Court of Appeals for the Armed ForcesAppeal — Summary Disposition in the third case argued at CAAF this term. No. 21-0059/MC. U.S. v. Bradley M. Metz. CCA 201900089. On further consideration of the granted issue, 81 M.J. 148 (C.A.A.F. 2021), the briefs of the parties, and oral argument, we answer the issue in the affirmative. Accordingly, it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside, and the record of trial is returned to the Judge Advocate General of the Navy for remand to that court to conduct the three-pronged approach of Brown v. Illinois, 422 U.S. 590 (1975) in examining the effects of an unlawful apprehension upon a subsequent search. See United States v. Conklin, 63 M.J. 333, 338 (C.A.A.F. 2006); United States v. Khamsouk, 57 M.J. 282, 290-91 (C.A.A.F. 2002). On remand, the Court of Criminal Appeals may order affidavits or a factfinding hearing, if necessary. See United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2018), shall apply. CCA opinion. Air Force Court of Criminal AppealsUnited States v. Barnaby. In this GP case, "a military judge on 7 January 2020: Dishonorable discharge, confinement for 118 months, and reduction to E-1." Slip op. at 2. There was one specification of sexual abuse of a child who had not obtained the age of 12 years, by touching her genitalia through her clothing on divers occasions, and one specification of sexual abuse of a child who had not attained the age of 16 years, by touching her anus with his penis; another specification of sexual abuse by anal penetration was withdrawn and dismissed with prejudice after arraignment. A panel consisting of officer and enlisted members sentenced Appellant to a dishonorable discharge, confinement for 14 years, forfeiture of all pay and allowances, and reduction to the grade of E-1. The military judge credited Appellant with 13 days against his sentence for time he spent in pretrial confinement. Consistent with the terms of the PTA, the convening authority disapproved the adjudged confinement that exceeded 118 months, disapproved adjudged forfeitures, approved deferral of automatic forfeitures from 14 days from the date the sentence was adjudged until the date the entry of judgment (EoJ). Appellant raises six issues on appeal.
Coast Guard Court of Criminal AppealsIn re Vargas. Order denying petition for stay of proceedings. Navy-Marine Corps Court of Criminal AppealsUnited States v. Jeter, __ M.J. ___ (N-M Ct. Crim. App. 2021). Officer members convicted Appellant of sexual, DUI, sexual assault of two women, extortion, burglary, 133, communicating a threat, and unlawful entry. He was sentenced to 20 years and a dismissal. This is the second time at NMCCA for Appellant. The court had affirmed before but CAAF summarily reversed citing to United States v. Bess. In Bess, the issue before CAAF was whether the convening authority, who was the same convening authority in Appellant’s case, violated due process by stacking the members’ panel with white members when the accused was black. Judge Ryan, joined by Chief Judge Stucky, concluded that the protections found in Batson v. Kentucky do not extend to the selection of members by the convening authority. Similar to this Court’s now-vacated opinion in Jeter I, these judges noted that there was no precedent to extend the Batson protections to a convening authority’s member selection, which is already covered by the requirements of Article 25, UCMJ. Upon re-docketing with this Court, additional briefing and oral argument were provided by the parties on the issue of Batson’s applicability to member selection by the convening authority. We find that the convening authority did not violate Appellant’s equal protection or due process rights, and affirm on this AOE. We further adopt our holdings on AOEs II-XI, consistent with this Court’s prior published opinion in Jeter I and once again conclude the findings and sentence are correct in law and fact and that no error materially prejudiced Appellant’s substantial rights. Pending Appellate CasesUnited States v. Army Private. Appellant provides drugs, sexually assaults Soldier, provided drugs to another Soldier while deployed and sexually assaulted that Soldier. Result: Reduced to E1, dishonorable discharge, 6 years of confinement. United States v. Army Staff Sergeant. Appellant, while serving as a supply NCO, stole and unlawfully sold over $100,000 worth of Army property to another NCO for $500. Result: Convicted at a Court martial, confined for 45 days, issued a bad conduct discharge. United States v. Army Corporal. Appellant sexually assaulted Soldier while deployed, a corporal after broking into the room of a Soldier while she slept. Result: Convicted at a Court martial, confined for 66 months, forfeited all pay and allowances, issued a dishonorable discharge. Possible appellate casesUnited States v. Sailor X. (Update). "Navy Probe Finds Major [crew] Failures in Fire that Destroyed USS Bonhomme Richard." These situations have a tendency to produce other courts-martial--we shall see. Worth the readOtt & Kamarck, Military Justice Disposition Delimitation Legislation in the 117th Congress. Congressional Research Service, October 18, 2021. Prof. Beth Van Schaack, a NIMJ Distinguished Fellow, has been nominated to be Ambassador at Large for Global Criminal Justice, Department of State. Senior Judge Margaret A. Ryan of the U.S. Court of Appeals for the Armed Forces was interviewed on October 7, 2021 before the University of Virginia School of Law chapter of the Federalist Society. The transcript can be found here. Marne Justice also reports a Sergeant lied to his superiors by falsely claiming he was vaccinated against COVID-19 and also forged a vaccination card--RIR and OTH. H.R. 4035: Real Justice for Veterans Act of 2021. Cheers, Phil CaveComments are closed.
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