Court of Appeals for the Armed Forces
The Daily Journal for Oct, 12, 2021, reflects that the court is clearing out the Brubaker-Escobar trailer park.
Also from the Miscellaneous Docket.
No. 22-0009/AR. AV2, Appellant v. John H. Cook, Colonel, U.S. Army, Appellee and Clinton Murray, Master Sergeant, U.S. Army, Real Party in Interest. CCA 20210409. Notice is given that a writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on application for extraordinary relief in the nature of writ of mandamus was filed under Rule 27(b) on this date.
Some of the filings and Orders at ACCA are here.
Military Rule of Evidence 513 gives patients a privilege to prevent others "from disclosing a confidential communication made between the patient and a psychotherapist ... if such communication was made for the purpose of facilitating diagnosis or treatment of the patient's mental or emotional condition." Mil. R. Evid. 513(a). As noted in the military judge's ruling, petitioner's PTSD questionnaire is an internal Veteran's Administration document used to assess claims for disability benefits, and not for the purposes of treatment. We also take note of the military judge's observations that the form refers to petitioner as a "claimant" vice a "patient" and the document contains the disclaimer, "Please note that this questionnaire is for disability evaluation, not for treatment purposes."
Air Force Court of Criminal Appeals
United States v. Harrington. An officer panel convicted appellant of involuntary manslaughter and communicating a threat; he also pled guilty to using cocaine and marijuana more than once. Appellant was sentenced to 14 years, a DD, and RIR. There are a few AOEs.
The findings and sentence are affirmed. Judge Cadotte concurred but wrote separately to state disagreement with the finding of no error in the conduct of the unsworn victim statements.
Navy-Marine Corps Court of Military Review
Since January 1, 2021, the Appellant in nine cases has withdrawn from appellate review--out of 244 cases "decided." There also have been 156 summary dispositions (generally meaning that there are no issues raised or of significant merit to be addressed.)
In 2020, zero appellants withdrew from appellate review.
In 2019, one appellant withdrew from appellate review.
Are these interesting numbers? Do they mean anything?
Worth the read
Prof. Corey Yung's Sex Crimes: Second Edition is now available online.
Note. "The included material is either public domain, Creative Commons, or included with the copyright owner's permission. The book itself is released under a Creative Commons license which you can find at the beginning of the book. I encourage editing, revising, and distributing under those permissive terms."
LtCol Scheller's guilty plea is reported here.
Among those testifying on his behalf were Rep. Louie Gohmert (R.-Tex.) and Rep. Marjorie Taylor Greene (R-Ga.), two of the most controversial members of Congress. They questioned why Scheller has been prosecuted for his actions when senior U.S. officials such as President Biden, Defense Secretary Lloyd Austin and Gen. Mark A. Milley, chairman of the Joint Chiefs of Staff, have not.
I had always thought that witnesses (or the accused) could not impeach the verdict?
And, see LTC (R) B. D. Bigler, A New Paradigm for Plea Agreements Under the 2016 MJA. ARMY LAWYER, No. 6, 2019 at 48.
One month forfeiture of $5,000 in pay and a letter of reprimand.
"Marine Corps Judge Col. Glen Hines said he was considering giving Lt. Col. Stuart Scheller two months of docked pay but decided to limit it to one month because Scheller spent nine days in pre-trial confinement, known as the brig, at Camp Lejeune in North Carolina."
Human Trafficking. For those who have been, or might be, involved in such cases, here is a good overview of applicable federal statutes. Unless Congress were to do away with Article 134(3), UCMJ, these are potential assimilated crimes.
Cheers, Phil Cave
Per Task and Purpose:
"Marine Lt. Col. Stuart Scheller was sentenced on Friday to receive a punitive letter of reprimand and forfeit $5,000 of one month’s pay after pleading guilty to all charges stemming from his public tirades against top military and civilian leaders, the Marine Corps announced."
Comment: This sounds about right. Prison time would have been absurd.
"This is a case about the flagrant abuse, for obvious political purposes, of the due process
rights of a repatriated American POW...."
