Week in review

Fed. Dist. Ct., S.D. California

United States v. Booker, No. 3:18-cr-02611-GPC, 2021 U.S. Dist. LEXIS 177641, 2021 WL 4244895 (S.D. Ca. Sept. 17, 2021).

Defendant moved to suppress the passcode to his iPhone 6 Plus, which was recorded by a Naval Criminal Investigative Service ("NCIS") agent during an interview, as well as any results of the subsequent searches of the iPhone 6 Plus using that passcode. Defendant alleges that the passcode was obtained in violation of his Fourth, Fifth, and Sixth Amendment rights as well as  Miranda..

Based on the pleadings, evidence submitted at the evidentiary hearing and arguments of counsel, the Court  GRANTS the motion. 
(Cleaned up.)

The court concludes that,

• Obtaining the passcode was "an unlawful warrantless search under the Fourth Amendment."
• The government failed to establish inevitable discovery.
• The passcode was obtained in violation of the Fifth Amendment.
• The passcode was not obtained in violation of the Sixth Amendment right to counsel.
• The passcode was obtained in violation of Miranda.

Court of Appeals for the Armed Forces

We just passed the three months of no nomination to replace Judge Stucky. 

Air Force Court of Criminal Appeals

United States v. Hepfl. In this GP case Appellant was convicted of using and distributing drugs quite a few times and was sentenced to 11 months, a BCD, TF, RIR, and a reprimand. (You may have noticed an increase in AF courts for drug related offenses.) This being the second appearance after post-trial error corrections, the court addressed Appellant's Grosty challenging the sentence. One suspects the following matters didn't help.

Appellant assisted another Airman in an attempt at avoiding urinalysis detection. After consuming cocaine with Appellant in a group of four Airmen, Appellant’s then-boyfriend was hospitalized for drug-related seizures; Appellant’s cocaine and MDMA use increased in frequency after this hospitalization. On multiple occasions after using illegal drugs, Appellant reported illness and was placed on quarters.

But Appellant tried to balance that with some rather compelling personal history.

​Appellant’s diet during pretrial confinement caused weight gain while in the civilian facility and subsequent weight loss while in the military facility.7 Appellant experienced significant pre-service trauma as a minor and as a young adult. In addition to her personal trauma, Appellant’s mother was murdered when Appellant was 19 years old, and the crime attracted media attention. After Appellant’s mother’s murder, a white supremacist group published a shockingly offensive commentary about the murder that also identified Appellant’s social media profile. 

But says the court,

​In addition to matters in extenuation and mitigation, evidence at trial showed that Appellant’s extensive illegal drug use, introduction of cocaine onto Ellsworth AFB, and distribution of cocaine to other Airmen had a significant negative impact on other Airmen and on good order and discipline. Moreover, Appellant’s recreational drug use continued even after she was aware she was under investigation, she had witnessed her then-boyfriend suffer an overdose induced seizure, and she had tested positive in a urinalysis. 

The opinion says nothing about counseling or treatment for her trauma. One wonders whether her pre-service trauma's induced her to self-medicate--at least as to the personal use.

United States v. Perez. Appellant pled guilty to possession and use of cocaine, use of methamphetamine, and an orders violation. He was sentenced to 150 days, a BCD, and Forf of $1200.00 x five.

​This case was Appellant’s second court-martial. On 1 August 2019, Appellant pleaded guilty at a special court-martial for, inter alia, wrongful use, possession, and introduction onto a military installation of methamphetamine. Appellant was sentenced to a total of 75 days’ confinement, forfeiture of $1,120.00 pay per month for three months, and reduction to E-1; Appellant was credited with 89 days of pretrial confinement credit. Appellant did not receive a punitive discharge at his first court-martial.

Appellant was caught again on a Aug. 19, 2019, random. The sole issue was a Grosty as to the sentence.

Appellant asked that he not be sentenced to a punitive discharge, informing the military judge that he had been sexually assaulted by two different individuals at two different installations prior to his arrival at Beale AFB. According to Appellant, these sexual assaults caused him to “disassociate, lose track of time, and place,” and ultimately led to a diagnosis  of major depressive disorder and recurring chronic post-traumatic stress disorder (PTSD).5 In his clemency matters, Appellant told the convening authority he “turned to illicit drug use to provide a momentary reprieve from the hellacious life [he] endured every day.” Appellant also stated that “these substances took over to establish a crippling addiction” that he was still trying to fight. On appeal, Appellant asserts the adjudged punitive discharge is “unnecessary and overly harsh,” as Appellant was a survivor of military sexual trauma and was diagnosed with significant mental illness, including major depressive disorder and PTSD.

The court acknowledges that Appellant presents a sympathetic explanation of his mental health issues as evidence in mitigation and extenuation.

United States v. Ramirez will be argued on October 12,2021. The issues are not identified. There appear to be two Ramirez's on the docket, one is a 62 appeal, the other is one returned to the court for further action (perhaps this case).

Army Court of Criminal Appeals

United States v. Tosie. Appellant pled guilty to A&B, two aggravated assaults, a simple assault, and communicating a threat. He was sentenced to two years, a DD, and RIR.

The issue on appeal was the providence of one of the aggravated assault specifications. The court agreed. Footnote 2 covers a page.

On reassessment the remaining findings were affirmed as was the sentence.

United States v. Cardona. Appellant pled guilty to sexual assault and was sentenced to six years, a DD, TF, and RIR.

