Dateline: 25 September 2020 (as of 0900).
No. 20-0252/AF. U.S. v. Rodney M. Tyler. CCA 39572.
WHETHER THE MILITARY JUDGE ERRED WHEN HE PERMITTED TRIAL COUNSEL TO ARGUE FACTS NOT IN EVIDENCE; NAMELY, THE UNSWORN VICTIM IMPACT STATEMENTS WHICH WERE NOT ADMITTED AS EVIDENCE UNDER RULE FOR COURTS-MARTIAL 1001(b)(4).
No. 20-0340/AF. U.S. v. Eric R. Proctor. CCA S32554.
AT AN ALL-CALL PRIOR TO APPELLANT'S COURT-MARTIAL, APPELLANT'S SQUADRON COMMANDER SOUGHT TO ADDRESS HIS "NCO PROBLEM" BY HIGHLIGHTING THE NEGATIVE CAREER IMPACTS SOMEONE COULD SUFFER IF THEY PROVIDED A CHARACTER LETTER FOR AN ACCUSED AIRMAN. DID THE AIR FORCE COURT ERR WHEN IT FOUND, BEYOND A REASONABLE DOUBT, THAT THIS UNLAWFUL COMMAND INFLUENCE DID NOT PLACE AN INTOLERABLE STRAIN ON THE PUBLIC'S PERCEPTION OF THE MILITARY JUSTICE SYSTEM?
“Appellant raises five issues on appeal: (1) whether the military judge abused his discretion by considering evidence of an uncharged, and unrelated, intentional abuse when he deliberated on Appellant’s sentence; (2) whether the trial counsel’s sentencing argument was improper; (3) whether Appellant’s sentence is inappropriately severe in light of adjudged and approved sentences for similar misconduct; (4) whether Appellant is entitled to meaningful sentence relief due to the conditions of his post-trial confinement; and (5) whether Appellant is entitled to relief for facially unreasonable appellate delay.2 With respect to issues (2), (3), and (4), we have carefully considered Appellant’s contentions and find they do not require further discussion or warrant relief. See United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987). We find no error that materially prejudiced Appellant’s substantial rights, and we affirm the findings and sentence.”
The military judge gave a lengthy explanation why he considered the evidence argued under AOE (1). Slip op. at 4. The court invokes Hardison , Nourse, and Terlep.
“[O]fficer members convicted Appellant, contrary to his pleas, of two specifications of attempted sexual abuse of a child on divers occasions.”
“Appellant raises six issues4 on appeal: (1) whether the sentence of a dishonorable discharge is inappropriately severe; (2) whether the military judge erred in admitting Appellant’s confession that was obtained without a proper rights advisement; (3) whether Appellant is entitled to sentence-appropriateness relief due to post-trial delay; (4) whether Appellant is entitled to new posttrial processing because the Government failed to properly serve him with a copy of the record of trial; (5) whether the military judge committed plain error by failing sua sponte to provide an instruction on the defense of entrapment; and (6) whether the military judge erred in denying the defense motion to compel production of a forensic psychologist.5 With respect to issues (5) and (6), we have carefully considered Appellant’s contentions and find they do not require further discussion or warrant relief. See United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987). We find no prejudicial error and affirm the findings and sentence.”
“Appellant personally raises a single issue pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).4 He asserts the military judge erred when he did not sua sponte exclude persons from the courtroom and requests the bad-conduct discharge be set aside. Finding no error materially prejudicial to a substantial right of Appellant, we affirm the findings and sentence.”
The facts at least seem interesting—and perhaps common in drug cases.
“Appellant argues the military judge committed plain error by not excluding persons from the trial, thereby affecting Appellant’s right to a fair, full, and complete trial. Appellant contends that the military judge was made aware that there were military members who were actively trying to find out the identity of the person informing on them by observing courts-martial proceedings, and that the military judge had an obligation to exclude such persons from the courtroom.”
So, not a legal error. But one wonders whether this should have been a concern addressed by trial counsel—safety of the accused and reliability of additional (perhaps ongoing) investigations?
“Appellant claims that his due process rights were violated when his case was not docketed with this court within 30 days of the convening authority’s action as required by United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006). Finding no error that resulted in material prejudice to Appellant’s substantial rights, we affirm the findings and sentence.”
The court reviews the case considering the new post-trial rules for events at the trial stage.
“Appellant raises two issues on appeal: (1) whether the evidence is legally and factually sufficient to support his convictions; and (2) whether the military judge erred by precluding cross-examination regarding the complainant’s prior allegation of sexual harassment. We find no error materially prejudicial to Appellant’s substantial rights, and we affirm the findings and sentence.”
On appeal, Appellant asserts that:
(1) He was deprived of due process because he was charged with violating Article 120, UCMJ, under a bodily harm theory, but prosecuted and convicted under the theory that the putative victim was incapable of consenting due to alcohol impairment;
(2) Appellant was deprived of effective assistance of counsel when his trial defense counsel failed to obtain expert assistance;
(3) The military judge abused her discretion by excluding evidence under Military Rule of Evidence (M.R.E.) 412, Manual for Courts-Martial (MCM), United States (2016 ed.);
(4) Appellant’s conviction under Article 120, UCMJ, is factually and legally insufficient; and
(5) The marital relationship between the original staff judge advocate and the chief of military justice created an appearance of unlawful command influence. We disagree and affirm.
