Week in Review

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.

• Did the Government’s failure to serve Appellant with a copy of his ROT error. (Court resolved with an Order.)
  
• Appellant was entitled to relief for the CA’s failure to take action on the sentence.
  
• Did a prosecuting legal office paralegal have a personal conflict of interest, disqualifying the prosecution team.
  
• Sentence appropriateness.
  
• TC improper sentencing argument.

Ultimately the court found no materially prejudicial errors and affirmed the findings and sentence.

​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.

• Appellant has failed to meet prejudice burden.
• Statements were a few, isolated references, in argument spanning 13 pages. (While appellate court's often use page length as an indicator--take care not to miss the one consequential point in 13 (or more) pages.)
• Lack of objection by trial defense counsel.
• it “highly relevant” that this case an MJ presumed to know the law.
• We also presume the military judge is able to filter out improper argument in the absence of evidence to the contrary.
• The weight of the evidence supporting the convictions was strong and amply supports the sentence, which included less confinement than could have been approved under the PTA.

As recommended reading, see United States v. Thomson, 37 M.J. 1023, 1026-28 (A.C.M.R. 1993); United States v. Nellum, 21 M.J. 700, 701 (A.C.M.R. 1993) and Cf. United States v. Barnack, 10 M.J. 799 (A.F.C.M.R. 1981) pet. denied 11 M.J. 292 (C.M.A. 1981). The bottom line.

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

• Matthew Toksen, The Aftermath of Carpenter: An Empirical Study of Fourth Amendment Law, 2018-2021. Pub. pending.

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.

This Article reports the results of a large-scale empirical study of the impact of a transformative Supreme Court decision in federal and state courts. It analyzes all 857 federal and state judgments applying Carpenter from its publication in June 2018 through March 2021. Relying on this unique, hand-coded database, the Article illuminates both the present and future of Fourth Amendment law.

In doing so, it identifies the factors that drive modern Fourth Amendment search decisions—and those that fail to drive them. It examines disagreements among lower courts about the scope and breadth of Carpenter, as some courts apply its concepts expansively while others attempt to narrow it from below. It assesses how state courts apply federal constitutional law, blending federal and state interests in unique ways. And it analyzes the enormous practical impact of the “good faith exception” to the exclusionary rule, which permits the government to use unconstitutionally obtained evidence to convict defendants if such evidence was collected in reliance on prior law. Based on these findings, the Article explores alternative directions that courts may take as they continue to refine Fourth Amendment law and address novel surveillance technologies. In addition to its many contributions to the Fourth Amendment literature, the Article is the most comprehensive empirical study to date of the jurisprudential impact of a Supreme Court case in the years following its publication.

• Robert C. Montgomery, Appellate Court Recusals. Appellate Advocacy Blog, October 28, 2021.

• Ian Austen and Jennifer Steinhauer. Canada Turns Over Military Sexual Assault Cases to the Civilian Courts. New York Times, Nov. 4, 2021. The title can be a bit misleading because the body of the report indicates a number of steps that need be taken to implement such a change.

• Alan Ott, Military Criminal Justice System. Congressional Research Service, Nov. 2, 2021. Look at 3., and you will see some stats Congress is being given on confinement.