Week in Review

CGCCA

United States v. Leal.

ACCA 

United States v. Lancaster. Convicted by an 'enlisted panel' appellant was convicted of one specification of stealing military property and sentenced to 30 days, a BDC, a reduction, and a reprimand.

Appellant claims her trial defense counsel violated her right to autonomy in her defense by conceding her guilt at trial.  Additionally, in matters submitted pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), appellant asserts her counsel were ineffective because they failed to comprehend the law relevant to her case.  We disagree on both counts, and affirm the findings and sentence.

Methinks a little more to come on the concession of guilt by DC.

AFCCA

United States v. Stefanek. In this mixed plea MJA case appellant was sentenced to 24 months confinement, a BCD, and other stuff. Appellant pleaded guilty to one specification of absenting himself from his place of duty and one specification of unlawfully carrying a concealed weapon into his place of work; he also was convicted, contrary to his pleas, of one specification of kidnapping. The appellant raised six issues.

• whether the findings on the kidnapping offense are legally and factually sufficient;
• whether trial counsel’s closing argument was improper and amounted to prosecutorial misconduct;
• whether the military judge abused his discretion by allowing witnesses not named on the charge sheet to testify as victims during the Government’s case in aggravation;
• whether the convening authority abused her discretion when she failed to grant Appellant’s request to defer confinement;
• whether Appellant’s pretrial and post-trial confinement conditions warrant relief under the Eighth Amendment; and
• whether Appellant’s right to a speedy trial was violated.

At 0800, on 1 April 2019, Appellant’s supervisor and mentor, SB, sat at her office desk when Appellant came to see her carrying a long shipping box, a duffel bag, and a soda. SB was a noncommissioned officer (NCO) and the two had known each other for approximately eight months. Although Appellant’s voice was faint, SB heard him say, “Can we talk? If not, I’m going to kill myself,” or words to that effect. SB asked Appellant to repeat what he had just said, which he declined to do. SB asked Appellant to write “Do Not Disturb” on the whiteboard outside her door, and Appellant complied. Appellant then reentered SB’s office, closed the door, and locked the pushbutton knob on the inside of the door without being asked. As Appellant sat in a chair next to the door, SB then asked what was in the box, and Appellant told her he had a shotgun. SB asked to see it, and Appellant partially removed the gun from the box. SB did not know if it was loaded and had thoughts that she would not make it out of her office or see her family again. Appellant related that he would kill himself if she did not talk with him or if there were any interruptions. SB had a “long talk” with Appellant and did not feel free to leave even as she needed to use the restroom. During their conversation, SB attempted to contact others outside the office by asking for Appellant’s permission to contact MG, an NCO junior in grade to SB, who was scheduled to come to her office, and to tell him not to come. Appellant gave her his permission to contact MG. MG contacted SB on her cell phone, and SB was able to message him at 0809 to say that Appellant was in her office and had locked the door. This was the first time that she notified anyone that she was being held against her will because Appellant was “watching [her] every move,” and SB wanted to comply with his demands for no interruptions. MG immediately asked, via text message, if he should help or call someone. When SB did not respond, MG knocked on SB’s office door, but no one answered. MG realized the door was locked, so he went to find the first sergeant.

The military judge concluded beyond a reasonable doubt that Appellant held SB against her will. On this point, he stated that Appellant made a “credible and imminent threat to commit suicide” and “that this suicidal threat and intention created mental coercion” on SB on two grounds: (1) SB felt “a moral obligation to try and prevent” Appellant’s suicide; and (2) SB “subjectively, feared that [Appellant] might also harm her if she attempted to leave.” The military judge further found that Appellant’s suicide threat also objectively constituted mental coercion because “a person of ‘reasonable moral strength’ would not have felt free to leave under the circumstances when departure would evidently result” in Appellant’s suicide. 

 United States v. Smith, IV. Appellant was sentenced to two-years confinement, a BCD, and the rest by officer members, for involuntary manslaughter by striking with his car and one specification of negligent homicide (charged in the alternative). The military judge dismissed the negligent homicide for sentencing. Appellant raised six issues none of which warranted relief.

• whether the military judge erred in excluding evidence of a speed study conducted by Appellant’s expert;
• whether the military judge erred in admitting evidence from the Government’s forensic pathologist regarding an estimate of the speed Appellant was traveling at the time he struck the victim;
• (3) whether Appellant’s convictions are legally and factually sufficient;
• (4) whether the military judge erred in failing to provide a defense-requested instruction on culpable negligence;
• (5) whether Appellant is entitled to relief due to the convening authority’s failure to take action on his sentence; and
• whether Appellant was denied effective assistance of counsel when his trial defense counsel failed to admit corroborating testimony regarding the weather conditions on the day of the accident.

So, the speed study was not admitted for insufficient data and study, but the WAG of the forensic pathologist was able to (IMHO) speculate as to the likely speed. Is this a classic bias in favor of government experts and against defense experts. See, e.g., D. Michael Risinger, Navigating Expert Reliability: Are Criminal Standards Being Left on the Dock? 64 ALBANY L. REV. 99 (2006) (some of his other writings are here.); Wes R. Porter, Repeating, Yet Evading Review: Admitting Reliable Expert Testimony in Criminal Cases Still Depends on Who is Asking. 36 RUTGERS L. RECORD 48 (2009) (Porter’s book Convicting the Innocent: Where Criminal Prosecutions Go Wrong. Harvard Univ. Press (2012) is a good read.
 
NMCCA

United States v. Caruso. In this GP case (conditional to preserve the cellphone issue), Appellant was sentenced to 24 months, a BCD, and RIR, for “one specification of conspiracy to wrongfully distribute a controlled substance, one specification of conspiracy to wrongfully introduce a controlled substance with intent to distribute, two specifications of wrongful distribution of a controlled substance, one specification of wrongful introduction of a controlled substance with intent to distribute, and three specifications of wrongful use of a controlled substance[.]” He raised two issues,

• The military judge erred in admitting evidence from Appellant’s smart phone based on a finding that Appellant voluntarily provided his smart phone’s passcode to law enforcement.
• He received ineffective assistance of counsel when his trial defense counsel [TDC] failed to seek suppression of evidence obtained from Appellant’s phone under the theory the phone was illegally seized.

While finding all copacetic, the court reminded us that “Appellant again claims he did not knowingly, intelligently, and voluntarily waive his constitutional rights when he provided his smart phone passcode to Investigator Hotel, which our superior court has found is a communicative act that implicates the privilege against self-incrimination.”
This one seems worth a CAAF grant and reversal on the passcode issue.

United States v. Nelson. In the MJA GP case, Appellant was sentenced to 10 months, a BCD, and reduction, for violating a lawful general order, carrying a concealed weapon, transporting illegal aliens within the United States, and conspiring to transport illegal aliens within the United States. (One of a number of similar cases at the time.) On appeal he raised a multiplicity issue which the court correctly found waived by the PTA and plea. He ar The court head-nods to Chin, but finds that there is no multiplicity because one specification alleges a “registration requirement” crime and the other a “storage requirement” crime.

WORTH THE READ?

Jeff Schogol, Eddie Gallaher now says SEALs intended to kill unarmed fighter and 'nobody had a problem with it.' Task & Purpose, 4 May 2021. Some interesting twists and turns and new comments from one of his defense attorney's about what was or was not known at the time of trial.

​Cheers, PC.