The AFCCA has denied a petition for a writ of habeas corpus in United States v. Hippolyte.
The United States Court of Appeals for the Armed Forces issued a decision in Petitioner’s case on 1 August 2019, affirming the findings and sentence as approved by this court. United States v. Hyppolite, 79 M.J. 161, 167 (C.A.A.F. 2019). Thereafter, Petitioner did not file a petition for writ of certiorari with the United States Supreme Court, and direct review of Petitioner’s case was complete. On 8 December 2020, the commander of the Air Force District of Washington ordered execution of Petitioner’s dishonorable discharge, having already ordered the other portions of Petitioner’s sentence executed.
Accordingly, the AFCCA held it lacks jurisdiction.
Here are links to the prior decisions in the case: AFCCA, CAAF.
Hyppolyte was charged with five abusive sexual contacts. He was sentenced to seven years and a Duck Dinner with all the trimmings.
The issue at CAAF asked if evidence of one or more charges on the charge sheet could be used and argued under Mil. R. Evid. 404(b) to demonstrate a "common plan or scheme." Now might be a good opportunity to re-read the CAAF opinion for a discussion on how Mil. R. Evid. 404(b)(1) and (b)(2) work at trial.
Use of such evidence to prove a propensity is prohibited. Mil. R. Evid. 404(b)(1). But,
Under M.R.E. 404(b)(2), while evidence of a crime, wrong, or other act may not be used to show character or propensity, it “may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” As the motions judge correctly recognized, we have previously held that one proper purpose of such evidence is to prove the existence of a plan or scheme. United States v. Munoz, 32 M.J. 359 (C.M.A. 1991); United States v. Johnson, 49 M.J. 467 (C.A.A.F. 1998).
The trial judge had admitted the evidence to demonstrate a common "scheme." AFFCA disagreed that the evidence showed a common scheme but found the error harmless. The CAAF affirmed AFCCA but,
[C]onclude[d] that the motions judge and trial judge did not abuse their discretion in their M.R.E. 404(b) ruling. We therefore d[id] not reach the issue of prejudice.
Judge Ohlson filled a dissent in which he argued the AFFCA was right as to the abuse of discretion and the trial error was materially prejudicial.
Oh, and should you ask, the writ was filed in preparation for a federal habeas petition and to show exhaustion of the military appellate system. I suspect they did not petition the Supremes directly because it would be a fruitless exercise--not an issue the court is likely to grant on. Cf. Noyd v. Bond, 395 U.S. 683, 698, n.11 (1969). We do not believe that petitioner may properly be required to exhaust a remedy which may not exist. Cf. Union Pacific R. Co. v. Weld County, 247 U.S. 282 (1918); Township of Hillsborough v. Cromwell, 326 U.S. 620 (1946).
A recent article by CAAFlog intern Ensign Jacob Weaver has been circulated on SSRN:
Restoring the Power of the Convening Authority to Adjust Sentences
"In 2013, Congress abrogated the power of certain military officers to reduce court-martial sentences, thereby eliminating a military defendant’s best hope for efficient and effective relief from common legal errors in the military justice system. While the overhaul of the Uniform Code of Military Justice (UCMJ) in 2016 promised significant reform, it ultimately failed to substantially
reduce common legal errors This Note analyzes how the 2013 and 2016 reforms have combined to prevent military defendants from receiving timely and adequate relief. In light of this analysis, this Note suggests an amendment to the UCMJ that would restore to certain officers a limited authority to reduce sentences based on legal errors. Such a reform ultimately addresses the core concerns that led to the 2013 revision while simultaneously providing an efficient and effective remedy for common legal errors, furthering the UCMJ’s aim of promoting justice and maintaining good order and discipline."
Editor's note: This is a welcome addition to the CA conversation and a fine piece of scholarship, but we should be candid here. This reform is inconceivable in the current political environment.
