Week in Review

ACCA

United States v. Meneses.

​A military judge sitting as a general court-martial convicted appellant, pursuant to his plea, of one specification of indecent recording, in violation of Article 120c, Uniform Code of Military Justice, 10 U.S.C. § 920c [UCMJ]. The military judge sentenced appellant to a bad-conduct discharge, confinement for seven months, and reduction to the grade of E-1. Consistent with the pretrial agreement, the convening authority approved the portion of the sentence extending to a bad-conduct discharge, confinement for 180 days, and reduction to the grade of E-1.

Appellant argues the military judge abused her discretion, by accepting his guilty plea because there was an insufficient factual basis for concluding that appellant indecently photographed the victim.

• The government agreed as did the  court. [Note, there are cases where the government concedes and issue, the court disagrees, and finds against the appellant.]
  
• Because Appellant did not challenge acceptance of the plea to making an indecent recording of the victim, the court amends the finding of guilty by deleting the words "photograph and" from the specification. In its pleading, the government agrees the record contains an insufficient factual basis concerning appellant photographing the victim and concurs with appellant's proposed remedy.
• The modified findings and the sentence are affirmed.

AFCCA

United States v. Laguitan.

A military judge sitting alone convicted Appellant, of one specification of sexual assault of JB1 by digitally penetrating her vulva and causing bodily harm. Appellant was sentenced to a dishonorable discharge, confinement for eight months, forfeiture of all pay and allowances, and reduction to the grade of E-1. The convening authority approved the sentence as adjudged. Appellant raises three issues on appeal: 

(1) whether the evidence is legally and factually sufficient to support the conviction;

(2) whether defense counsel’s failure to call an expert witness in this case and fully cross-examine a key witness denied Appellant the effective assistance of counsel; and

(3) whether the court-martial order (CMO) and report of result of trial (RRT) contain errors warranting correction. We also considered whether Appellant is entitled to relief due to presumptively unreasonable post-trial delay.

​With respect to issue (3), we agree with Appellant that the CMO warrants correction because the CMO has the incorrect date the sentence was adjudged, and we order a new CMO.3 We find no prejudicial error and affirm the findings and sentence.

QUOTE OF THE WEEK

"The rules of evidence vary from state to state and federally. And the application of hearsay exceptions is famously known to be one of the more dizzying and elusive legal concepts–even to seasoned practitioners."

Colin Kalmbacher, In Win for Prosecution, Derek Chauvin’s Trial Judge Rules Statements Made by George Floyd’s Friend are Inadmissible Hearsay. Law & Crime, 12 April 2021.

PENDING (POSSIBLY) APPELLATE CASES

An O-5, naval aviator attached to the command overseeing manpower readiness for the Navy faces court-martial on charges he sexually assaulted a woman in 2019. He was in or near Bangalore, India, at the time of the alleged assault, according to a charge sheet obtained by Military.com.
 
 WORTH THE READ

Lesley Wexler, Military #MeToo Justice: Is a Change Going to Come? Verdict, Justia, 13 April 2021. She discusses the pending Military Justice Improvement Act.

Over the past 15 years, Congress enacted 249 legislative proposals concerning sexual assault in the military. Some deal with climate and prevention, while others focus on the military justice system. For instance, Congress enacted procedural reforms to eliminate the “lengthy pretrial depositions of accusers that were intended to pick apart their credibility,” and changes standards for appeal courts seeking to overturn sexual assault convictions- both of which brought the military justice system closer to mirroring the civilian one. Yet none of these reforms seemed to have much bottom-line impact on the problem.

Norman Hobbie, Fourth Amendment Consent Searches and the Duty of Further Inquiry. 54 CREIGHTON L. REV. 227 (2021).

Consent searches, presently justified on arguably weak grounds, account for nearly ninety percent of all warrantless searches. Though scholars debate whether the Fourth Amendment bars consent searches, the Supreme Court of the United States has continued to reaffirm the constitutionality of such searches. Under current doctrine, third parties, often without actual authority, are able to consent to a search of another’s premises. [Note, this generally is the Randolph issue.] Yet, if doubt endures over whether an individual possesses adequate authority to offer consent, officers may have to engage in further inquiry to resolve whether sufficient authority exists.

With little guidance offered as to what this further inquiry entails, there is currently a split among the circuits as to the dimensions of this directive. On one end of the split, some circuits require that if ambiguity exists over authority, a duty of further inquiry is triggered. The other circuits, by contrast, have either expressly rejected the application of the duty, or have yet to take a position on the issue.
​
This Article’s first contribution is to adopt the United States Court of Appeals for the Seventh Circuit’s view of the duty of further inquiry. Thus, when officers are faced with other equally plausible possibilities for a consenting party’s authority, officers have a duty of further inquiry. This Article’s second contribution is to clarify and augment the Seventh Circuit’s approach. This Article modifies and defines the ambiguity threshold triggering the duty of further inquiry and delineates the substance of that inquiry

Phil Cave