This is the CGCCA's first decision of the year and Leal's second appearance before the court. (In 2020 the court issued six opinions of which four are published. Keep in mind that the CG is a smaller and more disciplined force.)
In 2016, a special court-martial (Leal I) convicted Appellant, contrary to his pleas, of a single specification of abusive sexual contact[.] It adjudged, and the Convening Authority approved, a sentence of reduction to E-1, confinement for thirty days, and a bad-conduct discharge. On appeal, we concluded the specification failed to state an offense and set aside the conviction, dismissed the charge and specification, and authorized a “new trial . . . upon a different specification.” United States v. Leal, 76 M.J. 862, 863 (C.G. Ct. Crim. App. 2017).
Leal raised three issues on appeal; two connected to the jury deliberations and one of post-trial delay.
Although the sentence in Leal II falls short of the jurisdictional minimum of Article 66(b), UCMJ, both parties assert that the doctrine of continuing jurisdiction applies—that jurisdiction over Leal I, with its jurisdictional sentence, extends to Leal II. We ultimately agree, but though the doctrine of continuing jurisdiction is generally well-established, there is scant precedent applying it to the procedural setting of this case: fresh charges referred to a court-martial after an appellate court dismissed the original ones.
The court distinguishes Leal from the common case where there is a rehearing on the original charges. In discussing R.C.M. 810(e), the court concludes that it is dealing with "an "other" trial" as defined so has jurisdiction in these unusual circumstances. The court does so by reference to Article 63, UCMJ, explicitly finding that the statute establishes appellate jurisdiction not the President through the MCM. The court also adopts reasoning from the NMCCA in United States v. Lee, 72 M.J. 581 (N-M Ct. Crim. App. 2013) (certificate for review withdrawn, 70 M.J. 351 (C.A.A.F. 2011).
The UCMJ "debates" is scant but implies the court may be right on what Article 63 means. See Discussion Larkin-Brooks-Graffenfried interchange. HH at 1180 The main concern at the time of the hearings was that new statute was perceived to allow an "acquittal" to be retried.
On the members issue developed, but not enough, in a post-trial hearing ordered by the convening authority;
Following trial, the junior member of the panel, Chief Petty Officer (“Chief”) H, told a Coast Guard attorney that the senior member and president of the panel, Captain (CAPT) B, had expressed “enthusiasm and strong positions” during deliberations. (Appellate Ex. 101 at 12.)
Among the errors noted in addition to the questioning was the failure of the military judge to, on the record, determine if the defense had presented sufficient evidence to shift the burden to the government on the UCI issue, as required by United States v. Biagase, 50 M.J. 143 (C.A.A.F. 1999). The court finds there was just enough. This of course becomes important as to the analysis and who wins on the issue.
[W]e conclude that the military judge erred in three respects. First, although she correctly articulated the Biagase standard, she failed to address—either during the hearing or in her ruling—whether the Defense met its initial burden, thus shifting it to the Government. Here, as in Harvey, “the failure of the military judge to allocate the burden between the parties resulted in an inadequate factual basis as to the exact nature and extent of any unlawful command influence that might have been created with regard to [the members].” Harvey, 64 M.J. at 21. Further, even given the scant factual record, we believe that Chief H’s testimony satisfied the low threshold of “some evidence” that rank played an impermissible role during deliberations.
And, the military judge,
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