Just one day after the members of the 90-day Commission were released, the DOD Inspector General released its report on Ronnie J. Booth, former Auditor General of the Navy, finding that he engaged in a "pervasive pattern of sexual harassment and quid pro quo sexual propositions when interacting with female subordinates at the Naval Audit Service." The IG's report states that this pattern of abuse occurred over the course of 20 years.
Elizabeth M. Berecin
United States v. Arnold. “Appellant—a reservist—raised three issues: (1) whether the court-martial lacked jurisdiction to impose confinement on Appellant because his recall to active duty for trial was not properly authorized by the Secretary of the Air Force; (2) whether Appellant’s conviction violated the Fifth Amendment’s Double Jeopardy Clause; and (3) whether Appellant was entitled to new post-trial processing due to errors in the post-trial process. We resolved the first two issues against Appellant, but we found that post-trial errors required new post-trial processing and action.” This was a case recalled to AFCCA based on completion of actions on remand.
United States v. Babian. There was no illegal pretrial confinement as argued by the Appellant.
United States v. Rothe. “Appellant raises two issues before this court: (1) whether the military judge erred in denying a defense motion to abate the proceedings due to the government’s destruction of evidence; and (2) whether the evidence is factually insufficient to sustain a guilty finding under either a subjective or objective test for the defense of entrapment.” (More to come on this one later in the week.)
United States v. Padilla. The Appellant raised four issues, but the case was remanded to correct various post-trial errors.
United States v. Berrian. “Appellant asserts two assignments of error [AOE]: (1) that the military judge abused his discretion by denying a challenge for cause for implied bias of a potential member with extensive experience as a victim advocate and (2) that it was plain error to admit a hearsay statement as a prior consistent statement. We find no prejudicial error and affirm.” This is a facts-based case, and the facts support no abuse of discretion.
PENDING APPELLATE CASES
United States v. Souders, trial at RAF Mildenhall. Souders was found guilty for viewing indecent material and possessing and viewing child pornography but was acquitted of attempted sexual assault of a child and one count of committing a lewd act on a child. Actions which got him nine years and a duck dinner.
We should dwell a bit on the two major arguments that appeared at the hearing, and which appear to be somewhat new (at least in emphasis). I will charitably reconstruct each.
For Commander Prosecutorial Discretion: the "it's also bad out there" argument."
Against Commander Prosecutorial Discretion: the "very few commanders can convene courts" argument.
Are these good arguments? I leave it to you to discuss...
Readers chose this as the case with the best briefing and oral argument by the Government of the last year.
"Mandatory Review Case Filed
No. 21-0193/AR. U.S. v. Nidal M. Hasan. CCA 20130781. Notice is given that a case requiring mandatory review of the decision of the United States Army Court of Criminal Appeals in which the affirmed sentence extends to death was filed under Rule 23 on this date. Appellant will file a brief under Rule 23(b) on or before the 24th day of May, 2021.
Orders Granting Petition for Review
No. 21-0089/MC. U.S. v. Jonathan Quezada. CCA 201900115. 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:
THE MILITARY JUDGE INSTRUCTED MEMBERS THAT THEY COULD CONSIDER THE FACT THAT APPELLANT MADE THE FALSE OFFICIAL STATEMENT WITH WHICH HE WAS CHARGED AS EVIDENCE THAT HE WAS GUILTY OF ANOTHER CHARGED OFFENSE. DID THIS INSTRUCTION VIOLATE APPELLANT'S RIGHT TO A PRESUMPTION OF INNOCENCE UNDER UNITED STATES v. HILLS, 75 M.J. 350 (2016)?
Briefs will be filed under Rule 25.
No. 21-0146/AF. U.S. v. Cory J. Frantz. CCA 39657. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:
WHETHER THE LOWER COURT ERRED WHEN IT RULED THAT IT COULD NOT CONSIDER EVIDENCE OUTSIDE THE RECORD TO DETERMINE SENTENCE APPROPRIATENESS UNDER ARTICLE 66(c), UCMJ.
No briefs will be filed under Rule 25."
A new student note in the Texas Law Review critiques the standard of review for the collateral review of court-martial convictions.
