Week in Review -- 02042021

SCOTUS

Prof. Berman at Sentencing Law & Policy, has this note.

The Supreme Court generally does not view itself as in the business of error correction, but it still sometimes finds a few criminal cases in which it just cannot resist fixing what looks like an incorrect ruling below.  Today's order list, for example, brings a per curiam summary reversal in Mays v. Hines, No. 20–507 (S. Ct. Mar. 29, 2021) (available here), in which the Court corrects the work of the Sixth Circuit via an eight-page opinion that starts and ends this way:

A Tennessee jury found Anthony Hines guilty of murdering Katherine Jenkins at a motel.  Witnesses saw Hines fleeing in the victim’s car and wearing a bloody shirt, and his family members heard him admit to stabbing someone at the motel.  But almost 35 years later, the Sixth Circuit held that Hines was entitled to a new trial and sentence because his attorney should have tried harder to blame another man.  In reaching its conclusion, the Sixth Circuit disregarded the overwhelming evidence of guilt that supported the contrary conclusion of a Tennessee court.  This approach plainly violated Congress’ prohibition on disturbing state-court judgments on federal habeas review absent an error that lies “‘beyond any possibility for fair-minded disagreement.’” Shinn v. Kayer, 592 U.S. ___, ___ (2020) (per curiam) (slip op., at 1); 28 U.S.C. §2254(d).

​Notably, Justice Sonia Sotomayor dissented from this per curiam ruling, but without any opinion, so this was technically an 8-1 error correction.

ACCA

United States v. Olson.

​Appellant was convicted by a military judge of two specifications of rape, one specification of assault  consummated by battery, and one specification of making a false official statement. The military judge sentenced appellant to eight years Army rations complemented with a Duck Dinner and two sides.

Appellant raised the following issues: (l) error in admitting prior consistent statements made by the victim; (2) error in admitting testimony as to the victim's character for  truthfulness; (3) error in allowing a government expert to testify about matters outside the scope of her expertise during redirect examination; and (4) ineffective assistance of counsel.

The court found the issues to be without merit. The court did address a claim on appeal of UMC but declined to exercise its authority to give relief for the waived error. The court found no prejudicial error for evidence of the victims "virginity" at the time of the offense, or evidence of an STD, or evidence about a polygraph result. In addressing the cumulative error doctrine the court said,

Given the number of errors in this case, we must also consider the cumulative effect of the erroneously admitted evidence. "[A] number of errors, no one perhaps sufficient to merit reversal, in combination [may] necessitate the disapproval of a finding." We review the cumulative effect of plain and preserved errors de nova. Id. We reverse only if we find that the cumulative errors denied appellant a fair trial. Id. In this case there was strong evidence of appellant's guilt and none of the errors related to improperly admitted evidence materially prejudiced appellant's substantial rights. As previously discussed, the strength of the government's case was based upon appellant's devastating admissions to law enforcement, the victim's testimony about the assault, the victim's subsequent demeanor and immediate disclosure to multiple friends. Under the circumstances of this case, we find appellant was not denied a fair trial.

AFCCA

United States v. Samudio. GP to one specification of indecent conduct. Sentenced to a Big Chicken Dinner and one side.
Issues. Sentence appropriateness and CA error by failing to write out the denial of deferments.
Moral: Do not take off your clothes and masturbate while outside your car and facing a public highway.
 
United States v. Greer. GP to one charge of assault and battery. Sentenced to 60 days, a Big Chicken Dinner and two sides.
 
Issues: CA error post-trial and post-trial sentence credit. The court also took up the CA action as error and whether the GP was improvident. But, because the case is going back for a new review we must sit on our hands to find out if there was a substantial basis to question the plea to assault “with his “hands.””
 
United States v. Anderson. GP to fraudulent enlistment and five specifications of using drugs. Sentenced to 104 days enjoying his brig food to complement his Big Chicken Dinner with one side. He has not been required to give a Yelp review.
 
