Week(s) in Review

United States Supreme Court

Jacobson v. Massachusetts, 197 U.S. 11 (1905). A seminal case on state compelled vaccinations (smallpox). The Supreme Court held that the "police power" allowed the state to create a mandatory smallpox vaccine program administered by a board of health and enforced through criminal sanctions. 

In a recent case, the Second held that "New York State's requirement that all children be vaccinated in order to attend public school (subject to medical and religious exemptions), does not violate substantive due process rights, the Free Exercise Clause of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, the Ninth Amendment, and both state and municipal law. Phillips v. City of N.Y., 775 F.3d 538, 540 (2d Cir. 2015).

Court of Appeals for the Armed Forces

United States v. Mellette, grant.
 
I.  M.R.E. 513 EXTENDS THE PYSCHOTHERAPIST-PATIENT PRIVILEGE TO A "CONFIDENTIAL COMMUNICATION" BETWEEN PATIENT AND PSYCHOTHERAPIST OR ASSISTANT. DID THE LOWER COURT ERR BY CONCLUDING DIAGNOSES AND TREATMENT ARE ALSO SUBJECT TO THE PRIVILEGE, INVOKING THE ABSURDITY DOCTRINE?
 
II. DID THE NMCCA DEPART FROM SUPREME COURT AND CAAF PRECEDENT BY NOT REVIEWING THE EVIDENCE AT ISSUE—DIAGNOSES AND TREATMENT, INCLUDING PRESCRIPTIONS—IN CONCLUDING: (1) THE MENTAL HEALTH EVIDENCE WAS BOTH PREJUDICIAL AND NON-PREJUDICIAL; AND (2) FAILURE TO PRODUCE IT WAS HARMLESS BEYOND A REASONABLE DOUBT WHERE THE UNKNOWN EVIDENCE COULD HAVE NEGATED THE EVIDENCE THE NMCCA CLAIMED TO BE "OVERWHELMING" EVIDENCE?

The NMCCA decision

​United States v. Adams.

This case, like United States v. McPherson, __ M.J. __ (C.A.A.F. 2021), requires us to decide whether Appellant’s prosecution for certain offenses was time-barred by the statute of limitations provision in the 2016 version of Article 43(b)(1), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 843(b)(1) (2012 & Supp. IV 2013–2017). Pursuant to the Court’s decision in McPherson, we hold that the statute of limitations had expired for Appellant’s charged offenses under Articles 125 and 134, UCMJ, 10 U.S.C. §§ 925, 934 (2000).

This case differs slightly from McPherson, however, because the Government originally charged Appellant in 2012, years before Congress passed the 2016 amendments to Article 43(b), UCMJ, which retroactively shortened the relevant statute of limitations.

We noted United States v. Braimer, a published opinion of the NMCCA. A petition for review was denied by a four-member CAAF on September 8, 2021.

ee here for a short note on why it is unfair to petitioners when there is no fifth judge to decide their petitions. Having a CAAF was partly intended to instill in servicemembers and the public that an accused and appellant will get a fair shake. At CAAF, the prosecution has a 100% guarantee the court will hear an issue that the government wants decided in its favor. The Appellant is already at a disadvantage because he has to plead rather than direct, and without a fifth judge the odds for an appellant are lower. 

Air Force Court of Criminal Appeals

​​United States v. Lawrence. Appellant was sentenced to 120 days, a BCD, and RIR. He had been found guilty of failures to go, absence without leave, using marijuana and cocaine, and disorderly conduct.

​Appellant raises three issues3 on appeal: (1) whether trial counsel improperly argued facts not in evidence, unit impact, and uncharged misconduct; (without objection) (2) whether the convictions for wrongful use of cocaine and marijuana are void because they violate the protections of Air Force Instruction (AFI) 44-121, Alcohol and Drug Abuse Prevention and Treatment (ADAPT) Program, dated 18 July 2018; and (3) whether the pleas to disorderly conduct and wrongful drug use were provident. After careful review of the record and consideration of Appellant’s assignments of error, we find the part of issue (3) relating to wrongful drug use merits no further discussion nor warrants relief. See United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987). 

United States v. Samples. In this GP case, Appellant was convicted of using marijuana and oxycodone, attempting to possess oxycodone, and a failure to go. It's a post trial error case which is remanded for correction. Here's a wrinkle that led to the error.