Clara Crenshaw, Habeas Review of Courts-Martial: Revisiting the Burns Standard, 99 Tex. L. Rev.
"The 1953 Supreme Court decision Burns v. Wilson, which articulated the standard of review for military habeas corpus petitions, has left the legal community unashamedly confused. While there was no majority opinion, the standard of review advanced by the plurality has largely been taken as the rule emanating from the Court. Accordingly, the test for determining if habeas review is appropriate is whether the military court has given “full and fair consideration” to the claims. Circuit courts of appeal have struggled ever since this decision to configure exactly what “full and fair consideration” means, resulting in many different approaches.
This Note argues that, based on historical analyses and legal developments, a modified version of the Fifth Circuit’s four-prong inquiry in Calley v. Callaway would be a satisfactory solution to the current confusion. This new standard would open the door to many more successful military habeas petitions, while at the same time protecting the distinctive nature of military law. It would do this by properly differentiating between military factual and legal determinations. Factual determinations would be brought in line with civilian habeas, while the military’s special policy needs would be considered in legal determinations. More importantly, however, it would provide a cohesive standard across jurisdictions. The strength of a military prisoner’s habeas petition should not be based upon where he or she is incarcerated."
Scholarship Saturday: Focus on ethics to restore public confidence in commanders and judge advocates
A few months ago, in Scholarship Saturday: We hear drums, drums in the deep, this column explored the ways that the sexual assault conundrum has invited scrutiny towards the military justice enterprise in toto. As that article explained, the result of that scrutiny has been a profound weakening of the power of commanders and judge advocates to prevent and correct wrongful court-martial convictions. Specifically, military commanders have been stripped of their ability to test evidence prior to trial through Article 32 investigations, and their ability to correct errors post-trial has likewise been dismantled. Additionally, as this column discussed in a follow-up article, constraints have been imposed on the power of the ad interim judges (née military lawyers) of the military courts of criminal appeals to remedy erroneous convictions on appeal.
These changes were spurred forth by long-standing and persistent Congressional and Presidential chastisement, enthusiastic plaintiff’s lawyers, and blistering critiques from public interest groups seeking both systemic change and a means by which military sexual trauma victims might sue the government for damages. This effort has left court-martial panels as the primary guarantor of justice for accused servicemembers in all court-martial proceedings, not just sexual assault cases. Relying so heavily on court-martial panels to do justice is a practice fraught with peril. First, under Article 25(e), rather than a trial by peers, a court-martial panel is made up entirely of the accused’s superiors and, rather than being picked impartially, those superiors are hand-selected by the prosecuting authority. This naturally gives rise to a concern that the members might feel inappropriate pressure, real or imagined, to reach a conviction on the command’s allegations. This concern is deepened by the fact that, as this column recently discussed, the latest defense funding act included language designed to make it harder for the lawyers sitting on military appellate courts to reverse court-martial panels that appear to have been improperly influenced by commanders.
That inherent conflict of interest suffered by every court-martial panel when they walk into the court-room is only a prologue to the constitutional deficits they suffer when they enter deliberations according to the Supreme Court’s decisions in Ballew, Burch, and Ramos. In sum, perusing those cases leads naturally to the conclusion that, under the Fifth Amendment, court-martial panels are manifestly too small to engage in reliable deliberations, are (if Ramos is correct) perhaps especially likely to disregard the dissent of racial and sexual minorities on the panel, and those infirmities are made all the worse by the fact that their verdicts are not required to be unanimous. These deficits make court-martial panels a particularly poor underwriter of liberty. And, that deficit does not even account for the fact that the military accused is not afforded a trial before a true judicial officer – instead, they must settle for a military lawyer detailed ad interim as a military judge by the same Judge Advocate General who is responsible for the prosecutors.
The common thread that runs throughout the narrative above is trust. Right or wrong, and despite the inherent infirmities, the public has demonstrated, through its elected officials, that it trusts the everyday Soldiers, Sailors, Marines, Airmen, Guardians, and Coastguardsmen who make up military court-martial panels. And, just the same, the public has demonstrated a loss of confidence in commanders and the lawyers who advise them.