"Appeals - Summary Dispositions
No. 20-0358/AR. U.S. v. Carlos Muniz, Jr. CCA 20200092. On consideration of Appellant's petition for reconsideration and on further consideration of the granted issue, 80 M.J. 401 (C.A.A.F. 2020), we conclude that because Appellant was found guilty of at least one offense that occurred prior to January 1, 2019, the convening authority erred in taking "no action" on the sentence. However, because the charges were referred in this case after January 1, 2019, this error was procedural, and the United States Army Court of Criminal Appeals had jurisdiction to review Appellant's case. See United States v. Brubaker-Escobar, 81 M.J. __ (C.A.A.F. Sept. 7, 2021). Having reviewed the record of trial, we determine that the procedural error did not materially prejudice a substantial right. Accordingly, it is ordered that the petition for reconsideration is granted, that the Order in this case of June 29, 201 is vacated, and the judgment of the United States Army Court of Criminal Appeals is affirmed.
Comment: Whatever your views may be about a 4-judge court voting on petition grants, surely a summary disposition without a full court should provoke some skepticism. While short, this is a granted case with a reasoned decision and a judgment. Why are senior judges not being brought back to vote on these?
"One of Scheller's attorneys, Tim Parlatore, said in a phone interview that he could not yet get into the specifics of a pretrial agreement because some of the details are “still up in the air.” But he said the case began with Scheller demanding accountability from others, and it would “make him a hypocrite” if the Marine did not accept responsibility for his own actions.
The Marine hopes to avoid jail time and secure either an honorable discharge or a general discharge under honorable conditions.
“Our hope is for him to get a letter of reprimand, and no more,” Parlatore said."
Washington Post story here.
Update: He has now plead guilty. Read more here.
"For two decades following the 9/11 attacks, U.S. forces engaged in combat in Afghanistan and used implied congressional authorization of the “fundamental incidents” of war to conduct detention and military trials at Guantánamo Bay. Conflict in Afghanistan has ended, but detention and military commissions proceedings continue absent political will to end them. But that is no longer an option – as the Supreme Court held in Hamdi v. Rumsfeld, detention authority ends at the close of “active hostilities.” And as it held in Hamdan two years later, military commissions lack normal constitutional authority, depending on the availability of congressional and executive wartime powers for their existence. These trials, too, cannot legitimately continue post-conflict.
While pundits continue to propose winding down Guantánamo by seeking detainee transfers with “security assurances,” the law of war mandates prompt repatriation. There is no “bad dude” exception based on general threat perceptions – only an actual criminal sentence or pending charges justify delay. Both the law of war and the Constitution require that the U.S. must now either charge detainees in federal courts, extradite them to another country for prosecution, or promptly repatriate them. The Article provides recommended dispositions for the thirty-nine detainees remaining at Guantánamo at the time of the U.S. withdrawal from Afghanistan consistent with residual law of war mandates. It concludes by arguing that this outcome actually serves larger overall U.S. national interests – Guantánamo’s fiscal, legal, moral, and political costs have long outweighed any benefits."
Read the full article here.
Court of Special Appeals-Maryland
Respondek v. State. No double jeopardy, says the court relying on Gamble v. United States, ___ U.S. ___, 139 S.Ct. 1960, 1964 (2019). Note, part of the reasoning behind the initial Maryland sentence was input from his assigned DSO attorney, that he would be facing administrative elimination. Apparently, the GCMCA was not satisfied with the result and a court-martial ensued. See, Manual of the Judge Advocate General Manual (JAGMAN) JAGINST 5800.7G at 0124.b(1)(3).
This action requires us to determine whether Brad Respondek, a former lieutenant in the Navy, is required to register as a sex offender under Maryland's Sex Offender Registration Act ("MSOR") or, alternatively, the federal sex registration statute ("SORNA"). Mr. Respondek was first convicted in the Circuit Court for Montgomery County on two counts of possession of child pornography. Based on Mr. Respondek's exemplary behavior during his post-conviction probation period, the circuit court granted him a probation before judgment and excused Mr. Respondek from the obligation to register as a sex offender under MSOR as a result of that charge.
Ooops. Here is the NMCCA decision in his military appeal. No petition to CAAF.
Court of Appeals for the Armed Forces
Army Times: Two soldiers charged with murdering pregnant women in separate cases
"Two separate active-duty Army NCOs — one stationed at Fort Campbell, Kentucky, and the other at Fort Bragg, North Carolina — allegedly murdered women who were pregnant with their children."
