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Dateline: 2 October 2020.
 
CAAF
 

• Oral argument Wednesday, September 30, 2020

 
 
United States v.
Kaleb S. Garcia
No. 20-0262/AF

(Appellee)
(Appellant)

Counsel for Appellant: Capt David L. Bosner, USAF (supplement)
Counsel for Appellee:  Capt Kelsey Shust, USAF (answer)
Case Summary: Appellant is charged at a general court-martial with sexual assault. The Military Judge issued a ruling suppressing evidence and the Government appealed the ruling to the AFCCA under Art. 62, UCMJ. The AFCCA granted the Government's appeal and reversed the ruling by the Military Judge. Appellant petitioned this Court for grant of review.

Granted issue questions whether the Air Force Court of Criminal Appeals erred in finding that the Military Judge abused her discretion in suppressing evidence obtained as a result of a search and seizure of Appellant's DNA.
The audio recording is here.

ACCA
 

• United States v. Ross.

 
Appellant raises three assignments of error, two of which we will address. First, he argues that the evidence is legally and factually insufficient. Second, he claims that the military judge abused his discretion in allowing the testimony of a corroborating witness. For the reasons that follow, we disagree and affirm.
 

• United States v. Haygood. A factual and legal sufficiency case in which the court agrees on of the specifications must be dismissed.

 

• United States v. Nuno. This one is interesting, and my guess is it is CAAF-worthy.

 
Appellant argues he was deprived of his Sixth Amendment right to confront his accuser when the military judge refused to strike her testimony after she repeatedly invoked her Fifth Amendment privilege against self-incrimination. We hold that the military judge did not abuse his discretion in refusing to strike the victim's testimony when she invoked her right against self-incrimination as to whether she owned a firearm and whether she was untruthful on a security clearance form.
 

• United States v. Wall.

 

• United States v. McPherson.

 

• United States v. Tate. Post-trial actions problems.

 
AFCCA
 

• United States v. Fierro.
  • Appellant raises one issue on appeal: whether Appellant’s sentence violates Article 63, UCMJ, 10 U.S.C. § 863, and Rule for Courts-Martial (R.C.M.) 810(d) because it is in excess of or more severe than his original approved court-martial sentence. Specifically, Appellant argues he is entitled to relief because the reduction to E-1 and forfeiture adjudged at the rehearing cannot be measured against a punitive discharge or offset by no punitive discharge being adjudged at the rehearing. We also consider whether Appellant is entitled to relief for a violation of the 18-month standard for appellate review established in United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006). We find no error materially prejudicial to the substantial rights of Appellant occurred, and we affirm the sentence.

 CGCCA
 
NMCCA
 
In the News—pending appellate cases.
 
Worth the Read.
 
·         The Joint Service Committee on Military Justice has submitted its subcommittee's Prosecutorial Authority Study report in response to § 540F of the National Defense Authorization Act for Fiscal Year 2020. The report, which cost the taxpayers $109,000 (that is $1185 per page, if you do not count the appendices), can be found here. There is also a one-page summary here.
 
·         A federal Judiciary committee has issued a new set of model jury instructions (pdf) that federal judges may use to deter jurors from using social media to research or communicate about cases.
 
·         Nathaniel Penn writes in The California Sunday Magazine about the case of 1lt Clint Lorance.
 
·         Kim, et. al., A rare presentation of sexsominia in a military service member. Published online from the Journal of Clinical Sleep Medicine, 22 September 2020 (unfortunately behind a paywall).
 
Sexsomnias are unconscious sexual behaviors during sleep (parasomnias) that are garnering more attention as they become increasingly evident in forensic cases. Presentations of sexsomnia in active duty service members are seldom described and often evaluation is clouded by intoxication with substances such as alcohol, sleep deprivation, untreated sleep disturbances, or criminal behavior masquerading as a medical disorder. We present a case of a 40-year-old male soldier evaluated in our Sleep clinic for multiple episodes of sleep masturbation occurring over a period of two years. The patient was concerned about his suitability for deployment to a combat zone and participation in field training exercises (both require sleeping in groups in an open environment). Video polysomnography confirmed moderate obstructive sleep apnea and the patient showed improvement with continuous positive airway pressure therapy. The authors also discuss the relevance of this case compared to previously reported sexsomnia cases and expand upon parasomnia topics that are more common in military populations.
 
A colleague who has read this article recommends it as relevant should you have a case with the issue.
 