After a night of drinking in Mons, Belgium, appellant sexually assaulted a minimally-conscious x 
year-old woman at a nursing home who was  wearing a diaper and incapable of motor function. Appellant broke into the nursing home by breaking the lock on a rear door. Once inside, appellant used a service elevator to get to the second floor, and then walked to the victim's room. When appellant entered the victim's room, he closed the door to the ha1\way and opened  the bathroom door further obscuring vision of the room from the outside. A nurse noticed the closed door and was alarmed because the door was required to remain open. Opening the room door and closing the bathroom door, the nurse observed
appellant, naked from the waist down, committing the crime. The nurse screamed,  "[w]hat are you doing? Appellant continued penetrating the victim's vulva with his penis, and the nurse ran from the room to contact local law enforcement. 
 
Shortly thereafter appellant was arrested a few blocks from the nursing home  wearing a white-tank top and white socks. Appellant left his pants, containing his military identification card, in the victim's room. Appellant now claims his defense counsel were ineffective for failing to properly advise him of the defenses of involuntary intoxication and automatism. As explained below, we find appellant's defense counsel were not ineffective.

United States v. Nalezynski. An enlisted panel convicted Appellant of attempted sexual abuse of a child, and use of indecent language, for which he was sentenced to five years, a DD, and RIR. Appellant now claims,

• Error as to instructions on lewd acts.
• Denial of expert asssitance.
• IAC on sentencing. This case is like United States v. Scott and United States v. Demerse, 37 M.J. 488 (C.M.A. 1993), although with a different result.

ACCA will hear oral argument in United States v. McGee on Oct. 5, 2021.

• Whether the panel properly announced its findings at the conclusion of the guilt phase of Appellant's court-martial?

Navy-Marine Corps Court of Criminal Appeals

United States v. Jacks. Appellant pled guilty to two larcenies, adultery, fraternization, conspiracy to obstruct justice, conspiracy to steal, and UA terminated by apprehension. For which he was sentenced to 16 months, a BCD, and RIR. There were two issues.

• IAC for failing to present expert testimony regarding Appellant’s Traumatic Brain Injury [TBI], Post-traumatic Stress Disorder [PTSD], and other mental and behavioral issues; and
• the sentence is highly disparate and inappropriately severe.

​That Appellant continued to serve his country even after losing a limb in combat and suffered a host of other mental and physical challenges and injuries as a result of his service does not excuse his behavior or actions. The law requires that the individual and lifelong sacrifices Appellant made for his country must be taken into account for sentencing, and the record shows that they were.

Findings and sentence affirmed.

United States v. Wagner. An "enlisted" panel convicted him of sexual assault by bodily harm and sentenced him to 3 months HLWC, a DD, and RIR. The sole issue was factual sufficiency. There being no prejudicial error the findings and sentence were affirmed.

United States v. Jeter. Appellant was sentenced to 25 months, a BCD, and RIR. He had pled guilty to destruction of military property, aggravated assault, and two simple assaults. There was an error in the announcement of sentence, which the court cleaned up.

United States v. Fuster. This GP case sees Appellant sentenced to four months, a BCD, and RIR, having violated a lawful general order, A&B, conspiracy, and unlawful entry. While a sentence appropriateness case, the arguments centers on sentence disparity among co-actors or co-conspiratore. 

NMCCA held oral argument in United States v. Dominguez, Sept. 29, 2021.

I. Did the military judge err in admitting Prosecution Exhibits 10 and 11 into evidence under the residual hearsay exception?

II. Did the military judge err in denying the Defense’s Military Rule of Evidence 412 motion?

III. Were Appellant’s trial defense counsel ineffective for:

• Failing to be prepared to rebut Prosecution Exhibits 10-11;
  
• Failing to present expert testimony regarding Ms. December’s suggestibility and the impact of the influence Ms. Bravo and Ms. Kilo exerted on Ms. December’s reporting;
  
• Failing to present evidence of Ms. December’s medical history, cultural norms, and gender bias in Appellant’s “intimate care” of Ms. December, which would have established a legitimate non-sexual purpose for touching;
  
• Failing to adequately prepare Appellant to testify; and
  
• Failing to timely move to admit evidence under Military Rule of Evidence 412?

Possible appellate cases

United States v. Refusenik. Task & Purpose reports that LtCol S. Refusnik is now confined in the Brig. 

Worth the read

​R. Michael Cassidy, Character, Credibility and Rape Shield Rules. RESEARCH PAPER 542, Boston College Law School, October 8, 2020.

Dahlia Lithwik & Steve Vladeck, A Better Guide for How to Follow This SCOTUS Term. Slate, Sept. 27, 2021. Question, does CAAF have a "shadow docket?"

Timothy Edgar, Reading Laws in the Digital Age. Lawfare, Sept. 27, 2021. We previously noted Van Buren v. United States.

Nathan Van Buren, a former police sergeant, ran a license-plate search in a law enforcement computer database in exchange for money. Van Buren’s conduct plainly flouted his department’s policy, which authorized him to obtain database information only for law enforcement purposes. We must decide whether Van Buren also violated the Computer Fraud and Abuse Act of 1986 (CFAA), which makes it illegal “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.”

He did not. This provision covers those who obtain information from particular areas in the computer—such as files, folders, or databases—to which their computer access does not extend. It does not cover those who, like Van Buren, have improper motives for obtaining information that is otherwise available to them.

Army to re-investigate past allegations against PSYOP first sergeant now charged with sex crimes. Army Times, Sep. 29, 2021.

The Army command overseeing much of the service’s special operations units is investigating how leaders handled past allegations of sexual misconduct against a senior noncommissioned officer who was recently charged with child sex crimes, Army Times has learned.
Civilian authorities in North Carolina have charged psychological operations Master Sgt. Joshua Glardon with one count of first degree statutory rape and 15 counts of felony second degree sexual exploitation of a child.

Odd stuff

Valerie Cavazos and WITN are reporting that an Air Force officer tried to bribe a civilian EMT into giving him a COVID vaccine card, without first having received the vaccine.

Cheers, Phil Cave