The AFCCA affirmed the findings and sentence of Senior Airman Troy A. Nolen, after finding actual UCI, but prejudice in Appellant's UCI issue. The court also considered two other issues not raised by Appellant.
Nolen opinion here.
"No. 20-0339/AR. U.S. v. Michael R. Motteler, Jr. CCA 20180512. 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, and the decision of the United States Army Court of Criminal Appeals is affirmed.*
* It is directed that the promulgating order be corrected by changing the finding to Specification 3 of the Charge from "Guilty" to "Not Guilty.""
CAAF granted to fix this typo, but not to address a rather interesting issue of statutory interpretation. Does the "intent" mens rea in the below offense apply only to the act element of exposure, or also to the act element of "indecent manner":
“Any person subject to [the UCMJ] who intentionally exposes, in an indecent manner, the genitalia . . . is guilty of indecent exposure . . . .” UCMJ art. 120c(c).
"Indecent manner" is defined as "conduct that amounts to a form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations.” UCMJ art. 120c(d)(6). This might have been construed to contain an implicit mens rea--after all, these loaded terms may carry some notion of intentionality--but the lower court instead effectively held that this was a strict liability element. The definition of indecent manner seems hopelessly vague, with an unclear mens rea. This could have been an opportunity for CAAF to clarify it. Maybe counsel did not raise this issue?
Appellant was found guilty of multiple drug crimes and was sentenced to a bad-conduct discharge, confinement for ten months, forfeiture of all pay and allowances, and reduction to the grade of E-1. On appeal, he noted “potential” post-trial errors, but did not specify what those were. Under Article 66, UCMJ review, the AFCCA identified three issues. (1) Whether the signed State of Trial Results (“STR”) and EoJ must be modified when the pleas and findings to both charges I and II were omitted; (2) whether prejudicial error exists when there is no documentation in the record of trial that the convening authority considered Appellant’s clemency matters; and (3) whether the record of trial is defective when the audio recordings of the court-martial sessions contain five additional audio files that are recordings of conversations in the courtroom when the court-martial was not in session.
In a Per Curiam opinion, the Court found that (1) the STR and EoJ did not need to be modified; (2) there was no prejudice to Appellant regarding clemency; and (3) the audio recordings made the record of trial defective and returned it for a certificate of correction.
1.The omissions on the STR and EoJ were immaterial
Appellant’s STR and EoJ failed to reflect his pleas and findings for Charge I and II. Since the Appellant pled guilty to both charges, this was a clear error. However, the Court found that omitting the pleas and findings was immaterial to determining Appellant’s criminality as long as they were accurate. Although the Court noted that these documents should be carefully prepared, omitting this information was not an issue.
Further, the AFCCA indicated that R.C.M 1111(c)(2) permits The Judge Advocate General (“TJAG”) and the court itself to correct minor errors on an EoJ when they are discovered on appeal. And after considering whether to fix the EoJ, the Court declined to do so.
2. Appellant was not prejudiced by the convening authority’s review of the clemency letters
After being sentenced, Appellant submitted undated clemency letters, which requested that the convening authority disapprove of the adjudged forfeitures. However, when the convening authority issued its decision, it did not indicate that it reviewed the letters and did not disapprove of the forfeiture.
In its analysis, the AFCCA emphasized that the letters were undated, so it was unclear whether they were received within the ten day time period provided by R.C.M. 1106(d)(1). Nevertheless, the Court reviewed whether the record of trial must show that the letters were considered.
The Court decided that (1) although the convening authority normally documents whether clemency matters were considered, it is not required; and (2) Appellant had the opportunity to file a post-trial motion about the clemency matters, but did not. Accordingly, the Court then had to determine whether he waived or forfeited the issue.
Using their authority under Article 66, UCMJ, the Court decided that forfeiture was the appropriate standard, and conducted a plain error analysis.Ultimately, it found that (1) even if the error were plain or obvious, he has not shown prejudice; and (2) his brief specifically stated that he suffered no prejudice from a post-trial processing error.
3. The audio recordings made the trial record defective
The certified record of trial included five additional recordings that were conversation in the courtroom while the court was not in session. Further, it sounded like the audio was from people who were unaware that they were being recorded. As a result, the Court found that it was an error to include these recordings on the disc placed in the original record of trial and ordered for it to be corrected.
The opinion was issued by Judges Mink, Lewis and D. Johnson.
However, the convening authority did reduce Appellant’s confinement by one month.
Appellant must show (1) there was an error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substantial right.
ACCA affirmed the findings and sentence of Sgt Clovis H. Castro, finding his plea substantial in both law and fact.
Castro opinion here.
Filed in the case of United States v. Snyder.
Here is the argument for a five-judge court.
From a Reuters Special Report released today:
"Gary Jackson, who was discharged from the Marine Corps nearly three decades ago, is trying to sue the Navy, alleging discrimination that ultimately cut short his career. He said a supervisor transferred him at a Marine base in Arlington, Virginia, and then said, “That’s one less Black Staff Sergeant,” according to a written statement by a witness submitted in the case.
If Jackson prevailed, troops could seek legal recourse under Civil Rights Act protections against workplace discrimination. But legal experts are unsure whether the Supreme Court will agree later this year to take up the issue, seeing the case as a longshot after lower courts ruled against him.