Issues. Submitted on its merits the court however has returned the case to the CA---because of post-trial errors. I think the AF is ahead in the PT race with quite a few laps to go.
 
NMCCA

The court has issued 29 summary dispositions since 19 March 2021, plus the following.

United States v. Garrett. Sentence adjudged 25 October 2019 by a general court-martial convened at Naval Air Station Jacksonville, Florida, consisting of officer and enlisted members. Sentenced to two years and a duck dinner with two sides, for one specification of sexual assault by causing bodily harm.
 
Issues of which there were seven: (1) factual sufficiency, (2) instructional error, (3) IAC (didn’t object to improper expert opinion and didn’t move to exclude the CW’s testimony under MRE 914, (4) error in admitting prior consistent, (5) IAC for failing to suppress a pretext call, (6) non-unanimous verdict violated Sixth Amendment, (7) (?) factual insufficiency because of the CW’s motive to fabricate(?).
 
The court rejected (6) and (7) as without merit, and after writing a bit also rejected the other arguments.
 
United States v. Edmonds.
 
Sentence adjudged 29 March 2019 by a general court-martial convened at Marine Corps Base Camp Pendleton, California, consisting of officer and enlisted members. Sentenced to two years and a duck dinner, for one specification of sexual assault .
 
Issues of which there were seven: (1) error in instructing on variance (a winner), (2) factual sufficiency (another winner), (3) TDC had a conflict of interest, (4) prosecutorial misconduct, (5) cumulative error, (6) post-trial delay, (7) error admitting uncorroborated statements.
 
In a footnote, the court says they have reviewed the TDC conflict for reasons of judicial economy. Apparently, an exception to the advisory opinion rule. Although the issue is an interesting one to gossips, I’m not sure why we needed to know all the personal gossip now made public.
 
United States v. Braimer. 80 M.J. ___ (N-M. Ct. Crim. App. 2021).
 
Sentence adjudged 18 April 2019 by a general court-martial convened at Naval Station Norfolk, Virginia, consisting of officer and enlisted members. Sentenced to two years, and a duck dinner with one side, for attempted abusive sexual contact, sexual harassment, sexual assault, and abusive sexual contact.
 
Appellant raised 12 AOEs. (1) error to refuse defense counsel to cross-examine one of the victims with a specific instance of untruthfulness; (2) error to deny a Defense request for a mistake-of-fact instruction for the charge of attempted abusive sexual contact; (3) prosecutorial misconduct by improperly referring to suppressed evidence and during rebuttal argument characterized Appellant’s trial defense counsel’s cross-examination as “shoving words into someone’s mouth” and vouched for his co-counsel; (4) legal and factual sufficiency for abusive sexual contact, as well as (5) sexual harassment and (6) attempted abusive sexual contact; (7) a discovery violation because the Government failed to disclose fingerprint evidence supporting Appellant’s description of events; (8) denial of the statutory right to counsel of his choice;1 (9) IAC in failing to obtain and present at trial any prosecutorial merits memorandum memorializing the Irish Government’s reasons for declining to prosecute Appellant; (10) the Government improperly failed to turn over the actual physical evidence to the Defense; (11) legal and factual sufficiency for all charges; and (12) cumulative error.
 
Of everything, the sexual harassment conviction was set-aside.

United States v. Drinkert., 80 M.J. ___ (N-M Ct. Crim. App. 2021). Sentence adjudged 4 June 2019 by a general court-martial convened at Naval Station Norfolk, Virginia, consisting of officer and enlisted members, resulting in 15 years and a duck dinner; for three specifications of sexual assault, and one specification of indecent visual recording.
 
Appellant raises nine assignments of error (1) the military judge abused his discretion when he declined to suppress evidence from Appellant’s cellular phone; (2) the military judge improperly admitted hearsay evidence; (3) the military judge improperly excluded Appellant’s statements as hearsay; (4) Appellant received ineffective assistance from his trial defense counsel; (5) the evidence is not factually sufficient to support Appellant’s convictions;  (and as Grosty) (6) the military judge abused his discretion when he declined to release Appellant from pre-trial confinement; (7) the record of trial was not served on Appellant; (8) Appellant’s trial defense counsel were generally ineffective during discovery and at trial; and (9) Appellant was denied due process when he was provided an inadequate accounting of the personal property seized from his residence by law enforcement.
 
