Court of Appeals for the Armed Forces
United States v. Hernandez. Appellant was convicted MJA of wrongful use of cocaine. On appeal, AFCCA found the MJ abused his discretion in not suppressing evidence--"Appellee unsuccessfully argued [at trial] that the results of the urinalysis test should be suppressed because the search authorization used to obtain his urine was based on material misstatements and omissions by the law enforcement officers." CAAF (5-0) reverses AFCCA finding there was good faith--the court presumed without deciding no probable cause was given the magistrate when seekinga search authorization. In so holding, the court passed over a waiver issue with the motion to suppress. It is noteworthy that an E-5 was providing the information to the magistrate to get a warrant not an OSI agent.
CAAF is powering into the end of session with another trailer clean-up.
No. 21-0135/AF. U.S. v. D'Andre M. Johnson. CCA 39676. On further consideration of the granted issues (81 M.J. __ (C.A.A.F. April 14, 2021)), and in view of United States v. Willman, 81 M.J. __ (C.A.A.F. July 21, 2021), we note that in its sentence appropriateness review, the United States Air Force Court of Criminal Appeals erred in failing to consider additional information about Appellant's post-trial confinement conditions even though Appellant had raised the matter in his clemency response to the convening authority. Appellate courts may "consider affidavits and gather additional facts through a DuBay hearing when doing so is necessary for resolving issues raised by materials in the record." United States v. Jessie, 79 M.J. 437, 444 (C.A.A.F. 2020). In United States v. Tyler, 81 M.J. 108 (C.A.A.F. 2021), we held that either party may comment on properly admitted unsworn victim statements. Therefore, the military judge did not plainly err in permitting trial counsel to present argument based on the victim's unsworn statement. Accordingly, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is affirmed as to findings but reversed as to sentence, and the record of trial is returned to the Judge Advocate General of the Air Force for further review under Article 66, Uniform Code of Military Justice, 10 U.S.C. § 866. Thereafter, Article 67, UCMJ, 10 U.S.C. § 867, shall apply.
No. 21-0216/NA. U.S. v. Joseph R. Nelson. CCA 201900239. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:
ARTICLE 31(d), UCMJ REQUIRES SUPPRESSION OF STATEMENTS TAKEN IN VIOLATION OF ARTICLE 31(b). AFTER THE MILITARY JUDGE DETERMINED THAT NCIS AGENTS VIOLATED ARTICLE 31(b) BECAUSE THEIR RIGHTS ADVISEMENT DID NOT PROPERLY ORIENT APPELLANT TO THE NATURE OF THE SUSPECTED MISCONDUCT, DID THE MILITARY JUDGE ERR BY ONLY SUPPRESSING THE STATEMENT AS IT RELATED TO ONE SPECIFIC OFFENSE, BUT THEN ALLOWING THE EVIDENCE TO BE ADMITTED FOR THE REMAINDER OF THE OFFENSES?
Air Force Court of Criminal Appeals
United States v. (not Cab) Calloway. The continuing saga of AF difficulties in post-trial processing continues with the court again remanding to correct the second post-trial action,
The new action, coupled with the absence of a new court-martial order that correctly reflects the results of the courtmartial, is not only erroneous and ultra vires, but confusing and misleading. We find remand for corrective action appropriate.
United States v. (not Spud) Murphy. In this GP case, Appellant was convicted of using marijuana and using marijuana many times and wrongful possession of marijuana; for which he got 30 days, a BCD, RIR-E2, and forf.
United States v. (not Ralph) Nuzzo, III. Appellant was sentenced, by a panel, to 24 months, BCD, and stuff, because he pleaded guilty to "strangling a fellow service member, biting her, and striking her in the face." There was no PTA. The court finds harmless error in the CA failure to take action on the sentence for a pre-2019 case. There are five issues.
United States v. (not Hans Gustav) Steinert. In this GP case, Appellant was sentenced to two-years, a BCD, and stuff, including a reprimand.He pled guilty to five assault and batteries, an orders violation, and the sex offenses were withdrawn. The case is remanded for post-trial error correction and his four other issues deferred until a second visit.
United States v. (not Chalky) White. In this NG MJA case Appellant was convicted of aggravated sexual contact and twice using indecent language. He was sentenced to four-months, a BCD, RIR, and a reprimand. His seven issues will await another visit to AFCCA because an eighth got him a remand for post-trial errors.
Possible appellate cases
United States v. SFC R.RN. Charges of violating orders, reckless endangerment, communicating threats, and obstruction of justice have been referred to court-martial. The Article 32, UCMJ, preliminary hearing ended in May. Arraignment is yet to be scheduled. Interestingly, his attorney told Stars & Stripes that “While I can’t go into the facts contained within those investigations yet, I think it’s fair to say that SFC N. was not even in the country at the time two of the charges are alleged to have occurred[.]”
United States v. MSG C.M.M. A former Fort Bragg command sergeant major who has since been demoted and allegedly forged documents to retire in the midst of an Army investigation now faces new charges. A trial is set to begin Oct. 11 on the new charges of desertion, failure to obey a regulation, extortion, impeding a sexual investigation and revenge porn, according to an Army trial docket and charge sheet.
Worth the read
Barnett-Mayotte, Cal, Beyond Strickland Prejudice: Weaver, Batson, and Procedural Default (June 8, 2021). University of Pennsylvania Law Review, Forthcoming, Vol. 170, Forthcoming , Available at SSRN: https://ssrn.com/abstract=3862860.
Cheers, Phil Cave
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