Commanders and judge advocates will continue to bleed authority until they repair the trust it relies upon. A recent article published in the Hofstra Law Review by Ohio State University Moritz College of Law Professor Dakota S. Rudesill entitled, “At the Elbow and Under Pressure: Legal, Military, and Intelligence Professionals,” posits that it will take both commanders and lawyers, acting in concert, to get that done. Below the break, Professor Rudesill proposes a plan of action:
NMCCA released its per curiam opinion in United States v. MacWhinnie, siding with the government and affirming the conviction and sentence.
MacWhinnie opinion here.
United States v. Moratalla—WHETHER THE APPELLANT'S GUILTY PLEA TO BANK FRAUD UNDER 18 U.S.C. §1344 WAS IMPROVIDENT.
United States v. Turner--WHETHER THE LOWER COURT ERRED WHEN IT RULED THAT IT COULD NOT CONSIDER EVIDENCE OUTSIDE THE RECORD TO DETERMINE SENTENCE APPROPRIATENESS UNDER ARTICLE 66(c), UCMJ.
United States v. Davenport—WHETHER THE CONVENING AUTHORITY'S FAILURE TO TAKE ACTION ON THE SENTENCE DEPRIVED THE ARMY COURT OF JURISDICTION UNDER ARTICLE 66, UCMJ.
United States v. Brubaker-Escobar--WHETHER SECTION 6(b) OF EXECUTIVE ORDER 13,825 OF MARCH 1, 2018 WAS A LAWFUL EXERCISE OF THE AUTHORITY DELEGATED TO THE PRESIDENT BY SECTION 5542(c)(1) OF THE NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2017 OR BY ANY OTHER LAW. (This is an unusual event for CAAF to specify new issues post oral argument.)
United States v. Brown., 80 M.J. ___ (A. Ct. Crim. App. 2021).
The court applies the “familiar Moreno due process analysis” And ,
We recognize this opinion deviates from the plain language of Moreno. However, we cleave as closely as possible to the language of that opinion, applying the timelines of Moreno to the remaining post-trial processing guideposts in the new legal landscape, and maintaining the fundamental precept that "convicted servicemembers have a due process right to timely review and appeal of court martial convictions." Moreno, 63 M.J. at 129 (citing Toohey, 60 M.J. at 101).
United States v. Hertel. A post-trial error case. This case demonstrates some of the issues that can arise when the convening authority is acting on requests to waive and defer forfeitures.
United States v. Williams. Enlisted members convicted Appellant of one sexual assault for which he was sent to the Brig for three months and given a duck dinner. There are four AOEs and two Grosty’s. Issues 2 and 4 are the most interesting: admission of evidence from his prior court-martial acquittal (not that rare an issue) and a denial of due process when the prosecution changed its theory of guilt mid-trial (not that rare of an issue.
“The military judge’s ruling in this instance does give us pause, as it provides little indication of the careful and thorough Mil. R. Evid. 403 analysis required in analyzing evidence proffered for admission under Mil. R. Evid. 413, an analysis of a constitutional dimension. See James, 63 M.J. at 222; Wright, 53 M.J. at 483. Because the evidence the Government sought to admit resulted in acquittal, that fact required “great sensitivity” in determining whether the evidence should be allowed. See Griggs, 51 M.J. at 420. If the military judge did give this issue the required degree of consideration, such is not evident from his ruling, as the military judge provided only broad and conclusory statements, stating, for example, he was “satisfied that the strength of proof is sufficient on this evidence” without any further explanation. At least one of the military judge’s findings of fact—that AW was “extremely intoxicated”—was not just unsupported by the record, but at odds with the evidence presented, thereby amounting to clear error. We are also unclear how the military judge concluded a closet without a door in an on-base club where a party was underway amounted to “a private location.” As a result, we give the military judge’s conclusions of law minimal deference. See Berry, 61 M.J. at 96.
But the court found no judicial error in admitting the evidence.