In an amicus brief in support of Jackson’s motion, Protect Our Defenders and another advocacy group, the Black Veterans Project, called the EO process a “woefully inadequate system for addressing racial bias or discrimination.”"
ACCA, in an unanimous decision affirmed Private Jesse L. Pimental-Torres' findings of guilt and affirmed only so much of his sentence as provides for a dishonorable discharge, confinement for eight months, reduction to E-1, and total forfeiture of all pay and allowances.
Dateline: 11 September 2020 (as of 0900).
Reminder, CAAF is back to in-person oral argument. The Navy and Army have been back to in-person arguments since August.
"No. 36803. In the matter of Cullen Drew Elrod. It appearing that the above-named attorney is a member of the Bar of this Court and that they have been indefinitely suspended by the Judge Advocate General of the Army from the practice of law in Army courts-martial and the U. S. Army Court of Criminal Appeals, and considering Rule 15(b), Rules of Practice and Procedure, U.S. Court of Appeals for the Armed Forces, it is ordered that Cullen D. Elrod is disbarred from the practice of law before this Court effective the date of this Order."
Next Friday the DC Circuit will hear argument in a case stemming from the military commissions, but which has broader applicability to any case involving classified information. A commissions defense attorney (Phil Sundel) was denied access to a closed hearing in a GTMO commission case despite possessing a TS/SCI clearance (he was not representing the accused in the specific proceeding). He is now before the DC Circuit on the collateral order doctrine asserting a First Amendment right to view the proceedings as a member of the public. Here are the brief and response, and a more recent order from the court indicating that it is concerned with standing and jurisdiction.
The NMCCA, finding no prejudicial error, affirmed the findings and sentence of Sgt Matthew W. Faus.
The below Petition was filed Friday.
CAAF will resume in-person arguments this fall. This is great news: a courtroom setting is easily compliant with social distancing, and these are criminal cases where an accused deserves to have a fair day in court.
On August 12, 2020, ACCA set aside the conviction and sentence of Sergeant First Class Corey L. Bruner (Appellant). Opinion here.
Bergdahl today filed the below Petition for Reconsideration. The defense team appears to have added eminent scholar/litigator Steve Vladeck, as well as the senior leadership of the Army's appellate defense shop.
The chorus of critics of the decision grows larger, with former SECDEF Hagel weighing in over the weekend. I am not aware of any reasoned defenses of the opinion or the outcome. Would anyone like to make the case?
Dateline: 4 September 2020 (as of 0900).
02092020—the court decided (4-1) United States v. Watkins. The court granted review on three issues and found a denial of a right to counsel of choice. The NMCCA decision is here [https://www.jag.navy.mil/courts/documents/archive/2019/WATKINS_201700246_UNPUB.pdf].
On August 4, 2020, ACCA set aside findings of guilt for some specifications, and affirmed findings of guilt as to the rest, against Sergeant First Class Jeremy S. Nix (Appellant). Opinion here.
The ACCA provides a formulaic, but clear description, of a multiplicity analysis under a guilty plea or plain error: the facially duplicative standard.
CAAF, in a 4-1 decision with Judge Maggs dissenting, reversed the NMCCA and set aside SSgt Watkins' findings and sentence without prejudice.
Watkins' opinion here.
The NMCCCA decided In re Jordan, M.J. , 2020 WL 5047423 (NMCCA 2020)(En Banc), on 27 August 2020. At first blush, the decision seems innocuous enough–another sex offender seeking redress because of an alleged victim “recantation.” This essay does not address the factual issues of guilt or innocence. Rather, it addresses the subtle, death-knell of military habeas corpus or alternatively, the unconstitutionality of Article 76, UCMJ.
The NMCCA, finding no prejudicial error in Sgt Maurice J. Lewis' assignments of error, affirmed his findings and sentence. Opinion here.
Those who saw this may have wondered what it was about: "No. 20-0352/AF. John R. Demos, Appellant v. United States, Appellee. CCA 2020-03. On consideration of the writ-appeal petition it is ordered that the writ-appeal petition is dismissed for lack of jurisdiction, and that further filings submitted to this Court will be returned without any action by this Court."
Our reliable research staff has tracked down Mr. Demos's internet trail of frivolous filings in courts across the country. Here is just one, from the District of the Virgin Islands, which gives us a sense of the type of claim CAAF may have had to deal with. Demos is a state prisoner in Washington, and claims that his incarceration violates the Geneva Convention due to his allegiance to "the Vatican, and the Rothschild family of France."
Since this is "CAAFlog" and not "Bergdahl-log" we won't be saying much more about last week's decision. Two remaining items are worth mentioning:
1. The following statement by Bergdahl's trial prosecutor has been making the rounds.
2. It seems that the readers generally disagree with me and with the dissenters regarding the decision. Here are the results of our anonymous, non-scientific poll (in which the system does not prevent multiple voting, etc.). As with alcohol, "tolerance" of command influence differs from person to person:
The AFCCA affirmed the findings and sentence of Airman First Class Dillon R. Wiseman, holding that he warranted no relief for his four assignments of error. Opinion here.