From the great Prof. Berman’s Sentencing Law & Policy.
The Court was notably unanimous in Caniglia v. Strom, No. 20–157 (S. Ct. May 17, 2021).bThe start and close of the short opinion for the Court by Justice Thomas serves as a useful summary:
Army Court of Criminal Appeals
United States v. Hale. In this contested MJA case, Appellant was sentenced to one year confinement, a DD, and a reduction; because of two specifications of abusive sexual contact and one of sexual assault. There were three AOEs, one of which got partial relief—substitution of an LIO for one of the specifications. The sentence was however affirmed.
United States v. Hayes. Appellant was sentenced by an “enlisted panel” to 21-months confinement, a DD, and a reduction; because he three times attempted child sexual abuse and two times attempted indecent communications to a child.
Air Force Court of Criminal Appeals
United States v. Rodela. Scheduled for oral argument 13 July 2021, issues not listed.
United States v. Gonzalez. In this MJA/GP case, Appellant was sentenced to six days confinement, a BCD, and stuff; because he used cocaine and MDMA quite a bit. The primary issue was sentence appropriateness.
United States v. Palacios-Cueto. An “enlisted” panel sentenced Appellant to 90 days confinement, a BCD, and a reduction; because they found him guilty of two specifications of abusive sexual contact. The Appellant raised eight issues.
The elements of Specification 2 of the Charge alleging abusive sexual contact in violation of Article 120, UCMJ, for which Appellant was convicted include: (1) that Appellant committed sexual contact upon MT by touching MT’s stomach with his hand;11 (2) that MT was incapable of consenting to the sexual contact due to impairment by alcohol; (3) that Appellant knew or reasonably should have known of MT’s impairment; and (4) that Appellant did so with the intent to gratify his sexual desire.
This case illustrates the continuing difficult of the several different theories in a sex offense case and how the prosecution wanders among the theories.
“The Government first gave the members the impression that its theory of the kissing, as charged in the Specification of the Additional Charge, was that MT was too incapacitated to consent, but its evidence and argument made clear its theory was lack of consent and not incapacitation.”
As to the argument issue--one seen quite often.
The circuit trial counsel introduced himself and his co-counsel before questioning the court members. He stated, My name is [ ]. I’m the circuit trial counsel and I’m stationed at Langley Air Force Base. I am TDY here to represent the United States of America in the pursuit of justice in this case. I’m assisted today with Lieutenant [ ], he is stationed here at Hanscom. We will be dividing up tasks throughout this trial, and he is what we call the assistant trial counsel. After voir dire, the number of enlisted court members fell below the minimum ratio of one-third of the panel, see R.C.M. 503(a)(2), and the convening authority detailed additional enlisted court members. Before questioning those members, the circuit trial counsel introduced himself and his co-counsel using words very similar as before, including, “I’m stationed at Langley Air Force Base, Virginia, and I’m TDY here to represent the United States of America in the pursuit of justice in this case.” It gets worse, worse enough that the court finds obvious but harmless error.
Judge Meginley, partially dissenting
However, I respectfully cannot agree with the court’s decision to affirm the finding of guilty to Specification 2 of the Charge, which alleged that Appellant made sexual contact upon MT by touching her stomach with his hand. I would find this specification legally and factually insufficient, failing to meet the element that Appellant intended to gratify his sexual desire by touching MT’s stomach, and would set aside Appellant’s adjudged punishment of a bad-conduct discharge. Further, I find there was ineffective assistance of counsel and that trial counsel committed prosecutorial misconduct during their arguments.
United States v. Beavers. In this MJA/GP case Appellant was sentenced to four months confinement, a BCD, forfeitures, a reduction, and a reprimand; because of using controlled substances over 20 months. Appellant is making his second appearance after remand to correct post-trial errors.
United States v. Green. In this MJA/GP case, Appellant was sentenced to 10 months confinement, a BCD, and other stuff, because he admitted to three instances of indecent exposure. This is Green’s second appearance at AFCCA after a remand to correct post-trial errors.
United States v. Hepfl. In this MJA/GP case, Appellant was sentenced to 11 months confinement, a BCD, forfeitures and reduction, and the really harsh reprimand, because he had used a controlled substance four times over 20 months. Another case remanded for post-trial error.
United States v. Blow. In this MJA/GP case, Appellant was sentenced to five months confinement and a BCD, because he admitted to two 92’s and an A&B. Another case remanded for post-trial errors.
Navy-Marine Corps Court of Criminal Appeals
United States v. Griffin, __ M.J. ___ (N-M Ct. Crim. App. 2021). In this MJA/GP case, Appellant was sentenced to five months confinement and a BCD; because he admitted to an assault and battery and wrongful distribution of intimate visual images. On appeal he had two issues: (1) improper argument by the trial counsel; and (2) the Court should refuse to accept for appellate review a record that is not substantially complete and has not been certified by the detailed court reporter.
