Week in Review

Court of Appeals for the Armed Forces

COVID rule for civilians wishing to enter the CAAF building. Note it does not address military personnel yet to be vaccinated or who have an exemption.

Air Force Court of Criminal Appeals

United States v. Murillo. In this GP case the MJ sentenced Appellant to 106 days, a BCD, and a reprimand for divers use of cocaine. Appellant raised three issues.

• The MJ abused his discretion by allowing trial counsel to characterize JG as a victim during the Government’s sentencing argument;
• the MJ improperly allowed trial counsel to admit Appellant’s responses to nonjudicial punishment (NJP) contrary to Department of the Air Force Instruction (AFI) 51-202, Nonjudicial Punishment (6 Mar. 2019); and
• the EoJ should be corrected to reflect that Specification 2 of the Charge was withdrawn and dismissed with prejudice in accordance with Appellant’s plea agreement.

The court did not decide if TC's argument was improper, rather, they decided that,

Although trial defense counsel’s objection was overruled, the military judge demonstrated he was not committed to trial counsel’s legal understanding of the evidence. We are confident the military judge put “victim” in the appropriate context and that Appellant was sentenced on the basis of the evidence alone and not trial counsel’s interpretation of “victim” under the rules applicable to sentencing. 

The court did not find error regarding the NJP record because,

• It was waived.
• And in the court's view the defense incorporated part of the response in its own sentencing argument. The court does not address whether the defense incorporated the response into argument was a direct result of its admission and a means to minimize the effect of the letter.
• The court ordered correction of the EoJ.
• And affirmed the findings and sentence.

United States v. Dodd. In this GP case the MJ sentenced Appellant to 12 months, a BCD, and a reprimand, because the Appellant had damaged personal property, and five DV A&B. The case was submitted without assignment of error but the court identified a post-trial error for which the court ordered correction of the error.

United States v. Motus. Having returned from correction of post-trial errors, the court reviewed five issues.

• Legal and factual sufficiency for sexual assault and abusive sexual contact against NW;
  
• legal and factual sufficiency for abusive sexual contact against OK;
  
• IAC. ( (1) declined to give an opening statement; (2) failed to interview OK before trial; (3) failed to adequately cross-examine NW and OK; and (4) failed to question or challenge the military judge or to properly advise Appellant on his forum choice. He further asserts the cumulative impact of their deficient performance affected the outcome of the trial. 
  
• did Appellant made a knowing and voluntary forum choice; and
  
• was there IAC for not requesting relief during clemency. 
  

Finding no error the court affirmed the findings and sentence.

Army Court of Criminal Appeals

United States v. Snyder. A military judge found Appellant guilty of attempted murder and aggravated assault on a minor. He was sentenced to serve 36-months and a BCD. There were three AOEs.

• Did the Specification of Charge II state an offense;
• did the military judge acquit of Specification of Charge II; and,
• did the military judge abused his discretion by allowing the government to introduce MRE 404(b) evidence.

Task & Purpose has a post about United States v McPherson, decided by ACCA. See Haley Britzky, Congress inadvertently helped a soldier convicted of child molestation get 13 years knocked off his sentence. T&P September 22, 2021. The CAAF affirmed the ACCA decision on August 3, 2021.

Coast Guard Court of Criminal Appeals

United States v. Goodell. Appellant's AOEs make interesting reading, as does CGCCA's opinion. A petition for review at CAAF was withdrawn in September 2019.

Navy-Marine Corps Court of Criminal Appeals

United States v. Jacks. In this ghost opinion it appears that Jack was found guilty of something and sentenced to something which likely has been affirmed. The CL investigators have been unable to verify that Jack was convicted of stealing tarts from the commanders kitchen.

Worth the read

A DoD press release lays out a roadmap for dealing with military sexual assaults. See Terri Moon Cronk, Hicks Outlines Strategy to Thwart Sexual Assault in Military. DoD News, September 22, 2021. [Link to SecDef memorandum.] The roadmap lays out

foundational investments to support sexual assault accountability, prevention programs, healthy command climates and quality victim care. 
. . . 
​"[Tier 1] consists of the most important elements in preventing sexual assault and sexual harassment and holding offenders accountable," Hicks said. "The preponderance of initiatives and resources are focused in our first tier. For instance, it contains three of our highest-priority recommendations, including the establishment of the offices of special-victim prosecutors, the creation of a full-time and specialized prevention workforce, and the implementation of full-time sexual assault response coordinators and sexual assault prevention and response victim advocate positions."

Cheers, Phil Cave