UP PERISCOPE

​Dateline: 11 December 2020; a summary of the week.
 
Of note: 1 December 2020 saw a change to Federal Rule of Evidence 404(b). That means, absent Presidential action Mil. R. Evid. 404(b) will change 18 months from now. SeeMil. R. Evid. 1102.
 

• The defense will no longer be required to make a demand for notice—prosecution must disclose regardless of a request!
• The notice must be in writing—no oral notice!
• Most importantly, the notice requires more than the standard talismanic incantation and must include “the reasoning that supports the purpose.

 
SUPREME COURT

• Briggs v. United Statesdecided and reinstates, effectively, Willenbring.
• Does Ramos v. Louisianaapply to courts-martial? Who of you will answer the question pro or con?
  
  • InRamos v. Louisiana, the court noted that in “48 States and federal court” a single juror’s vote to acquit is enough to prevent a conviction. The court does not mention courts-martial. This would be the second time, would it not that the court has neglected to include in the discussion courts-martial, although footnote 7 references Holland, Improving Criminal Jury Verdicts: Learning From the Court-Martial, 97 J. Crim. L. & C. 101, 125–141 (2006) Slip op. at 4, (Alito, J., dissenting).  
    
  • “This Article suggests that adopting several specific procedures used by the modem American court-martial would enhance the effectiveness and finality of verdicts in state jury trials for noncapital criminal cases: reaching the verdict based upon the consensus of a super-majority of the jurors, through secret written ballot, with acquittal resulting for any charge for which a guilty verdict is not reached.”

 

• Brief of DOJ in Viola v. United States. United States v. Viola, 26 M.J. 822 (A.C.M.R. 1988) aff’d 27 M.J. 456 (C.M.A. 1988), pet. denied 490 U.S. 1020 (1989).
• Eugene M. van Loan, The Jury, the Court-Martial, and the Constitution. 57 CORNELL L. REV. (1972).
• Murl L. Larkin, Should the Military Less-Than-Unanimous Verdict of Guilt be Retained? 22 HASTINGS L. J. 237 (1971).

CAAF

• The court has decided United States v. Garcia. The court begins,
  
  • It is repugnant to the purpose and principles of the Fourth Amendment for an agent of the government to “knowingly and intentionally, or with reckless disregard for the truth” include in an affidavit false information that is material to a search authorization request, Franks v. Delaware, 438 U.S. 154, 155 (1978), or to make material omissions “that are designed to mislead, or that are made in reckless disregard of whether they would mislead, the magistrate,” United States v. Mason, 59 M.J. 416, 422 (C.A.A.F. 2004) (emphasis omitted) (internal quotation marks omitted) (quoting United States v. Colkley, 899 F.2d 297, 301 (4thCir. 1990)). This proposition should be self-evident. And yet, the Government’s troubling conduct in the instant case compels this Court to underscore this essential point from the outset of this opinion.  
  • However, “Despite the Government’s improper conduct in this case, we hold that the trial judge did abuse her discretion in suppressing the evidence from the second search and we therefore affirm the decision of the AFCCA.”

 

• No. 20-0217/NA/No. 20-0327/NA. United States, Appellee/Cross-Appellant v. Stephen A. Begani, Appellant/Cross-Appellee. CCA 201800082. On consideration of the motion to file an out-of-time petition for reconsideration and the petition for reconsideration, it is ordered that said motion to file an out-of-time petition for reconsideration is granted, and the petition for reconsideration is granted on the following issue:

 WHETHER FLEET RESERVISTS HAVE A SUFFICIENT CURRENT CONNECTION TO THE MILITARY FOR CONGRESS TO SUBJECT THEM TO CONSTANT UCMJ JURISDICTION.

• "No. 20-0366/AR. U.S. v. Thomas M. Adams. CCA 20130693. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

WHETHER THE 2016 AMENDMENTS TO ARTICLE 43, UCMJ, RETROACTIVELY MADE THE STATUTE OF LIMITATIONS FIVE YEARS FOR INDECENT LIBERTIES AND SODOMY OFFENSES CHARGED UNDER ARTICLES 134 AND 125, UCMJ, RESPECTIVELY
          It is possible Briggsand Collinswill be decided before CAAF gets to deciding Adams.  

• "No. 20-0366/AR. U.S. v. Thomas M. Adams. CCA 20130693. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

 WHETHER THE 2016 AMENDMENTS TO ARTICLE 43, UCMJ, RETROACTIVELY MADE THE STATUTE OF LIMITATIONS FIVE YEARS FOR INDECENT LIBERTIES AND SODOMY OFFENSES CHARGED UNDER ARTICLES 134 AND 125, UCMJ, RESPECTIVELY.