One will be prosecuted by the Army. The other will be prosecuted by Georgia.
Stars & Gripes reports that LtCol Scheller is now pending Special Court-Martial on various charges. As to the potential sentence, see R.C.M. 1003(b)(8)(A), (c)(2)? Could that be part of the deal to get him released from PTC, and perhaps GP follow, and then a BOI waiver?
No. 21-0354/AF. U.S. v. Jamal X. Washington. CCA 39761. On consideration of Appellant's petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, and Appellee's motion to dismiss the petition, it is noted that the Court of Criminal Appeals affirmed some findings of guilt and set aside other findings of guilt and the sentence and authorized a rehearing. Under Article 67(c), Uniform Code of Military Justice, 10 U.S.C. § 867(c) (2018), this Court has jurisdiction to consider the petition. However, given the possibility of a rehearing, the petition is not ripe for review at this time. Accordingly, it is ordered that the petition for grant of review is denied without prejudice to Appellant's right to raise the matters asserted during the normal course of appellate review, and the motion to dismiss is denied as moot."
"No. 21-0319/AF. In re Damien G. Kawai. On consideration of the petition for extraordinary relief in the nature of a motion for compassionate release and reduction in sentence pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), it is ordered that the petition is dismissed for lack of jurisdiction."
Comment: This one looks like a pro se prisoner. Query: does the Prison Litigation Reform Act's "Three Strikes" rule apply to CAAF? Should it?
"(g) In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury." 28 U.S.C.A. § 1915 (West)
Reminder: GMJR is hosting a town hall in thirty minutes at the below link:
Admission free. The topic is "A View From the Bench."
I plan to ask the following question: "Is a judge annoyed by the 'kitchen sink' brief, in which a lot of issues are raised instead of only the best issues?" Many counsel feel pressured to raise issues so as to preserve them, but I wonder if this turns the judge against you. The adjudicator starts to feel as if he or she is merely beating back the various weak claims in order to finish the case.
Fed. Dist. Ct., S.D. California
United States v. Booker, No. 3:18-cr-02611-GPC, 2021 U.S. Dist. LEXIS 177641, 2021 WL 4244895 (S.D. Ca. Sept. 17, 2021).
Defendant moved to suppress the passcode to his iPhone 6 Plus, which was recorded by a Naval Criminal Investigative Service ("NCIS") agent during an interview, as well as any results of the subsequent searches of the iPhone 6 Plus using that passcode. Defendant alleges that the passcode was obtained in violation of his Fourth, Fifth, and Sixth Amendment rights as well as Miranda..
The court concludes that,
We have been discussing the practice of reservists serving as MJs while having full time employment as DOJ prosecutors. Concrete examples sometimes help. Consider this: link.
Lt. Col. Gleason will spend almost all of his weekdays standing up in federal court in North Carolina, starting his appearances with the words "Mr. Gleason for the United States." In the rare moments when he is acting as a reserve MJ, however, we expect him to shake off this habit and the attitudes that come with it, and to impartially judge a case in which "the United States" is on one side of the "V." The obvious, blatant conflict of interest is squarely framed by Gleason's own words:
“What can be better than representing the United States of America, and have the opportunity to do that every day, and have the opportunity to do the right thing. Not every job you can say that, but in this job, you do.” (emphasis added).
Presumably the "doing the right thing" part is serving as an MJ. What could be better, indeed, for Lt. Col. Gleason, than to be able to have a great career in DOJ and to also get to wear a robe once in a while. The accused who appear before him would likely answer that question differently. "What could be better?" A judge without the appearance of a conflict of interest.
GMJR Highlights Relevant Opinion from Judicial Conference re: Reservists Serving as MJs while Full Time DOJ Attorneys
Read more here.
"Given Advisory Opinion 76, should Reserve Component (RC) judge advocates who are state prosecutors or public defenders be assigned as general or special court-martial military judges, CCA judges, or military magistrates? What about RC judge advocates who are Assistant U.S. Attorneys, Main Justice attorneys, or federal defenders?"
Earlier we spotted a case where a federal child obscenity prosecutor sat as an MJ in a child abuse case.
"Two U.S. service members who have recovered from COVID-19 are asking a federal judge to put an immediate stop to the Defense Department's mandatory COVID-19 vaccine order.