2. Prior to trial, the Defense submitted a motion in limine asking the military judge to bar trial counsel from advancing any argument or theory that AM could not consent based upon either her being incapacitated due to her alcohol consumption or that she was asleep, unconscious, or otherwise unaware that she was participating in sexual conduct with Appellant. The military judge denied the motion, explaining the Government had to prove AM did not consent, and this would require “examination and consideration of all the facts and circumstances,” including AM’s level of intoxication, which the military judge concluded amounted to evidence of whether or not AM “effectively consented.”
For me, this case shows why Congress created more confusion by adopting four theories of criminality under Article 120; a situation needing only two—one of general application and one more specific to medical and mental health providers.
PENDING APPELLATE CASES
United States v. Injerd. The appellant was “convicted of desertion, resisting apprehension, assault of a superior noncommissioned officer, failure to obey an order or regulation, carrying a concealed weapon, assault upon law enforcement and two counts of disorderly conduct.” And he has been sentenced to 30 months confinement; and a duck dinner?
United States v. Juda. The appellant has plead guilty to use and distribution of LSD and his sentence included a Big Chicken Dinner.
WORTH THE READ
VanLandingham & Corn,What Happens when Service-Members, Past or Present, Breach their Sacred Oath? 18 March 2021, American Const. Society. Discusses Larabee and Begani.
LTC Daniel D. Maurer, Is Demilitarizing Military Justice an Ethical Imperative for Congress, the Courts, and the Commander-in-Chief? 49 HOFSTRA L. REV. x (2021).
This symposium introduction to ethics in military justice highlights that professional responsibility norms, expectations, and problems impact and imperial this discipline just as they do in any other criminal justice system. But in such a dizzyingly specialized criminal justice schema, the problems and perils of legal ethics and professional responsibility are both heightened and clouded by their seemingly difficult remoteness. Because the context of military justice implicates—to various degrees—national security, and not just individual cases and individual parties, special attention is owed in several critical areas. Political interference in military prosecutions has a long history, and it inevitably corrupts and taints individual cases, impairing public confidence in the judicial integrity of the court-martial. Moreover, this is a justice system that self-consciously celebrates the influential and central role of the commanding officer, creating an “operating environment [which] remains an orders-driven, hierarchical, and profoundly coercive special society.” It must, therefore, still contend with and actively combat the ever-present risk of “unlawful command influence” no matter how many other civilianizing characteristics military justice now enjoys, and regardless of whether that influence was direct or merely indirect, actual or only apparent, intentional or just inadvertent. Moreover, in a field as obscure as military law, public transparency of judicial and prosecutorial decision-making—especially in terms of sentencing—may outweigh the countervailing goal of shielding the “deliberative process” when both statutes and case law either already require it in civilian practice or encourage it. Some national security professionals, military justice practitioners among them, are “under pressure” to depart from professional norms and their professional obligations, and to dilute or change their advice to their (political) principals, or to advocate on the principal’s behalf thereby losing their highly valuable professional independence—they are “wedged between their principles and principals.”
The ABA has a note about the Bluebook.
U.S. Supreme Court Justice Clarence Thomas went rogue on the Bluebook when he embraced an appellate lawyer’s suggestion for dealing with “citation baggage” that comes with some quoted material.
Sexual Assault in the Military Subcommittee: SUBCOMMITTEE ON PERSONNEL
Date: Wednesday, March 24, 2021.
Agenda: To receive testimony on sexual assault in the military.
CAAFlog interns reviewed all CAAF opinions from the 2019-2020 term. Only four of twenty-five cases did not involve a conviction for a sex-related offense (including child pornography): Turner, Hennis, Easterly, & Muller. This is obviously not normal for a general criminal jurisdiction. The disparity raises a number of questions, and perhaps some of you have tentative answers.
1. Is this new?
2. What is the cause of this?
3. What is lost (or gained) by a court having "sex on the brain"? Is there is a risk that general doctrines, analyzed in light of sex crimes, will develop in an aberrant or skewed manner? Is there a risk that the reform movement will become singularly focused on sex crimes because these are the only cases reviewed by the highest military court?
