UP PERISCOPE

 Dateline: 4 December 2020; a summary of the week. 
SUPREME COURT 

• The time to file a reply to the petition in Bess has been extended until 16 December 2020. 

AFCCA 

• United States v. (not Goya) Toledo. After AFCCA set aside some findings and the sentence in the appellant’s first look a rehearing on sentence was held—MJA. On resentencing the “significant” change was confinement for one year and 11 months vice the original two years. The Appellant raised two Grosty issues for the second look: error in telling the resentencing judge what the prior sentence was and severity of the sentence. o AFCCA’s first (publicly available) opinion was made an appellate exhibit. 
  •  Neither party had voir dire of challenge for the military judge. 
  •  The parties discussed sentence credit. 
  •  Legally, the judge from the first trial could have been the resentencing judge. 
  •  Appellant opined that “the military judge was inappropriately notified of [Appellant]’s initial sentence when the government introduced this Court’s decision (which discussed the first adjudged sentence) as an appellate exhibit. The military judge then formulated the new sentence to align with the previous one, shaving a month’s confinement to reflect the dismissed charge. This situation not only calls into question the fairness of [Appellant]’s rehearing, it challenges the perception of fairness in the military justice system.” 
  •  The court declined to accept Appellant’s assumptions, and, relying on United States v. Villa, 42 C.M.R. 166, 169 (C.M.A. 1970), declines to find error. 
  • Despite being retirement eligible (22+ years and an otherwise really good record), the court found the sentence appropriate for “attempted enticement of a person to engage in sexual acts with him in exchange for money, attempted receipt of child pornography, attempted production of child pornography[.]” I don’t think it helped that “Appellant’s counsel also argued for the military judge to sentence Appellant to a bad-conduct discharge, informing the military judge that Appellant “is willing to forfeit his military retirement by accepting a Bad Conduct Discharge.”” The court also “consider[ed] that trial defense counsel argued for Appellant to be confined for 686 days—less than one-month difference from the confinement that was adjudged.” 
  •  The court rejected a comparative sentence argument. Seemingly this is a he-got-what-he-asked-for case. 
• United States v. (not Tina) Turner. An apparent DV case.
  • The Defense’s theory was that X had instigated the fight, Appellant was defending both himself and Y, and X had exaggerated Appellant’s role in the fight based upon a motive to gain leverage in their divorce and child custody proceedings. Trial defense counsel sought to impugn X testimony by arguing her injuries were inconsistent with her testimony that Appellant brutally attacked her and were, instead, more consistent with Appellant restraining her in self-defense. 
  • Appellant was sentenced to eight-months, BCD, RIR2E-1, for five specifications of assault and battery. The court set-aside the finding as to one specification, reassessed the sentence, and affirmed the sentence. 
  • The court found no merit to Appellant’s three Grosty claims one of which asserted trial counsel’s erroneous argument “that trial counsel’s findings argument improperly appealed to the military judge’s “common sense” and “knowledge of the ways of the world.” 
• United States v. (not Richard) Gere.
  • Having been convicted and sentenced “for one specification of attempted sexual assault of a child, one specification of sexual abuse of a child, and one specification of sexual assault of a child,” Appellant raised five issues one of which is of continuing concern—did the military judge err in failing to order production of the victim’s cellphone for forensic analysis.
  • Cellphone “evidence” is common these days. During investigation, the MCIO gets cherry-picked texts, emails, photos, and social media contacts from the complaining witness but does not obtain a full examination. The defense then wants to know about all the other related parts of the cherry-picked evidence, to which the CW and prosecution object. And the CW testifies about all the unavailable media. 
  • The court determined that on the facts the military judge did not err. 

NMCCA 

• United States v. (not simple) Simon. 
  • Convicted of assault and battery and unlawful entry, Appellant claimed error with the admission of a money payment to the victim and factual insufficiency. 
  • This is a Mil. R. Evid. 408 issue and the difference between legitimate settlements and “buying off” a witness or victim. 
  • (My one experience with this rule was here in VA where the settlement happened in the Commonwealth prosecution—an accord and satisfaction. The court-martial dispute arose over a normal term in that agreement that forbids the complainant from further participating in any criminal or civil case.) 
• United States v. Halfacre. An aggravation evidence on sentencing case. 

In the News—pending appellate cases. 

• The Conference Report for the proposed William M. (Mac) Thornberry National Defense Authorization Act for FY 2021 is here. o Sec 542 requires appellate judges have at least 12 years of law practice but does not impose a term of office. There are no similar requirements for military trial judges. 
  • Some changes to factual sufficiency at the CCA are in there.
    • ​​The appellant must make a specific showing of deficiencies in the proof. 
    • The CCA panel may set aside a finding if it is “clearly convinced that the finding was against the weight of the evidence.”
      • The House wants CCA en banc review of a panel’s set aside and similarly must find they are “clearly convinced that the finding was against the weight of the evidence.” 
      • The Senate wants to remove the en banc requirement and authorize CAAF to review the set aside.
• Not military justice but might be if a Reservist refused orders. McClatchy tells us. 

       Should a federal law that protects National Guard members and reservists from being fired from their private sector jobs while they are deployed also apply to state government jobs? Last week, the U.S. Supreme Court hinted it might weigh in on the issue.
        The U.S. Supreme Court last Tuesday requested additional information from the Texas attorney general’s office on why the state should not be held accountable to the 1994 Uniformed Services Employment and Reemployment Rights Act (USERRA) which prohibits employers from retaliating against or firing National Guard members and reservists who are pulled from their full-time jobs to go on active duty. Worth the Read. 

• Davis, et. al., Interrogation and the Sexual Assault Suspect: On the Synergy between Pretext Caller and Police Interrogator, coming soon from the S. F. L. REV. 

      “This chapter reviews the attempts of police to elicit confessions to child and adult sexual assault through standard police interrogation and through use of alleged victims or associates of alleged victim as surrogate interrogators. Specifically, we describe the use of “pretext calls” (otherwise known as “cold,” “controlled,” “one party consent,” or “confrontational” calls) made by victims or their associates at the behest of police. We describe commonalities and differences in the strategies employed by police interrogators and pretext callers, and the synergy between them. We further address reactions of suspects to each, as well as reactions of observers to admissions made in each context.” 
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Phil Cave

Military Justice Editor