Army Staff Sgt. Daniel Robert and Marine Corps Staff Sgt. Hollie Mulvihill filed a suit Aug. 17 in the U.S. District Court for the District of Colorado seeking an exception to the order for military members who have recovered from the illness."
Leider: Deciphering the "Armed Forces of the United States": A Cy Pres Reconstruction of the Modern Constitutional Armies and Militia
George Mason University - Antonin Scalia Law School, Faculty
Date Written: September 29, 2021
The Constitution provides for two kinds of military land forces—armies and militia. Commentators and judges generally differentiate the armies from the militia based upon federalism. They consider the constitutional “armies” to be the federal land forces, and the constitutional “militia” to be state land forces—essentially state armies. And the general consensus is that the militia has largely disappeared as an institution because of twentieth-century reforms that brought state National Guards under the control of the federal Armed Forces.
This Article argues that the general consensus is wrong. At the Framing, the proper distinction between “armies” and “militia” had to do with professionalism, not federalism. Armies comprised soldiers for whom military service was their principal occupation, while the militia comprised individuals who were subject to military service only on a part-time or emergency basis. Put differently, the armies were the regular forces, while the militia was the citizen army. From these definitions, this article then provides a better translation of the Framing-era military system to the structure of the modern Armed Forces."
‘Crapshoot’ sentencing by court martial juries likely to end, advocates for new legislation say
"Court-martial sentencing by juries may go the way of flogging, a change many military justice experts say is long overdue.
Military judges instead would hand down sentences based on federal guidelines as part of military justice system reforms proposed in the 2022 National Defense Authorization Act. The act isn’t expected to be signed into law until sometime after the new fiscal year starts Friday.
The proposal is supported by the Pentagon and is included in both the House and Senate versions of the legislation."
Reminder: the open call for papers discussed here has a deadline of this Thursday at midnight, EST.
"Town Hall 20: A View From the Bench (A Conversation With Military Judges), Monday, Oct. 4, 2:00 p.m. (East Coast US)
Town Hall 20: A View From the Bench (A Conversation with Military Judges)
Monday, October 4⋅2:00 – 3:00pm -- please join us for this special event -- and invite friends who may be interested.
“Lt. Col. Stuart Scheller Jr. is currently in pre-trial confinement in the Regional Brig for Marine Corps Installations East aboard Marine Corps Base Camp Lejeune pending an Article 32 preliminary hearing,” said Capt. Sam Stephenson, a spokesman for Training and Education Command. “The time, date, and location of the proceedings have not been determined. Lt. Col. Scheller will be afforded all due process.”
Read the Task and Purpose article here.
CAAF's 2021 term is approaching fast. Here are the four cases before CAAF next week:
Tuesday, October 5, 2021
United States v. Julian D. Schmidt
Case Summary: GCM conviction of sexual abuse of a child. Granted issues question: (1) whether the phrase "in the presence of" used to define the term "lewd act" in Article 120b(h)(5)(d) requires the child to be aware of the lewd act or merely that the accused be aware of the child's presence; (2) whether Appellant affirmatively waived any objection to the military judge's instructions and the failure to instruct on the affirmative defense of mistake of fact; and (3) whether having assumed deficient performance by counsel, the lower court erred in finding no prejudice.
United States v. Virginia S. Moratalla
Case Summary: GCM conviction of attempted larceny, larceny, drawing and uttering a check without sufficient funds, bank fraud, and dishonorably failing to pay debt. Granted issue is whether the Appellant's guilty plea to bank fraud under 18 U.S.C. Section 1344 was improvident.
Wednesday, October 6, 2021
United States v. Bradley M. Metz
Case Summary: GCM conviction of arson, housebreaking, and unlawful entry. Granted issue is did the lower court err by failing to apply Brown v. Illinois, 422 U.S. 590 (1975), despite finding Appellant was illegally apprehended.
United States v. Jerard Simmons
Case Summary: GCM conviction of sexual assault of a child, extortion, and producing child pornography. Granted issue questions whether the military judge erred in allowing the government to make a major change to a specification, over defense objection – almost tripling the charged time frame – after the complaining witness's testimony did not support the offense as originally charged and the prosecution had rested its case.
Briefs for all cases can be found here.
-Current Term Opinions
Joint R. App. Pro.
Global MJ Reform
LOC Mil. Law