In a supplemental brief,
Did the hearing officer’s failure to resolve the disputed level of violence of Appellant’s alleged misconduct conflict with the requirement in United State v. Miley? (4) Should military servicemembers have heightened minimum Due Process rights at a vacation hearing— requiring a verbatim transcript and a meaningful right to present witnesses and evidence—than those provided to civilians at parole revocation hearing pursuant to Morrissey v. Brewer? (5) Did the pretrial agreement terms violate appellate law and public policy because, by their plain language, they placed Appellant on probation irrespective of his status of being subject to the UCMJ? (6) Did the pretrial agreement’s failure to define “a material breach” violate appellate law and public policy, and did the military judge abuse his discretion by failing to inquire as to the parties’ understanding of this provision?
United States v. Millette, __ M.J. ___ (N-M Ct. Crim. App. 2021). Appellant was sentenced to five years and a DD by an “enlisted” jury for sexual abuse of his 15-year-old sister-in-law.
He asserts six assignments of error [AOEs], which we renumber as follows: (1) the military judge abused his discretion by denying a Defense motion for in camera review and production of the victim’s mental health diagnoses, treatment, and prescribed medications; (2) the military judge abused his discretion by allowing the Government to admit expert testimony that Appellant fit the profile of a perpetrator who grooms children for sex; (3) the evidence is legally and factually insufficient to support his conviction; (4) the military judge committed plain error by allowing the victim to recommend a specific sentence in her unsworn victim impact statement; (5) the record of trial is incomplete because the military judge failed to attach four enclosures of a Defense motion;1 and (6) the findings and sentence should be set aside under the cumulative error doctrine.
We find merit in Appellant’s first, second, and fourth AOEs, order some of the language stricken from the specification, affirm the finding as to the remaining language, and reassess the sentence.
The impact of BPD in alleged victims of a sexual offense suggest two significant conclusions for trial practitioners: they may be more likely to engage in consensual sexual behavior which they later regret (and coupled with need for a secondary gain, make a false accusation) and, they also may be more likely to become a victim. See R.A. Sansone & L. A. Sansone, Sexual Behavior in Borderline Personality: A Review. Innov. Clin. Neurosci, 14-18, 8 Feb. 2011, Nat’l Center for Biotechnical Information, Nat’l Institute of Health. See also, De Zutter, A.W.E.A., Horselenberg, R. & van Koppen, P.J. Motives for Filing a False Allegation of Rape. 47 Arch. Sex Behav. 457–464 (2018).
Access to and admission of a history of BPD requires a nuanced balancing act by the military judge, which the court in Mellette takes on. (N.B. What effect if any will the grant in Beaugue, also a NMCCA case, have on this case?
Here, the military judge erred in “summarily rejecting” the waiver argument. and in [c]oncluding the requested information was not subject to production under R.C.M. 703(f).
The court concluded error as to the “diverse occasions” language but not as to one event. Considering the Appellant had confessed to the one event that seems a reasonable argument to overcome the prejudice prong.
Another message from Millette,
The defense failed to object to a sentence recommendation in the victim’s unsworn statement, but adopting the plain error test the court found error but no prejudice.
Note to file. Object when the victim says,
“I suffered in silence for five years before circumstances made me tell the truth of what he had done to me. I think that he needs a significant amount of jail time to think about the pain he has put me through.” (Emphasis added and in the original.)
Interestingly, trial counsel argued for five years confinement. But the court determines this argument, serendipitously adopting the victim’s number, removes the prejudice.
Note to the fleet. Reread United States v. Ohrt, 28 M.J. 301 (C.M.A. 1989).
Some common nuanced, or not so nuanced sentence recommendations include, that the accused has “[n]o potential for continued service[.]”
Note to DC. You are the gatekeeper here. What you do in sentencing might allow the prosecution to rebut what you put forward in sentencing.
“I believe he should be retained” may open the door.
“I would go to war with him,” said alone is not currently rebuttable, unless the prosecution witness were to say only that “I wouldn’t go to war with him.”
See United States v. Hallum, 31 M.J. 254 (C.M.A. 1990) on how this can get sticky.
LIKELY APPELLATE CASES
United States v. Henderson. A Hill AFB airman has had “State criminal charges in a Clearfield shooting have been dismissed because a military (sic) court-martial is in the works[.] A “Second District Judge David Connors signed an order April 30 dismissing charges against Michael E. Hernandez, 21, who allegedly fired five shots, hitting one man, at a March 14 party. Hernandez faced charges of first-degree felony attempted aggravated murder; five third-degree felony counts of discharge of a firearm; and a second-degree felony count of obstructing justice.”
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