Judge recusal is in the news (ACCA cases, Bergdahl) and here the court footnoted this,
“We conclude that Appellant has not met his initial burden to show that “an objective, disinterested observer, fully informed of all the facts and circumstances, would harbor a significant doubt about the fairness of the proceeding.” United States v. Boyce, 76 M.J. 242, 249 (C.A.A.F. 2017) (citation omitted) (internal quotation marks omitted). See also United States v. Washington, 80 M.J. 106, 112–13 (C.A.A.F. 2020); United States v. Biagase, 50 M.J. 143, 150 (C.A.A.F. 1999). We therefore reject this assignment of error.”
Appellant was convicted, contrary to his pleas, of dereliction of duty, two specifications of sexual assault, and one specification of indecent viewing, in violation of Articles 92, for willfully failing to perform his duties as a gate sentry onboard Camp Pendleton, for touching the breast of the victim, Ms. XXX, by causing bodily harm and by placing her in fear of being fined $1,000, and for indecently viewing Ms. XXX’s breasts as she attempted to come onboard Camp Pendleton.
Appellant asserts three assignments of error [AOEs], renumbered as
follows: (1) the military judge abandoned his role as an impartial participant
in the court-martial by assisting the Government in establishing proof of an
element of an offense; (2) the evidence is legally and factually insufficient to
sustain Appellant’s conviction under Article 120c, UCMJ; and (3) the results
of trial are inaccurate in characterizing Appellant’s conviction for Article
120c, UCMJ, as a sexual assault. We find no prejudicial error and affirm the
findings and sentence. However, we order correction of the results of trial in
our decretal paragraph.
“Appellant initially submitted his case to the Court on its merits, without specific assignment of error. Upon review of the record of trial, we specified three issues for briefing by appellate counsel:
(1) Was Appellant already in “custody” when the civilian provost marshal officer
Attempted to “apprehend” him;
(2) If Appellant was already in “custody,” is it legally possible for him to “resist apprehension” within the meaning of Article 95, UCMJ; and,
(3) If Appellant was already in “custody,” is there a substantial basis in law or fact to question Appellant’s guilty plea to resisting apprehension from the civilian provost
After carefully considering the record and the parties’ briefs, we hold that it is legally impossible to resist apprehension within the meaning of Article 95, UCMJ, where the accused was already in custody at the time of the alleged resistance. Custody constitutes a defense to the crime of resisting apprehension.
The improvident plea specification was set aside and dismissed, and the other findings affirmed, and the sentence affirmed.
Appellant was convicted, contrary to his pleas, of one specification each of arson, housebreaking, and unlawful entry under Articles 126, 130, and 134, respectively, of the Uniform Code of Military Justice [UCMJ].
Appellant raises four assignments of error [AOEs]: (1) the military judge abused his discretion by finding Appellant was not a suspect when he was initially questioned by agents of the Naval Criminal Investigative Service [NCIS]; (2) Appellant’s trial defense counsel [TDC] were ineffective by failing to move to suppress derivative evidence of an unlawful apprehension; (3) Appellant’s TDC were ineffective by not learning of and moving to suppress Appellant’s custodial statements; and (4) the evidence is legally
and factually insufficient.
We find no prejudicial error and affirm.
Note, issue (3) “because they failed to investigate the extent of un-warned statements Appellant made during the car ride to the NCIS office and then also failed to move to suppress the subsequent interrogation[.]” I may have missed it, but I see no reference to Mil. R. Evid. 304(d)—a broad mandate for trial counsel to disclose such statements. The opinion of course cuts to the chase—that even if there was a failure it did not matter.
U.S. Court of Appeals for the Second Circuit.
“Defendant-Appellant William Mingo appeals his July 25th, 2018, judgment of conviction in the United States District Court for the Southern District of New York (Alvin K. Hellerstein, Judge) for failure to register under the Sex Offender Registration and Notification Act ("SORNA") 18 U.S.C. § 2250; 34 U.S.C. § 20911 et seq. On appeal, Mingo argues that his motion to dismiss the indictment should have been granted because (1) SORNA violates the constitutional non-delegation doctrine by authorizing the Secretary of Defense to designate which military offenses constitute "sex offenses" under the statute; and (2) the Secretary's designation of sex offenses under SORNA violated the Administrative Procedure Act. For substantially the same reasons clearly enunciated by the district court, we disagree[.]” He served about 36 months and has five years supervised release.
In the News—pending appellate cases.
“Pemberton will not be tried a second time since he already served the court-imposed penalty for his actions prior to his pardon, Major Melanie Salinas of the US Marine Corps’ Communication Directorate told online news service BenarNews. “Consistent with the due process traditions shared by the United States and the Philippines and the running of the Statute of Limitations, the Marine Corps will not try Lance Cpl. Pemberton a second time for the same crime. He will be processed for administrative discharge[.]”
Worth the Read.
· Lisa Steele, Investigating and Presenting an Investigative Omission Defense. 57 CRIM. L. BULL. (2021) (Forthcoming).
“This paper explores defense challenges to the adequacy of police investigations, and investigative lapses as a cause for reasonable doubt. It focuses on case law from Massachusetts, which has four decades of state appellate case law about investigative omission evidence and jury instructions. It talks about the constitutional nature of the defense, how it differs from third-party culprit defenses, and evidence issues that may arise.
The paper also discusses cognitive biases that can affect even well-trained, experienced police investigators and/or prosecutors. Tunnel vision, confirmation bias, and other mental shortcuts can lead to investigative lapses when evidence that the defendant is not the culprit is mentally ignored or downplayed.”
· Chris Ford, Tw0-and-a-Half Centuries of Dissension in the Ranks. The article promotes Chris Lombardi, I A’int Marching Anymore. The New Press (Nov. 2020. (Available for pre-order on Amazon.)
Research & Writing.
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