• No. 20-0195/AR. U.S. v. Jeremy N. Navarette. CCA 20160786. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:
  WHETHER THE ARMY COURT ERRONEOUSLY DENIED APPELLANT'S REQUEST FOR A POST-TRIAL R.C.M. 706 INQUIRY BY REQUIRING A HEIGHTENED THRESHOLD SHOWING UNDER R.C.M. 1203.
• No. 21-0017/AR. U.S. v. Clovis H. Castro. CCA 20190408. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:
  WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN ACCEPTING APPELLANT'S GUILTY PLEA TO SPECIFICATION 1 OF CHARGE II ("STEAL GAS, OF A VALUE LESS THAN $500, THE PROPERTY OF THE GENERAL SERVICES ADMINISTRATION").
• No. 21-0040/AR. U.S. v. Leshan Jones. CCA 20190254. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following specified issue:

WHETHER THE CONVENING AUTHORITY'S FAILURE TO TAKE ACTION ON THE SENTENCE DEPRIVED THE ARMY COURT OF JURISDICTION UNDER ARTICLE 66, UCMJ.
         CAAF has already granted one other case on this issue and it looks as if there will be more in the pipeline.  

AFCCA

• United States v. Brunson. Appellant raised (1) factual sufficiency, (2) instructional error, and the court raised (3) Morenocredit.
• United States v. Schram. A factual sufficiency case, with a post-trial error, and interestingly, (1) “whether the military judge erred in denying the defense motion to exclude the testimony of ML, or dismiss the specifications relating to her in Charge I, because she testified as a witness under Mil. R. Evid. 413 or 414 at Appellant’s prior court-martial,” and (2) a challenge to the MJ for a conflict.
• United States v. Lopez. Another case of post-trial errors. This case is worth the read on a panel identified issue—“straddle” cases and action or lack of action on the sentence. There are a variety of opinions by both AFCCA and ACCA on this topic and the issue is pending in United States v. Brubaker-Escobar, USCA Dkt No. 20-0345/AR, 2020 CAAF LEXIS _____ (C.A.A.F. 30 Oct. 2020) (order).

 
CGCCA
NMCCA
IN THE NEWS—PENDING APPELLATE CASES.

• United States v. Briggs. Briggs, a “Navy information-technology expert pleaded guilty on Tuesday to charges that he sent secret, classified information from a U.S. Strategic Command computer at Offutt Air Force Base to a Russian national with whom he was romantically involved.” He was sentenced to 31 months confinement and RIR from E-7 to E-4 (he received 480 pretrial confinement credit). It became a GP case.

 
WORTH THE READ.

• A little off topic but you may remember some years ago victims attempted to sue the DoD for their victimization while serving. Those suits failed. But now some cavitation. Politico reports thatthe Merchant Marine Academy has settled a FTCA action by a victim of sexual assault at the academy.
• “Daniel Patrick Moynihan is often credited for the timeless axiom that, ‘you are entitled to your own opinions, but you are not entitled to your own facts.’ The recent editorial by former Army prosecutor and Lieutenant Colonel Jay Morseexplaining why inmateBalesis not deserving of a presidential pardon starkly illustrates the axiom’s relevance.” See United States v. Bales, No. 20130743, 2017 CCA LEXIS 627 (A. Ct. Crim. App. Sept. 27, 2017) (unpub.) aff’d without opinion 77 M.J. 268 (C.A.A.F. 2017) cert. petition denied Bales v. United States, 138 S. Ct. 2692, 2018 U.S. LEXIS 3906 (2018). A little more here.
• The Congressional Research Service is a nonpartisan effort to “inform[] the legislative debate[,]” and can be a resource for litigation. See, e.g., Jonathan Gaffney, Supreme Court Considers Statute of Limitations for Military Rape Cases. 4 December 2020.
  
  • The report suggests three rules of statutory interpretation that the Supreme Court may resort to.  
    
  • Constitutional avoidance.
    
  • The rule of lenity.  
    
  • The presumption against retroactive legislation.
    
  • For further understanding of the CRS view on statutory interpretation (perhaps a companion to Reading the Law by Scalia & Garner) seeValierie C. Brannon, Statutory Interpretation: Theories, Tools, and Trends. 5 April 2018.  
• The report concludes with Considerations for Congress,
  
  • Although the resolution of Briggs’s, Collins’s, and Daniels’s cases rests with the Court, the legal issues at play highlight several considerations for Congress should it decide to amend the UCMJ. First, if Congress seeks to clarify that it intends a future UCMJ amendment to apply retroactively, it could include an “unambiguous” statement to that effect. Second, Congress could consider amending the UCMJ to clarify whether Article 55’s prohibition on “cruel and unusual punishment” is congruent with the Eighth Amendment’s similar prohibition. Finally, to avoid future uncertainty as to the proper statute of limitations for offenses “punishable by death,” Congress might define statutes of limitations under Article 43 by categories of crimes, rather than by the type of authorized punishment.  
• 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