Appellant initially faced six charges with a total of eight specifications. As part of his plea agreement with the convening authority, Appellant waived his right to a trial by members and requested to be tried by military judge alone. Appellant agreed to plead guilty to the charges and specifications previously listed and not guilty to [other] specifications including a Article 107, 112a,  131b, and 134. Appellant also pleaded guilty to an Additional Charge with one specification, in violation of Article 134, UCMJ. However, the military judge did not find Appellant’s guilty plea to the Additional Charge and its Specification to be provident based on the charge being preempted by, and he granted a defense request to dismiss the Additional Charge and its Specification, without prejudice, for failing to state an offense. Appellant and the convening authority subsequently agreed to a new written plea agreement which omitted any reference to the Additional Charge. (Edited.)

United States v. John. In this GP SPCM case, Appellant was sentenced to seven months, a BCD, forfeiture of $1000.00 times six, and RIR. He had used controlled substances, stole, burgled, and broke into a house. On appeal he raised,

• TC prosecutorial misconduct by arguing in pre-sentencing that the victims’ unsworn statements constituted aggravating evidence;
  
• the CA erred by not providing Appellant an opportunity to rebut matters submitted by one of the victims, as well as considering adverse matters that were not presented at trial;
  
• trial counsel committed prosecutorial misconduct during presentencing by arguing Appellant failed to apologize in violation of his right to remain silent; and
  
• the court should exercise its Article 66, UCMJ, 10 U.S.C. § 866, authority to address an unpreserved objection of unreasonable multiplication of charges for sentencing.

The court found error in arguing the VIS as "evidence" but contextually it was a MJA case and had not substantial impact on the sentence. The court found no clear error to an unobjected to argument and no prejudice in arguing whether Appellant had "apologized." Again, pointing out this was a MJA trial.

Finding no prejudicial error the findings and sentence were affirmed.

United States v. Lepore, __ M.J. ___ (A. F. Ct. Crim. App. 2021). Legally this is a jurisdiction case related to collateral effects of a conviction, sentence, and the documents recording such. But, the case should be read for its discussion of the "substantial assistance" in assisting investigate other offenders and of the effects of 18 U.S.C. 922(g)(3).

Article 66, UCMJ, “does not extend a CCA’s reach to all finance or personnel matters that may have some link to a court-martial sentence.” Id. Buford specifically held that this court lacked jurisdiction to grant relief for the appellant’s claim that he was owed pay and allowances for accrued leave that he used following his court-martial prior to going onto an unpaid excess leave status. Id. However, this court has subsequently relied on Buford to find we lack jurisdiction in other contexts where appellants have sought relief for alleged deficiencies unrelated to the legality or appropriateness of the court-martial findings or sentence. See United States v. Uribe, No. ACM 39559, 2020 CCA LEXIS 119, at *44–48 (A.F. Ct. Crim. App. 16 Apr. 2020) (unpub. op.) (citations omitted) (“We are not persuaded that policing the vagaries of the military pay system falls within our limited jurisdiction over the findings and sentence of a court-martial.”), aff’d on other grounds, 80 M.J. 442 (C.A.A.F. 2021); United States v. Warren, No. ACM S32565, 2020 CCA LEXIS 59, at *16–17 (A.F. Ct. Crim. App. 28 Feb. 2020) (unpub. op.) (holding the incorrect coding status as a prisoner after release from confinement was outside our jurisdiction), rev. denied, 80 M.J. 188 (C.A.A.F. 2020); United States v. Faughn, 2019 CCA LEXIS 469, at *13 (A.F. Ct. Crim. App. 26 Nov. 2019) (unpub. op.) (finding no jurisdiction over alleged irregularity in receipt of pay prior to start of appellate leave); United States v. Yeargin, No. ACM 39506, 2019 CCA LEXIS 294, at *2–3 (A.F. Ct. Crim. App. 8 Jul. 2019) (unpub. op.) (per curiam) (holding garnishment of wages to repay Government for entitlement fraud “is an administrative question over which we have no jurisdiction”); United States v. Prasad, No. ACM 39003, 2019 CCA LEXIS 246, at *16– 23 (A.F. Ct. Crim. App. 10 Jun. 2019) (rejecting claim for relief as compensation for post-trial moving expenses), rev’d on other grounds, 80 M.J. 23 (C.A.A.F. 2020). We also find persuasive our sister court’s published opinion in United States v. Baratta, 77 M.J. 691, 695 (N.M. Ct. Crim. App. 2018), where the United States Navy-Marine Corps Court of Criminal Appeals (NMCCA) found it lacked jurisdiction under Article 66, UCMJ, to address an alleged error highly analogous to the one Appellant asserts in the instant case. In Baratta, the appellant asserted that the Report of Results of Trial (RRT) prepared by the Government incorrectly recorded the offense codes to be reported to the Defense Incident-Based Reporting System (DIBRS), such that civilian reporting systems reflected the appellant had been convicted of offenses more serious than was actually the case

