Week in Review

United States Supreme Court

Do you have a medical provider accused of writing prescriptions unlawfully? The court has granted a petition on the following issue in Kahn v. United States,

Whether a physician alleged to have prescribed controlled substances outside the usual course of professional practice may be convicted of unlawful distribution under 21 U.S.C. § 841(a)(1) without regard to whether, in good faith, he “reasonably believed” or “subjectively intended” that his prescriptions fall within that course of professional practice.

Court of Appeals for the Armed Forces

United States v. Guyton. CJ Ohlson writes for himself and three others, with Sr. J. Cox dissenting in part but concurring in the judgment. This is an R.C.M. 707 and Sixth Amendment speedy trial case, focused on Army trial Rule 1.1 which automatically grants excludable delay between the time the case is docketed with the judiciary and arraignment.

The granted issues in this case present two questions: (1) whether the Government violated Appellant’s right to a speedy trial under either Rule for Courts-Martial (R.C.M.) 707 or the Sixth Amendment of the United States Constitution; and (2) whether the United States Army Court of Criminal Appeals (CCA) erred by affirming a portion of Appellant’s sentence that had not been approved by the convening authority. We hold that there was no speedy trial violation here because the military judge did not abuse his discretion when he ruled that certain days were excludable for speedy trial purposes under R.C.M. 707, and he did not err when he ruled that Appellant could not prevail on his Sixth Amendment claim because Appellant demonstrated no prejudice pursuant to an analysis under Barker v. Wingo, 407 U.S. 514 (1972). However, we further hold that the CCA erred  ​in affirming a sentence of forfeiture of all pay and allowances because the convening authority had not approved that particular portion of Appellant’s sentence.

While finding in favor of Appellant on three Barker factors, the court again stresses that there must be actual prejudice. See Anderson, a post-trial delay case. ​United States  v. Anderson.

United States  v. Anderson.

​Appellant requests that this Court determine whether his due process right to speedy post-trial review has been denied. After assessing the relevant factors, we conclude that Appellant’s due process rights have not been violated.

A total of 497 days elapsed between the end of trial and the convening authority approving the sentence. Both parties agree that sixteen of those days are attributable to defense counsel’s review of the record, leaving 481 days of Government delay. The trial transcript was 635 pages long and included nineteen prosecution exhibits, eight defense exhibits, and thirty three appellate exhibits. 

Some comments received.

• Also note the extraordinary burden on the 4th Moreno factor: there must be adverse impact on public esteem for the entire MJ system. If so, will anyone ever meet that standard. "Though the post-trial delay was lengthy enough to trigger a review under Moreno, it resulted in no prejudice to Appellant, nor did it threaten the public’s trust in the fairness and integrity of the military justice system. Therefore, no due process violation occurred."
• Must there be actual prejudice? See Maggs, J., concurring.
• For those concerned about the overall post-trial delays, the CAAF observes,

The length of the delay in this case is not as extensive as many this Court has reviewed. See United States v. Bush, 68 M.J. 96, 104 (C.A.A.F. 2009) (challenging a seven-year posttrial delay); United States v. Toohey, 63 M.J. 353, 357 (C.A.A.F. 2006) (challenging a delay in which the convening authority took action 644 days after trial and 2,240 days passed between the end of the court-martial and the lower court decision); Moreno, 63 M.J. at 133 (challenging a delay in which 1,688 days elapsed between the end of trial and the completion of appeal, 490 of which covered the time between sentencing and the convening authority’s action).

United States v. Simmons. (Note this is a 2016 MCM case.)

 A general court-martial consisting of officer members convicted Appellant of four specifications of sexual assault of a child, one specification of extortion, and one specification of producing child pornography. Appellant was sentenced to a dishonorable discharge, confinement for twelve years, forfeiture of all pay and allowances, and reduction to E-1.

The granted issue,

​Whether the military judge erred in allowing the Government to make a major change to a specification, over defense objection—almost tripling the charged time frame—after the complaining witness’s testimony did not support the offense as originally charged and the prosecution had rested its case.