"No. 20-0345/AR. U.S. v. Jacob L. Brubaker-Escobar. CCA 20190618. On further consideration of the briefs filed by the parties and oral argument, it is ordered that Appellant shall, within 14 days, file a supplemental brief addressing the following issue specified by the Court:
WHETHER SECTION 6(b) OF EXECUTIVE ORDER 13,825 OF MARCH 1, 2018 WAS A LAWFUL EXERCISE OF THE AUTHORITY DELEGATED TO THE PRESIDENT BY SECTION 5542(c)(1) OF THE NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2017 OR BY ANY OTHER LAW."
The relevant provision of the E.O. is this:
"(b) If the accused is found guilty of a specification alleging the commission of one or more offenses before January 1, 2019, Article 60 of the UCMJ, as in effect on the date of the earliest offense of which the accused was found guilty, shall apply to the convening authority, in addition to the suspending authority in Article 60a(c) as enacted by the MJA, to the extent that Article 60:
(1) requires action by the convening authority on the sentence;
(2) permits action by the convening authority on findings;
(3) authorizes the convening authority to modify the findings and sentence of a court-martial, dismiss any charge or specification by setting aside a finding of guilty thereto, or change a finding of guilty to a charge or specification to a finding of guilty to an offense that is a lesser included offense of the offense stated in the charge or specification;
(4) authorizes the convening authority to order a proceeding in revision or a rehearing; or
(5) authorizes the convening authority to approve, disapprove, commute, or suspend a sentence in whole or in part."
"No. 21-0052/NA. U.S. v. Virginia S. Moratalla. CCA 201900073. 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:
WHETHER THE APPELLANT'S GUILTY PLEA TO BANK FRAUD UNDER 18 U.S.C. §1344 WAS IMPROVIDENT.
Briefs will be filed under Rule 25.
No. 21-0130/AF. U.S. v. Clayton W. Turner. CCA 39706. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:
WHETHER THE LOWER COURT ERRED WHEN IT RULED THAT IT COULD NOT CONSIDER EVIDENCE OUTSIDE THE RECORD TO DETERMINE SENTENCE APPROPRIATENESS UNDER ARTICLE 66(c), UCMJ.
No briefs will be filed under Rule 25.
No. 21-0140/AR. U.S. v. Jonathan D. Davenport. CCA 20200190. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:
WHETHER THE CONVENING AUTHORITY'S FAILURE TO TAKE ACTION ON THE SENTENCE DEPRIVED THE ARMY COURT OF JURISDICTION UNDER ARTICLE 66, UCMJ.
No briefs will be filed under Rule 25."
TAKING CHARGE OF COURT MARTIAL CHARGES: THE IMPORTANT ROLE OF THE COMMANDER IN THE AMERICAN MILITARY JUSTICE SYSTEM
United States v. Simpson
In this guilty plea case, the military judge found Appellant guilty of one specification of conspiring to create and distribute an indecent visual recording, one specification of aiding and abetting the creation of an indecent visual recording, one specification of aiding and abetting the distribution of an indecent visual recording, and three specifications of assault consummated by a battery. The convening authority reduced the confinement of thirty-two months to eighteen (with the balance suspended due to the PTA.
On appeal, the CAAF answered whether it is legally impossible for an Appellant to be convicted of distributing indecent images to himself when the plain language of the code considers the distribution of “another[‘s]” images explicitly. Answering in the negative, the Court affirmed the holding of the NMCCA.
I. Legal Impossibility
While the Court will withhold acceptance of legal conclusions in a stipulation, it will, as it did here, accept the factual statements as true. Appellant, then, offers three arguments for why he cannot be guilty of distributing an indecent recording.
