Up Periscope-8 January 2021

CAAF 
Here is a link to the CAAF annual report—1 October 2019 to 30 September 2020.
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NMCCA 

• United States v. Pullara. Along with sentence appropriateness the Appellant argues his sentence to be disparate compared to others—multiple uses and sales of LSD on base. The court determined that Appellant’s case was not sufficiently similar to others, citing United States v. Pena, No. 201700327, 2018 CCA LEXIS 279, at *5 (N-M. Ct. Crim. App. Jun. 5, 2018) (unpub.). 
• United States v. Wrape, Appellant plead guilty and his case was submitted “without assignment of error.”  Appellant plead guilty to an Article 134 offense in the “conjunctive” to GoD and SD. The court finds no substantial basis in fact to support the GoD. The Court excepts that language, reassesses the sentence and affirms the sentence. This is not an uncommon issue with proving or pleading guilty to a GoD element. The Appellant here had distributed CP. Yet, it appears there was no evidence on how that impacted GoD. 

AFCCA
United States v. Carter. Appellant was convicted of various drug offenses. The court agreed with Appellant that the military judge should have merged several specifications for sentencing, but not his claim regarding denial of his post-trial request on forfeitures or post-trial processing delay. They reassessed the sentence and approved the adjudged sentence of 10 months, BCD, TF, and RIR2E1.

United States v. Mitchell. On appeal Appellant claimed post-trial delay credit, that his trial defense counsel were ineffective in two respects, and the sentence was inappropriate. ADC provided an affidavit explaining the difficulties (which we all have from time to time) of negotiating a "reasonable" stipulation. The ADC balanced the ability to get sentence limits against having uncharged misconduct in the stipulation--they kept Appellant informed throughout, he reviewed the stipulation, had no objection; and he signed it. Findings and sentence affirmed.

IN THE NEWS--PENDING OR POTENTIAL APPELLATE CASES
Task & Purpose reports that Chief DeD. will plead guilty to various charges. Several others involved in the case have already pleaded guilty and at least one will be eligible for an Article 66, UCMJ, review. DeD and several special operators allegedly broke into the bedroom of Army Staff Sgt. LM on June 4, 2017, in Bamako, Mali and restrained him with duct tape. M later died of asphyxiation. Prosecutors alleged DeD strangled him with a chokehold and later lied to Army and Navy investigators about what transpired.

Air Force Times reports, that the commander of the 316th MSS, Andrews, will face court-martial in March for sexual assault. Note, the offense happened in 2019 and the investigation began quite quickly. Other reporting suggests there are three specifications involving rape and sexual assault.

​​The NDAA veto having been overridden, look for changes to Articles 6b, 66, 67, 140a.

Review amendments.--The amendments made by subsections (b) and (c) shall take effect on the date of the enactment of this Act, and shall apply with respect to any case in which every finding of guilty entered into the record under section 860c of title 10, United States Code (article 60c of the Uniform Code of Military Justice), is for an offense that occurred on or after that date.

• Standby for “bridge” cases in the same or similar way we have seen bridge cases cause difficulties with instructions for Article 120 cases and post-trial?
• Section 549C also SecDef is required to evaluate several recommendations to deal with domestic violence. Two points seem relevant to practitioners.
• ​(9) The potential effects of requiring military protective orders to be issued by a military judge, including whether such a requirement would increase the enforcement of military protective orders by civilian law enforcement agencies outside the boundaries of military installations.
• (10) Whether prevention of domestic violence would be enhanced by raising the disposition authority for offenses of domestic violence to an officer who is--
  • (A) in grade 0-6 or above; and
  • (B) in the chain of command of the accused; and
  • (C) authorized to convene special courts martial.

WORTH THE READ
Courts-martial of retirees is a current topic. So, what do we think of The Matter of Michael Flynn? Steve Levin discusses that in JDSupra.

The Air Force will now track more details of administrative discipline actions. "Lesser disciplinary actions are defined as an adverse administrative discipline, to include administrative counseling, admonishments and reprimands. Data demographics that will be tracked are rank, age, gender, race and ethnicity of Airmen and Guardians who issue and receive the discipline."

​Orin S. Kerr, The Fourth Amendment Limits of Internet Content Preservation. Kerr argues that the current process of law enforcement sending a preservation notice without probable cause is a violation of the Fourth Amendment.

• Every year, hundreds of thousands of Internet accounts are copied and set aside by Internet providers on behalf of federal and state law enforcement. This process, known as preservation, is permitted without particularized suspicion. Any government agent can request preservation of any account at any time. Federal law requires the provider to set aside a copy of the account just in case the government later develops probable cause and returns with a warrant needed to compel the account’s disclosure. The preservation process is largely secret. With rare exceptions, the account owner will never know the preservation occurred.
  
• This Article argues that the Fourth Amendment imposes significant limits on the preservation of Internet account contents. Preservation triggers a Fourth Amendment seizure because the provider, acting as the government’s agent, takes away the account holder’s control of the account. To be constitutionally reasonable, the initial act of preservation must ordinarily be justified by probable cause – and at the very least, in uncommon cases, by reasonable suspicion. The government can continue to use the Internet preservation statute in a limited way, such as to freeze an account while investigators draft a proper warrant application. But the current practice, in which investigators can order the preservation of accounts with no particularized suspicion, violates the Fourth Amendment.

Compare with CPT E. B. Murphy, Using RCM 703A to Build a Better Case. ARMY LAWYER, No. 4, 2020.

​Andrea Nishi, Ortiz and the Problem of Interbranch Litigation. 120 COLUMBIA L. REV. 118 (2020).

• In September 2017, the Supreme Court granted certiorari in Ortiz v. United States, a case challenging the appointment of a military judge. The case, which had come to the Court on appeal from the Court of Appeals for the Armed Forces (CAAF), was quickly complicated by an amicus brief arguing that the Court lacked jurisdiction to hear the appeal. In his brief, Professor Aditya Bamzai argued that, because the Court’s appellate jurisdiction extends only to appeals of existing cases, the Court had no authority to hear a direct appeal from the CAAF, an Article I court located in the executive branch. The Court ultimately determined that appeals from the CAAF are within its jurisdiction, but the Justices allotted time for Bamzai to present at oral argument and devoted nine pages to the jurisdictional question in their majority opinion. As Justice Kagan remarked when announcing the decision, Bamzai’s arguments “provoked some good and hard thinking on all sides.”
  
• This good, hard thinking about the Court’s appellate jurisdiction raises another fundamental question, albeit not one directly at issue in Ortiz: Does a government appeal from the CAAF represent a justiciable case or controversy under Article III of the Constitution?

Notice, US pardons for Blackwater guards an “affront to justice” – UN experts. United Nations Office of Human Rights. 1 January 2021. Note, there is intersection here with military justice when the pardon relates to alleged "war crimes." Under international law there is a principal of command responsibility for the actions of their troops and under what circumstances can the commander be also held accountable for the acts of those troops. The same can apply to political leaders, although the answer to the question is not always clear. And certainly, there doesn't seem to be a clear answer as to clemency actions after a conviction. One of the ways a country or leaders can avoid responsibility is to have an effective system of justice to hold offenders accountable. This is a simplistic explanation and I'll leave you to read more on it.
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​APPELLATE ADVOCACY
Stephanie R. Williams, More Support for Oxford, or Serial, Commas. Appellate Advocacy Blog, 2 January 2021.

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