellate cases
United States v. SGM TA. Davis Winkie, Special Forces sergeant major fired gun during domestic assault, prosecutors say. Nov. 4, 2021. Trial is "tentatively" set for March 2022. Says the writer,
It’s not clear why the alleged incidents, which occurred off-post in Cameron, North Carolina, are being prosecuted via court-martial rather than in the civilian justice system.
Worth the Read
Fourth Amendment law is in flux. The Supreme Court recently established, in the landmark case Carpenter v. United States, that individuals can retain Fourth Amendment rights in information they disclose to a third party. In the internet era, this ruling has the potential to extend privacy protections to a huge variety of sensitive digital information. But Carpenter is also notoriously vague. Scholars and lower courts have tried to guess at what the law of Fourth Amendment searches will be going forward—and have reached different, contradictory conclusions.
-Current Term Opinions
Joint R. App. Pro.
Global MJ Reform
LOC Mil. Law