A. The Meaning of Distribute
First, Appellant argues that he could not have violated Article 120c(a)(3)’s prohibition on distributing an indecent recording because he was the recording's recipient. So it was delivered to him and not to “another” person. The Government argued that Appellant is guilty of the offense as an aider and abettor even though he did not “deliver” the recording. The court adopts the definition of distributing in Article 120c(d)(5) that “[d]istribute” means “delivering to the actual or constructive possession of another.”
Agreeing with the Government’s position, the Court found that the distribution element “is satisfied in this case because MB delivered the recording to a person other than herself, namely, to Appellant. And even though MB effected the delivery, Appellant can be guilty of this offense as a principal if he aided and abetted MB.” The Court reminds us that “A principal under an aiding and abetting theory is independently guilty of an offense even though he or she is not the actual perpetrator and did not personally commit all of the acts necessary for the offense.”
B. Congressional Intent
Second, Appellant contends that sustaining his guilty plea would produce a result that Congress never intended. Applying the reasoning of United States v. Hill, the Court concluded that “a person who aids and abets the distribution of an indecent recording can be liable as an aider and abettor if he sufficiently associates himself with the purpose of the actual distributor. In this case, as described above, Appellant did more than just receive an indecent image, he went further to “counsel and encourage MB to distribute the recording, and MB would not have distributed the recording without Appellant’s counseling and encouragement.”
C. MB’s Criminal Liability
Third, Appellant asserts “that he could not be guilty of aiding and abetting MB because MB is a civilian who is not subject to the UCMJ and who did not violate any state law by distributing the recording.” To this, the Government responds contending that such an argument falls outside the scope of the granted issue. The Court Agreed with the Government that the grant of review was limited and that the argument was outside the granted issue. Declining to decide the issue the Court relied on a footnote in United States v. Guardado, 77 M.J. 90 (C.A.A.F. 2017).
At bottom, finding no prejudicial error, the Court Affirmed Appellant’s conviction.
 In United States v. Hill, 25 M.J. 411 (C.M.A. 1988), the Court asserted that merely buying or possessing drugs generally could not be considered aiding and abetting the distribution of drugs without running afoul of Congress’s intent to make buying drugs a separate offense from distributing drugs. “Otherwise, prosecutors would be free to obliterate the distinction between possessors and distributors by charging any possessor with aiding and abetting the distribution of the drugs which he has received.”
by Farris Francis.
The Air Force Court of Criminal Appeals (AFCCA) affirmed the sentence of Appellant Gregory C.S. Merritt II. Appellate Military Judge Meginley dissented in a separate opinion. Appellant was charged with wrongful possession of child pornography in violation of Article 134 UCMJ and sentenced to dishonorable discharge, confinement for 30 months, forfeiture of all pay and allowances, and reduction to the grade of E-1. In accordance with a pretrial agreement (PTA) the convening authority disapproved the forfeitures but approved the remainder of the sentence.
Merritt Opinion Here
The agent's testimony, however, was based solely on the extrajudicial statements of the petitioner, and under the standard we have adopted these admissions must be corroborated by substantial independent evidence.
Smith v. United States, 348 U.S. 147, 157 (1954) (emphasis added).
The CAAF has granted Appellant Whiteeyes petition for review on the following issue.
WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL ERROR BY ADMITTING APPELLANT'S STATEMENTS TO LAW ENFORCEMENT IN VIOLATION OF MILITARY RULE OF EVIDENCE 304(c).
The ACCA decision is here. The appellant's Reply to the government's Answer to the opening brief is here, but neither the opening brief nor the Answer are on the ACCA site.
An enlisted panel found the appellant guilty of one specification of sexual abuse of a child but not guilty of one specification of raping a child and one specification of sexually abusing a child. On appeal to ACCA, the appellant raised several issues; among them a challenge to various pretrial admissions because there was insufficient independent evidence tending to establish the “trustworthiness of the admission or confession.”
must be proven by evidence outside of the confession of the defendant;" and that "whenever that state of case is established, then you may take the declarations of the defendant as tending to show his guilt."
Issacs v. United States, 159 U.S. 487, 490 (1895) (emphasis in the original). But what quantum of evidence does the Supreme Court require?
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