Week in Review

Air Force Court of Criminal Appeals

United States v. Daniel. GP, MJA to attempted possession of MDMA with intent to distribute, divers use of MDMA, divers use of Adderall, a use of LSD; a use of "mushrooms." Sentenced to two-months, a BCD, and stuff (including a reprimand). Appellant's sentence is not "inappropriately severe."
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United States v. Trusty. GP, MJA to possessing CP. Sentenced to 3.5 years, DD, and RIR. Raises two issues: impropert TC argument on uncharged misconduct and "unnecessarily displaying contraband to the military judge," and post-trial error. Remanded for corrective action by a CA.

Navy-Marine Corps Court of Criminal Appeals

United States v. Welsh. GP MJA "for wrongfully distributing video recordings of himself having sexual intercourse with a 16-year-old and then requesting that the videos be deleted in order to impede the investigation into the distribution." Sentenced to 18-months, DD, and TF. Sole issue was sentence appropriateness; which the court found had not merit.
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In re Trujillo, was  convicted of UA and twice using cocaine--in 1990. Sentenced to 130 days, BCD, and stuff. Direct review was completed in 1991; but in 2002 he petitioned CAAF which denied the petition. In 2010 he filed a coram nobis petition in which he claimed IAC--NMCCA denied the petition. In June 2020 he again filed a coram nobis petition further alleging IAC for "failing to investigate his mental illness and use it as a defense[.]" The court acknowledges a potential lack of jurisdiction but proceeds anyway.  The petition fails,

With respect to his claims of ineffective assistance of counsel, he continues to fail to give a valid reason for not seeking relief earlier, and also seeks to have us reevaluate legal issues that we previously considered in our denial of his petition in 2010. With respect to his claim that the convening authority did not approve his bad-conduct discharge, Petitioner fails to give a valid reason why he did not seek relief earlier on these grounds.

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​In re Durfee. In 1998, enlisted members convicted him of forcible sodoly, assault, an indecent act and receipt of obscene materials. He was sentenced to a BCD, RIR, and forfeitures. In this pro se petition he 

claims he was denied the effective assistance of counsel because his trial defense counsel [TDC] failed to raise the possibility of consensual sodomy as a lesser-included offense to forcible sodomy during his trial. Petitioner also claims he was denied effective assistance of counsel on appeal because his appellate defense counsel were informed of this error, but failed to raise it before this Court. Petitioner contends that had this lesser included offense been raised, he would have been acquitted of the charge of forcible sodomy, and only convicted of consensual sodomy—which was then a crime— and thus not required to register as a sex offender in his home state. Petitioner asks this Court to vacate his conviction for forcible sodomy.

The case was reviewed in 2005 and some corrective actions taken to his benefit but disagreed that the forcible sodomy was factually insufficient. The CAAF affirmed and also declined relief on a Moreno issue. In 2007, the Supreme Court denied a petition for certiorari.

Now he claims IAC for failing to request an instruction that consensual sodomy was an LIO of the forcible. He also raised questions based on an affidavit from his DC about statements made by the members to him after trial. He also raises IAC of appellate counsel. The court again assumes without deciding they have coram jurisdiction.

Because appellant's claims against both trial and appellate counsel have not merit, coram relief is denied.
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United States v. Johnson.  GP at SPCM for wilful disobedience of officer and bringing in and harboring aliens. He was sentenced to 180 days, a BCD, and RIR. Appellant raised only a post-trial processing error that the court found had no merit--that he was not served personally the record of trial.

While not raised by Appellant (but by the government) the court looked at the error in serving TDC rather than appellant personally as requested. The court notes that appellant waived submission of clemency matters on the date of sentencing. There is no material prejudice because the appellant did not show any prejudice.
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United States v. Norton.  An enlisted panel convicted him of sexual assault. He was sentenced to five-years, a DD, and RIR. He raised four errors.

• Failure to instruct on a requested mistake of fact as to consent. A defense required to be instructed on. R.C.M. 916.
• Factual and legal sufficiency.
• Inappropriately severe sentence.
• Post-trial processing error.

There was post-trial processing error which the court orders corrected--otherwise, everything is good. 

Maybe appellate case?

Geoff Ziezulewicz, Charges preferred against seaman apprentice accused of starting USS Bonhomme Richard fire. Navy Times, 29 July 2021.