Week in Review

Court of Appeals for the Armed Forces

​No. 21-0304/MC. U.S. v. Christopher J. Nelson. CCA 202000108. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:
 
DID THE MILITARY JUDGE AND THE COURT BELOW ERR IN FINDING THAT APPELLANT VOLUNTARILY PROVIDED HIS SMART PHONE PASSCODE TO LAW ENFORCEMENT WHEN THE LAW ENFORCEMENT OFFICIAL CONDUCTING THE INTERROGATION ASSERTED THAT HE POSSESSED A SEARCH AUTHORIZATION FOR THE PHONE AND APPELLANT ONLY PROVIDED HIS PASSCODE BECAUSE APPELLANT BELIEVED HE HAD "NO CHOICE?"

NMCCA decision.

Air Force Court of Criminal Appeals

United States v. Dixon. The MJ sentenced Appellant to one year, a BCD, and a reprimand after he was found guilty of housebreaking and communicating a threat. On appeal the court examined six AOEs.

• Legal and factual sufficiency to communicating a threat.
• Legal and factual sufficiency to housebreaking.
• The recklessness mens rea communicating a threat violates the First Amendment.
• Improvident guilty plea because unlawful entry is not a lesser-included offense of housebreaking.
• Post-trial error.
• Denial of Pierce credit.

Case remanded to correct post-trial error, so Appellant has to wait to find out if his other claims of error have merit and get relief (he has served the one year--trial was in 2019--which moots his Pierce credit issue if nothing else).

The dissent argues the CAA is neither ambiguous or incomplete and would proceed to the merits of the AOEs. Relying on his prior writings, Judge Lewis finds

​I can discern no colorable showing of possible prejudice to Appellant as he did not request any relief on the adjudged sentence in his clemency submission and told the convening authority there “is nothing for you to do.”

United States v. Tellor. Making his second visit after remand for post-trial error corrections, Appellant raised nine issues to no avail.
​

• MJ abused his discretion by allowing hearsay testimony.
• MJ abused his discretion when he allowed the victim to exceed the permissible scope of her unsworn statement.
• MJ abused his discretion by erroneously excluding impeachment evidence offered by the Defense.
• Trial counsel’s sentencing argument was improper.
• Was outside influence was improperly brought to bear on any court member.
• Did Appellant’s commander’s disparaging post-trial comments to Appellant—not included in the record of trial or allied papers—unlawfully increased Appellant’s punishmen.
• Was there cumulative error on the sentence.
• Sentence severe.
• Relief for the conditions of his post-trial confinement.

Navy-Marine Corps Court of Criminal Appeals

United States v. Davis (a mystery case on the NMCCA website). A military judge sentenced Appellant  to 10 years, a DD, and RIR after he pled guilty to twice distributing CP, and one each of receiving, possessing, and indecently visually recording CP.

In his sole assignment of error [AOE], Appellant contends that the minor victim's designee provided an improper victim impact statement by including hearsay conversations with the victim's non-testifying mother, statements of hypothetical future impacts, and argument on behalf of the community. We find that Appellant waived the issue and affirm.

In this case the defense "affirmatively declined" to object, even though the MJ asked if there was an objection.

Appellant's defense counsel expressly told the military judge he had reviewed the statement and when asked whether he had any objection stated, "No, Your Honor." Further, when asked by his counsel during his own unsworn statement whether he agreed with "what [Ms. Hart] said in her statement," Appellant responded "Yes. Completely."

Pending appellate cases

United States v. Hart. The appellant has pleaded guilty to "advocating supremecist and extreme doctrine," as well as illegal possession of a firearm and ammunition, and illegally dealing in firearms. (All based on NCIS reporting.) It appears he was sentenced to 23 months and a DD.

In February, Navy Times reported that the service was uncertain how many sailors it had ousted due to “supremacist or extremist conduct,” because there was no record for how many sailors have separated under the corresponding section of the Naval Military Personnel Manual.

Worth the read

Prof. Colin Miller reminds us that In August, three proposed amendments to the Federal Rules of Evidence were released for public comment. The public comment period closes on February 16, 2022. And tells us he will cover these proposed amendments. The first is a proposed amendment to Federal Rule of Evidence 106 (the rule of completeness). (More next week.)

​Republic of Korea. According to theYonhap News Agency. 

Military sex crimes will be tried in civilian courts, not in military courts, as the National Assembly on Tuesday approved a revision of the military justice system in the wake of suicide deaths of sexual harassment victims at barracks. Military sex crimes will be tried in civilian courts, not in military courts, as the National Assembly on Tuesday approved a revision of the military justice system in the wake of suicide deaths of sexual harassment victims at barracks.

Under the revision of the Military Court Act, all sex crimes in the military will be tried at civilian courts from the beginning. Also to be dealt with by civilian courts, rather than courts-martial, include such violent crimes as homicide and crimes that service members committed before joining the military.

A former Army major accused of killing three neighbors to eliminate a witness in a court-martial has been sentenced to life in prison, Kentucky’s attorney general said. Apparently, Martin was ultimately discharged from the Army and sentenced to 90 days in jail after being convicted by the military court of mishandling classified information and assault on a child,
Military.com.

Cheers, Phil Cave