The court decided that,

​We answer the granted issue in the affirmative. Specifically, we hold that under the totality of the circumstances presented here, enlarging the charged time frame of one of the offenses by 279 days—after arraignment and over defense objection—was “likely to mislead the accused as to the offenses charged.” Rules for Courts-Martial (R.C.M.) 603(a). 1 This amendment to the charge sheet thus constituted a “[m]ajor change” which the Government was not authorized to make without withdrawing, amending, and preferring the specification anew. R.C.M. 603(a), (d). Because the Government failed to take these required steps, the decision of the CCA is reversed as to the Specification of Charge II and as to the sentence. 

Judges Maggs and Hardy dissented.

No. 21-0325/AR. U.S. v. Leeroy M. Sigrah. CCA 20190556. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:
 
WHETHER THE MILITARY JUDGE'S DENIAL OF APPELLANT'S R.C.M. 914 MOTIONS MATERIALLY PREJUDICED APPELLANT'S SUBSTANTIAL RIGHTS.

ACCA opinion here. Note the decision is dated in June 2021. The issues at ACCA were the motion to strike testimony and Brady violations. The court agreed that the MJ erred in the Mil. R. Evid. 914 ruling, but it was not prejudicial but found the Brady issue waived.

​No. 22-0091/AF. U.S. v. Javon C. Richard. CCA 39918. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:
 
WHETHER THE EVIDENCE OF PREJUDICE TO GOOD ORDER AND DISCIPLINE FOR THE ARTICLE 134, UCMJ, OFFENSES WAS LEGALLY SUFFICIENT.

Air Force Court of Criminal Appeals

United States v. Davis. A GP case in which Appellant was convicted of using marijuana, cocaine, and LSD, and also wrongfully obtaining and distributing the names and social security numbers of other airmen. He was sentenced to 210 days and a BCD. This is a second visit after remand for post-trial issues. The issue then left to decide was unreasonable post-trial delay. Finding no prejudice the findings and sentence were affirmed. The original opinion is here.

Army Court of Criminal Appeals

United States v. Cruz. MJA conviction for sexual assault, for which he was sentenced to 22 months, and a DD. The sole issue on appeal was factual and legal sufficiency. The majority finds factual sufficiency in this "close case." Judge Walker, dissenting, finds a insufficiency because it was implausible that digital penetration could not have happened without consent and "defies logic" and because of a mistake as to consent.

The alleged acts took place while the accused and accuser sat next to each other on an airplane.

United States v. Hamilton. __ M.J. ___ (A. Ct. Crim. App. 2022). An enlisted panel convicted him of rape and aggravated sexual contact. The MJ sentenced him to eight years, RiR, and a DD. Fn. 3 has an interesting discussion of waiver of the F2SO when there is a guilty plea or as here, a contested trial. ACCA applies a plain error standard of review.

"[R]espect for Congress's prerogatives as policymaker means carefully  attending to the words it chose rather than replacing them with others of our own."  Murphy v. Smith, 138 S. Ct. 784, 788 (2018). In short, words have meaning. In this case, the government chose to charge appellant with an aggravated sexual contact in violation of Article 120, Uniform Code of Military Justice, 10 U.S.C. $ 920 [UCMJ], for touching "the chest of [the victim] with [appellant's] mouth with an intent to arouse, or gratify the sexual desire of any person by using unlawful force." ( emphasis added). Appellant argues this charge fails to state an offense because  "chest" is not one of the enumerated body parts listed in the definition of "sexual  contact." We agree and provide relief in our decretal paragraph.

Footnote 8 is a guide to practitioners.

Practitioners can find the current version of the UCMJ, along with any relevant  supplements at the Office of the Law Revision Counsel's [OLRC] website: http://uscode.house.gov. After typing in title "10 and the relevant section (in this case "920) and hitting "enter", another window will appear with the text of the  UCMJ article. On this page there is an additional drop down menu at the top that contains the current version of the United States Code, as well as previous editions  and supplements. Practitioners can also find the effective dates of any amendments here to ensure they are using the correct language when drafting charges.

Worth the Read

MAJ David A. Thompson, Truth or Dare? An SVC's Dilemma in Handling a Client's Potential Falsehoods. ARMY LAWYER, No. 4, 2019 at 69.