It seems that when the legal office and SJA prepare post-trial documents with coding errors in DIBRS, there is no CCA jurisdiction to order correction of the errors. Perhaps the remedy is with a BCMR?

United States v. Budde. The AF seem to be having more drug related courts-martial, do they not. Anyway, in this GP MJA case Appellant was sentenced to 12 months, a BCD, and reprimand. He had used 'rooms, LSD, and MDMA various times. Appellant's Grosty submission challenged a defective and incomplete record of trial and an R.C.M. 707 issue. The court sua sponte identified a post-trial error. 

Army Court of Criminal Appeals

United States v. Hunt. An officer panel convicted him of attempted sex abuse of a child and communicating indecent language. They sentenced him to a BCD, 30 months, RIR. The issue was denial of expert assistance, which the court found not prejudicial. They closed with a Restatement of the Law on Catch-22.

In closing, both our court and our superior court have acknowledged that it can be difficult to demonstrate an expert's necessity before first securing the expert's services. See United States v. Warner, 62 M.J. 114, 122 (C.A.A.F. 2005) (The best way to articulate and explain the need for an expert is by using just such an expert to describe their evidence analysis and development process.") (quoting  United States v. Kreutzer, 59 M.J. 773, 777 & n.4 (Army Ct. Crim. App. 2004)). Nevertheless, to be entitled to expert assistance at government expense, defendants must make more of a showing of necessity than appellant did here. 

United States v. McClure. An enlisted panel, convicted appellant of rape and sexual assault. They sentenced him to a DD, five years, TF, RIR, and a reprimand.

The fact that a victim keeps a diary or journal (hereinafter diary), in and of  itself, does not establish a right in an accused (hereinafter appellant) to see the diary, nor does it compel the presiding military judge to conduct an in camera review of said diary. Similarly, a victim diagnosed with a mental health disorder requiring the taking of prescribed medications does not, without more, mandate an in camera review of the victim's mental health records. 

There being no prejudicial errors, the findings and sentence were affirmed.

Navy-Marine Corps Court of Criminal 

United States v. Alkazahg.

Appellant raises two assignments of error. He argues first, the Government failed to state an offense when it alleged he possessed a machine gun,2 because the “bump stock” he possessed did not meet the definition of “machinegun” under 26 U.S.C. § 5845(b), and second, that the military judge erred in failing to inquire into Appellant’s understanding of the sentencing terms in his plea agreement. We find no prejudicial error in the military judge not inquiring into Appellant’s understanding of the plea agreement.3 However, we find the Government failed to state an offense when it charged Appellant with one specification of possessing a machine gun. We set aside and dismiss this specification and the segmented portion of the corresponding sentence. We reassess the unitary and segmented portions of the remaining sentence and conduct an analysis for sentence appropriateness. Finding all of the remaining segmented sentences inappropriate, we affirm the remaining findings and affirm the unitary portion of the sentence, but only affirm the remaining segmented portions of the sentence to the extent they are appropriate. We take action in our decretal paragraph.

Pending appellate cases

United States v. Hernandez-Perez.

An Army intelligence analyst pleaded guilty Monday to killing his estranged wife in her on-base home after disobeying a no-contact order and spending the night with her following their first wedding anniversary.
Spc. Raul Hernandez-Perez, 24, testified during his court-martial that he became enraged while thinking about their divorce proceedings and actions that led to the split so he hit 25-year-old Selena Roth in the back of the head with a wooden baseball bat, then stabbed her in the back after noticing that she was still breathing.