The suppression issue related to voluntariness of a consent to search and the search. The court finds error because the consent was involuntary and because of the behavior of the NCIS agents. The court found there was deterrent value in excluding the evidence. But, the error is harmless beyond reasonable doubt.
 
United States v. Pearson, 80 M.J. ___ (N-M Ct. Crim. App. 2021).
 
Sentence adjudged 25 July 2019 by a general court-martial convened at Marine Corps Air Station Yuma, Arizona, consisting of officer and enlisted members, resulting in eight months and a duck dinner; for one specification of sexual abuse of a child on divers occasions and one specification of receipt, viewing, and possession of child pornography on divers occasions.
 
Appellant asserts four assignments of error (1) this Court lacks jurisdiction to act on the findings and sentence because the convening authority took “no action” on the sentence;2 (2) the military judge erred in failing to suppress Appellant’s statements to a civilian law enforcement officer and his subsequent statements to the NCIS; (3) the evidence is legally and factually insufficient to sustain a conviction for receiving, viewing, and possessing child pornography; and (4) Appellant’s sentence was inappropriately severe. We find merit in the third AOE because only one of the five images charged images constitutes child pornography. Therefore, we set aside certain language in the child pornography specification and reassess the sentence.
 
Of note, “Appellant argues that because of Off. India’s status as a retiree of a regular component of the armed forces, Off. India was required to provide him Article 31(b) warnings before questioning him about his relationship with Miss Johnson.”  

(Query. Is military TDC required to give 31 warnings when interviewing witnesses and would a retiree CDC also be required to do the same?)
 
United States v. Berrian.
 
Sentence adjudged 26 July 2019 by a special court-martial convened at Marine Corps Base Camp Pendleton, California, consisting of officer and enlisted members, resulting in 6 months and a big chicken dinner and one side; for one specification of assault consummated by battery by striking his wife on the head with his hand.
 
Appellant asserts two assignments of error [AOE]: (1) that the military judge abused his discretion by denying a challenge for cause for implied bias of a potential member with extensive experience as a victim advocate and (2) that it was plain error to admit a hearsay statement as a prior consistent statement.
 
APPELLATE ADVOCACY
 
Tessa Dysart at Appellate Advocacy Blog posts, ““This is Not Proper Appellate Advocacy”: Third Circuit Slaps Sanctions on Attorney Who Copied and Pasted Trial Court Briefs. The attorney was ordered to personally pay the defendant’s costs. For a historical segue—you might remember that the NMCCA once had a problem of cut-and-pasting, largely wholesale the Government Answer to Appellant’s brief. In United States v. Jenkins, the court took up,
 
WHETHER THE LOWER COURT'S VERBATIM REPLICATION OF SUBSTANTIAL PORTIONS OF THE GOVERNMENT'S ANSWER BRIEF AS THAT COURT'S OPINION CONSTITUTES AN ABUSE OF DISCRETION, NEGATES ANY APPEARANCE OF JUDICIAL IMPARTIALITY AND SUBSTANTIALLY UNDERMINES THE INTEGRITY OF THE OPINION.
 
United States v. Jenkins, 60 M.J. 27, 28 (C.A.A.F. 2004). 
 
WORTH THE READ

Shon Hopwood, Restoring the Historical Rule of Lenity. 95 N. Y. U. L. REV. 918 (2020).
In criminal law, the venerated rule of lenity has been frequently, if not consistently, invoked as a canon of interpretation. Where criminal statutes are ambiguous, the rule of lenity generally posits that courts should interpret them narrowly, in favor of the defendant. But the rule is not always reliably used, and questions remain about its application. In this article, I will try to determine how the rule of lenity should apply and whether it should be given the status of a canon.