·         The CCAs have written on the subject either as parasomnia, automatism, or sexsomnia. E.g., United States v. Patrick, 78 M.J. 687 (N-M. Ct. Crim. App. 2018) (the facts are like those noted in Kim); United States v. Clugston, 2017 CCA LEXIS 43 (NMCCA).
·         United States v. Torres, (AFCCA) (rejecting automatism as relevant to actus reus).
o   Noting that very few military cases had addressed the issue of unconscious acts, we rejected the idea that automatism related to actus reus. Instead, finding unconsciousness to be "one of the many disorders encompassed by the defense of insanity," we agreed with our sister court that "nothing in those [prior military] cases indicat[ed] that unconsciousness merits different consideration from that given any other mental disorder." Harvey, 66 M.J. at 587-88, citing United States v. Riege, 5 M.J. 938, 941 (N.C.M.R. 1978).
·         United States v. Torres, No. ACM 37623, 2013 CCA LEXIS 853, at *18 (A.F. Ct. Crim. App. Oct. 2, 2013).
·         United States v. Savage, 67 M.J. 656 (ACCA 2009) (a case about TC access to mental health records concerning the issue of parasomnia).
o   After hearing extensive expert psychiatric testimony, the military judge concluded parasomnia "can have an effect on behavior or the mind." The military judge determined parasomnia is, at the very least, comprised of both physiological and mental aspects. The military judge also noted parasomnia is a condition listed in the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition, Text Revision, and is classified as a mental disorder recognized by the American Psychiatric Association. Furthermore, the military judge found that defense counsel sought to introduce evidence of appellant's alleged parasomniac episode to negate mens rea. Based upon all the evidence, the military judge found parasomnia was a "mental condition" as defined by Mil. R. Evid. 302.
o   We agree with the military judge's analysis. A parasomniac event may involve physiological reactions and still be classified a "mental condition" for purposes of Mil. R. Evid. 302. The triggers of Mil. R. Evid. 302 are not limited to those cases where a lack of mental responsibility defense is presented. The MCM ascribes a broader meaning to the term "mental condition" than "mental responsibility," as they are used together in many instances, most notably in R.C.M. 916(k)(1) and (2). The evidence presented at trial established that parasomnia is both a physical and mental condition; and the defense introduced evidence to negate appellant's mens rea at the time of the offense. Under these facts, parasomnia is a "mental condition" as defined by Mil. R. Evid. 302, and consequently it was not error for the government to receive the long form sanity board report. Appellant's statements made during the sanity board, however, remained protected under Mil. R. Evid. 302.
United States v. Savage, 67 M.J. 656, 661-62 (A. Ct. Crim. App. 2009).
 
            The bottom line suggests that advancing the defense is very fact intensive with facts very recent or concurrent with the alleged offenses and a competent expert to assist.
 
·         Jonathan Turley has written on a recent 9th Circuit decision on a prosecutor’s comments in closing argument—a reversal of the conviction. This is the offending language.
 
“This idea of this presumption of innocence is over. Mr. Ford had a fair trial. We were here for three weeks where . . . he gets to cross-examine witnesses; also an opportunity to present evidence information through his lawyer. He had a fair trial. This system is not perfect, but he had a fair opportunity and a fair trial. He’s not presumed innocent anymore.”
 

• In recent months, the use of Rule 702 has come into question by a few defense attorneys. In a letter submitted to the Judicial Conference Advisory Committee on Evidence Rules, the attorneys advised of trends in more than two dozen MDLs pointing to judges failing to follow the federal rules of evidence. So reports Advocate Capital Inc. And this matters to you because,

 
Mil. R. Evid. 1102, requires adoption of any Fed. R. Evid. change 18 months after the effective date of the amendment (unless “amended” for military practice).
 

• Here is a link to D. G. Rehkopf, The Investigation Omissions Defense: Some thoughts for Defense Counsel. Don prepared this post at CAAFLog’s request. Check it out.

 

• Stephanie Williams at Appellate Advocacy Blog begins,

 
Once again, we find ourselves at the end of a week full of heavy news.  While we mourn the passing of Justice Ruth Bader Ginsburg and the staggering loss of so many to COVID-19, and worry about the rampant injustice made even more evident this week, we might also take a mental break for something lighter.  If you are looking for a fun piece on briefing to take your mind off the news of the day, check out this sample from the California Court of Appeal:  https://www.courts.ca.gov/documents/2DCA-eFiling-Sample-Brief.pdf. 
 
In a cheerful, light-hearted way, the Court’s sample brief helps pro se litigants, but also reminds us all to make our briefs simple and clear.  See https://www.law.com/supremecourtbrief/2019/03/06/this-8-page-cert-petition-caught-the-justices-eyes-clarence-thomass-many-doubts-meet-the-last-supreme-court-crier/ (discussing a more “real life” example of short, clear writing in a successful eight-page cert petition).  The sample also helps litigants include all opening brief sections required by the California Rules of Court.
 
All brought to you as a product of the MilitaryLawNewSpeakBureau.

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