It appears he was sentenced to 62 years confinement, a DD, and RIR. Interestingly, the report notes that,

Col. Mark Bridges, a judge in the 25th Infantry Division Staff Judge Advocate’s Office, also sentenced the soldier to a concurrent two-month sentence for disobeying his first sergeant’s order to have no contact with Roth.

As PP&M might say, when will they ever learn.

Possible appellate cases

United States v. RN. ​

U.S. forces were supposed to remain two kilometers away from pro-Syrian regime fighters, but last summer, a group of 82nd Airborne Division paratroopers approached a regime checkpoint and triggered a gunfight, according to charge sheets provided to Army Times this week.
​
On Aug. 17, 2020, Sgt. 1st Class RN’s patrol drove up to a checkpoint in northeastern Syria manned by troops loyal to Syrian President Bashar al-Assad. Nicoson dismounted his vehicle and threatened to kill the pro-regime fighters if they did not allow B Troop, 1st Squadron, 73rd Cavalry Regiment, through, the charge sheets said.

One report now suggests that a primary motive for court-martial is the alleged destruction of evidence. See Task & Purpose, September 16, 2021.

Some may remember United States v. Ashby, 68 M.J. 108 (C.A.A.F. 2009) and United States v. Schweitzer, 68 M.J. 133 (C.A.A.F. 2009). See also, Italian rage at U.S. pilot's acquittal. ; Pilot in Ski Gondala Accident Convicted in Tape Destruction.

United States v. A.S.R.

A warrant officer stationed at Fort Bragg, North Carolina, faces a general court-martial next year for the alleged murder of two toddlers he adopted in 2017, according to charge sheets.
​
Two years after the alleged murders, [he] was also accused of sexual assault by a woman with whom he previously had a relationship, according to emails and other records obtained by Army Times.

In the News

Air Force Mag reports,

Less than 10 months after the Air Force Inspector General released an Independent Racial Disparity Review detailing numerous disparities facing Black Airmen, a second review recorded still more disparities facing other racial and ethnic minorities, as well as women, in the Air and Space Forces.
Released Sept. 9, the 208-page report details disparities in recruitment, retention, and promotions among women, Asian Americans, Native Americans, Latinos, and Pacific Islanders when compared to white men. On top of that, one in every three female service members said they had experienced sexual harassment during their careers.

The trial penalty. Defense counsel know that a client who pleads not guilty risks a trial penalty for doing that if convicted. That risk is not by itself objectionable, but what if the penalty becomes a coercive factor rather than a reasonable consequence. Prof. Berman at Sentencing Law & Policy reports on a "notable new commentary on plea practices and the trial penalty over at The Crime Report under the headline "‘Planning for Losing’: A Lesson on Justice Reform from Afghanistan.""

Th[e] dynamic has led to a disparity or “trial penalty” that is so pronounced that, in addition to expending the processing of the guilty, it effectively coerces many innocent defendants to plead guilty.

Prof. Berman emphasizes 

A National Association of Criminal Defense Lawyers report, for example, found that the average sentence for fraud defendants who went to trial in 2015 was three times higher than the sentence for those who pleaded guilty; for defendants charged with burglary and embezzlement, the sentence at trial was almost eight times higher.
Indeed, one simulation suggests that more than half of participants in an experiment would be willing to confess to a crime they didn’t commit in exchange for a significantly lower sentence. Some 15 percent of DNA exonerations, which generally involve charges for the most serious crimes, involve those who pleaded guilty....
The trial penalty that coaxes both the guilty and innocent to enter pleas is exacerbated by mandatory minimum statutes, which trigger automatic penalties if invoked by the prosecutor, as well as sentencing enhancements within the discretion of the prosecutor, such as whether to file notice with the court of a prior offense.
One potential solution for reining in the trial penalty is to require that any plea deal offered by prosecutors include a contingency guaranteeing that the sentence would be similar upon conviction at trial.  Under this scenario, defendants who exercise their right to go to trial might be entitled to a sentence that is the same or no more than 15 percent longer than the best offered deal.

Is the likelihood of an excessive trial penalty a suitable consideration for a CCA when conducting a sentence appropriateness review?

Cheers, Phil Cave