Week in Review

Army Court of Criminal Appeals

United States v. Thompson. Appellant pled guilty in accordance with a PTA to conspiracy to murder with premeditation and as an aider an abettor to premeditated murder. He was sentenced to Life and a DD.

On appeal ACCA sets aside the finding of x because the plea was improvident. A rehearing is allowed. Some briefs are available here. The issue is whether he had a "guilty mind." Or as ACCA says, "Actus non facit reum, nisi mens sit rea, 'the act alone does not amount to guilt; it must be accompanied by a guilty mind."' United States v. Hill, 55 Fed. 3d 1197, 1202 (6th Cir. 1995).

Appellant now asserts the military judge abused his discretion by accepting  his plea of guilty, arguing that the record discloses a substantial basis in law and  fact for questioning the plea. We agree. To quote Bailey, appellant's guilty plea admitted to an "evil-doing hand" but not an "evil-meaning mind." Stated another way, appellant's pica established the actus reus but not the requisite mens rea  necessary for a conviction as a principal to premeditated murder under an aider and abettor theory. 

Keep in mind this is a guilty plea case and must be analyzed for an abuse of discretion. See Moratalla, CAAFlog, Dec. 7, 2021. Essentially the court finds that Appellant's responses during the plea colloquy set up a substantial question because, "Guilty pleas "must be analyzed in terms of providence of the plea, not sufficiency of the evidence." United States v. Faircloth, 45 M.J. 1 72, 17 4 (C.A.A.F. 1996). 

In Nye & Nissen v. United States, the Supreme Court made clear that the mens rea for criminal liability as a principal under an aider and abettor theory is one of shared intent. 336 U.S. 613 (1949). " In order to aid and abet another to commit a rime it is necessary that a defendant 'in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed."' Id. at 619 ( quoting L. Hand, J ., in United  States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938)). The Supreme Court reaffirmed its adherence to Judge Learned Hand's concept of shared intent in Rosemond v. United States, referring to Judge Hand's formulation, quoted above, as a "canonical
formulation of that needed state of mind [; a formulation] later appropriated by this Court." 572 U.S. 65, 76 (2014).

The court observes that "Federal Circuit Court jurisprudence" is informative in interpreting the similar statute of UCMJ art. 877. So it adopts a shared intent theory of liability. The court found a number of statements in providency to be unhelpful in affirming the plea.

• he bore [the victim] "no ill will or malice"
  
• he "didn't desire for them to be killed"
  
• he "hoped nobody would be hurt" 

The "duality is paradoxical and cannot be reconciled" with the mens rea required. And, the military judge made a clemency recommendation stressing the three quotes. Which the court interpreted as an admission that the MJ did not believe an essential element had been met.

Navy-Marine Corps Court of Criminal Appeals

United States v. Delgado.

• Forum and pleas: MJA GP.
• Findings. Sexual abuse of a child.
• Sentence. Seven years, TF, RiR, DD.

Issues. (1) Sentence inappropriately severe; was required to spend 30 days in segregated confinement; and (2) denied speedy appellate review; Government took 46 days to docket his case with the Court.
Result. Findings and sentence affirmed.
Some facts.

Appellant was initially screened as a medium security prisoner. However, the Command Duty Officer [CDO] performing the screening decided to override this initial classification due to the length of Appellant’s sentence and classified him as a maximum security prisoner. As a result, Appellant was placed in segregated confinement away from general-population prisoners.

​Within the segregated confinement section of the MCF, there were multiple cells, at least two of which were occupied for most of Appellant’s time there. Thus, he was able to converse with other prisoners in segregated confinement while each of them remained in their respective cells. For only a few of Appellant’s 30 days in segregated confinement was he the only person in that section. He does not allege that he was denied life's necessities during this period. In addition, he was permitted to have visitors, watch television, and avail himself of telephone privileges. 

Appellant exhausted admin remedies, without success.
Court finds the Brig properly applied and followed instructions without any "ill motive."
Court is "reluctant to second guess" here.

Potential appellate case

United States v. Cadet JM. Trial starts Monday on allegations of sexual abuse of a child.

Cheers, Phil Cave