Week in Review

Air Force Court of Criminal Appeals

United States v. Leach. Appellant pled guilty to two A&B. He was sentenced to 10 months, RiR, and a BCD. The case is back after correction of post-trial errors. The sole issue was whether the MJ erred in admitting various recorded phone calls made by Appellant while confined in the Charleston Brig. The recordings tended to rebut his in-court statements of remorse. Finding the recordings properly authenticated, relevant, and not objectionable hearsay the findings and sentence are approved.

United States v. Dodson. Appellant pled guilty to dereliction, disobedience of an order, use of cocaine, use of MDMA, on incident of domestic violence, and extramarital conduct. He was sentenced to 10 months, RiR. There were four issues and one specified.

• Was Appellant’s right to a meaningful appeal denied when administratively separating Appellant after he exercised his right to direct appeal but before this court completed appellate review.
• Did the USAF cede personal jurisdiction over Appellant by administratively separating him prior to resolution of his appeal.
• Was relief required for the Government’s failure to include his enlisted performance reports, admitted into evidence as Prosecution Exhibit 3, in the record of trial.
• Was it prejudicial error for a government sentencing witness to testify about matters outside the scope of proper aggravation evidence.
• Appellant is entitled to appropriate relief for the convening authority’s failure to take action on the sentence as required by law. The Brubaker-Escobar issue.

We are not persuaded by Appellant’s contentions that his administrative discharge from the United States Air Force violated his due process rights to a “meaningful” direct appeal, or that this court no longer retains jurisdiction over his conviction and sentence because he was administratively separated prior to our completion of review of his direct appeal.

Finding no prejudice, the court affirms the findings and sentence.

Army Court of Criminal Appeals

United States v. Garcia. The court holds that (on the facts) aggravated assault with a means likely is not an LIO of maiming.

A military judge convicted appellant  of involuntary manslaughter of a child under the age of sixteen, assault with a means or force likely to produce death or grievous bodily harm on a child under the age of sixteen, and assault consummated by a battery. He was sentenced to a bad conduct discharge, confinement for six years, and reduction to the grade of E-1. 

The elements test applies when deciding if there is an LIO, citing Schmuck v. United States, 489 U.S. 705, 716 (1989) (which requires an elements-test for LIOs for certainty and predictability under Fed. R. Crim. Pro. 31(c)); United States v. Hanks, 74 M.J. 556 (A. Ct. Crim. App. 2014); United States v. Riggins, 75 M.J. 78 (C.A.A.F. 2016).

The court chooses the second "test" from United States v. Gonzalez, 78 M.J. 480 (C.A.A.F. 2019) which looks to whether the "charged offense is drafted in such a manner that it alleges facts that necessarily satisfy all the elements of each offense." Because the GBH charge requires an additional element of proof it is not an LIO and the Appellant was not put on notice.

However, the court finds no prejudice under the plain error standard. The court then went on to find that an A&B was a proper LIO to be affirmed. The sentence was affirmed.

Coast Guard Court of Criminal Appeals

February 9, 2022, will be the oral argument in United States v. Tucker. There seems to be some interesting history to the case.

Navy-Marine Corps Court of Criminal Appeals

(Update: the court has just published an order withdrawing the opinion.)
​United States v. Bocage. Appellant pled guilty to possessing, using, distributing, and conspiring to distribute MDMA . He was sentenced to two years and a BCD. On appeal there were two issues.

[The] punitive discharge was inappropriately severe, particularly when none of the other servicemembers investigated for illegal drug activity during the same timeframe received a punitive discharge despite engaging in similar or more egregious misconduct.

His trial defense counsel was ineffective by failing to pursue a “substantial assistance” recommendation from the trial counsel given Appellant’s cooperation with the government in the investigation and prosecution of other servicemembers and his known objective to avoid a punitive discharge.

We [do] find Appellant’s plea improvident to wrongful possession of a controlled substance with intent to distribute, set aside the finding of guilty for that offense, and affirm its lesser-included offense of wrongful possession.

Finding no other prejudicial error, we affirm the remaining findings and, upon reassessment, affirm the sentence.

Worth the Read

Kirsten K. Davis, [Sic] It, Fix It, or Ignore It? The Rhetorical Implications of Spotlighting Another Writer's Error. Appellate Advocacy Blog, Feb.3, 2022.

MAJ Matthew L. Forst, Restoring Due Process and Strengthening Prosecutions: Making the Article 32, UCMJ, Hearing Binding. 229 MIL. L. REV. 481 (2022).

Cheers, Phil Cave