SCOTUS (Courtesy of SCOTUSBlog)
On 20 April 2021, the court heard oral argument in Greer v. United States on this issue,
Whether, when applying plain-error review based on an intervening United States Supreme Court decision, Rehaif v. United States, a circuit court of appeals may review matters outside the trial record to determine whether the error affected a defendant’s substantial rights or impacted the fairness, integrity or public reputation of the trial.
Appellant’s brief introduction,
When Mr. Greer was charged with, tried on, and convicted of possessing a firearm as a convicted felon, unanimous circuit precedent held that knowledge of one’s status as a person prohibited from possessing a firearm was not an element of 18 U.S.C. § 922(g). At trial, therefore, the government did not submit evidence or argue to the jury that Mr. Greer knew his status at the time of the offense, and the jury made no finding on that issue. While Mr. Greer was on direct appeal, this Court overturned the unanimous circuit precedent and held that such knowledge is an essential element. Rehaif v. United States, 139 S. Ct. 2191, 2197 (2019). The Eleventh Circuit affirmed Mr. Greer’s conviction on plain-error review. J.A. 116–22. By considering materials outside the trial record—materials that were never admitted into evidence nor presented to the jury—the Eleventh Circuit decided in the first instance what a jury “could have” found as to the knowledge-of-status element. Id. at 121. Mr. Greer challenges that novel approach to appellate review.
Courtesy of DMLHS, on 21 April 2021, the Supreme Court granted certiorari in, Hemphill v. New York. Noted Confrontation law expert Jeffrey Fisher represents the appellant. From the petition,
A litigant’s argumentation or introduction of evidence at trial is often deemed to “open the door” to the admission of responsive evidence that would otherwise be barred by the rules of evidence.
The first of several reasons for granting the writ has itself three parts.
Federal and state courts are deeply divided over the question presented..
And, CAAF anyone?
United States v. Mader. This case is relevant to government charging decisions and whether mistake of fact applies to a simple assault and battery.
During a farewell party in the barracks, Appellant burned three junior Marines, whom he supervised, with a cigarette in an apparent attempt to bond with them. Although these acts might have been charged as a violation of the Marine Corps general order prohibiting hazing under Article 92, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 892 (2012) (for which consent is not a defense), the Government elected instead to charge Appellant with three specifications of assault consummated by battery in violation of Article 128, UCMJ, 10 U.S.C. § 892 (2012) (for which consent generally is a defense). On review, the United States Navy-Marine Corps Court of Criminal Appeals (NMCCA) found that Appellant had an honest, albeit mistaken, belief that the three junior Marines consented to being burned, but then concluded that “the apparent consent was not lawful and hence not reasonable” because “[a]s a matter of law . . . under these circumstances a victim cannot consent to this type of injury.”
United States v. Henry.
A military judge granted the accused’s motion to suppress four statements as hearsay, rejecting the Government’s contention that they were excited utterances, or, in the alternative, present sense impressions. The Government appealed the military judge’s ruling to the United States Army Court of Criminal Appeals (CCA) under Article 62, 10 U.S.C. § 862 (2018). The CCA concluded that the military judge did not abuse his discretion and affirmed the trial court’s judgment. The Army Judge Advocate General then certified the issue to this Court. We hold that the military judge abused his discretion in refusing to admit the four statements under the excited utterance exception to the rule against hearsay.
United States v. Seeto. In the first try at this case the Appellant was found guilty of conduct unbecoming by the military judge and one specification of indecent conduct by members. AFCCA set-aside the findings and sentence. Upon rehearing, Appellant had a PTA and was sentenced by the military judge to a dismissal, four months, and forfeitures. IAW the PTA, the CA approved a sentence of no punishment, although by then the appellant had been in the brig for 235 days.
On appeal, the court found no error or prejudice from Appellant’s five issues from his rehearing: (1) whether Appellant’s guilty plea was improvident; (2) whether Appellant received ineffective assistance of counsel because trial defense counsel failed to advise him of the effect of his guilty plea with regard to waiver of appellate issues; (3) whether the charge and specification fail to state an offense; (4) whether the military judge erred in identifying the most similar analogous offense for Article 133, UCMJ, for sentencing purposes; and (5) whether the military judge erred in failing to grant a defense motion to dismiss for improper referral and unlawful command influence (UCI).
United States v. Beck. In this mixed plea MJA case the appellant was sentenced to 14 years six months plus a reprimand for one specification of attempted receipt of child pornography and two specifications of attempted sexual abuse of a child (the GP portion) and one specification of attempting to patronize a prostitute, one charge and specification of sexual assault, and one charge and one specification of receiving obscene visual depictions of a minor.
On appeal there were five issues raised: (1) whether the military judge erred in denying a defense motion to suppress evidence; (2) whether Appellant’s speedy trial rights under the Sixth Amendment and Rule for Courts-Martial (R.C.M.) 707 were violated; (3) whether Appellant is entitled to appropriate relief due to the convening authority’s failure to take action on his sentence as required by law; (4) whether the Government was preempted from charging an assimilated Article 134, UCMJ, offense, in violation of 18 U.S.C § 1466A, because prosecution for conduct of this nature is preempted by the enumerated Article 134, UCMJ, offense of receiving child pornography; and (5) whether the language used by the convening authority in Appellant’s reprimand made his sentence inappropriately severe.
After careful consideration, regarding the part of issue (2) concerning whether Appellant’s Sixth Amendment rights were violated, and issues (3) and (5), we have determined those issues do not warrant further discussion nor relief. With regard to the remaining issues, we find no prejudicial error to a substantial right of Appellant, and we affirm the findings and sentence.
United States v. Harris. The United States brings this interlocutory appeal under Article 62, asserting that the military judge abused his discretion in his application of Mil. R. Evid. 503 to exclude evidence of Appellee’s communications. The court finds the military judge did not abuse his discretion in excluding the evidence. Posch, S.J., concurs in part and in the result, Richardson, J., dissents.
The accused is charged with one specification of indecent recording and one specification of attempted indecent recording, on divers occasions. “the Government gave notice to the trial court of its intent to use Appellee’s admissions of “attempted and successful recording of [ER]” made during a meeting with the base chaplain, Chaplain (Major) RD.3 In a motion dated 6 July 2020, the Government specifically moved the trial judge to rule on the admissibility of communications disclosed by Appellee during a February 2015 meeting4 with Chaplain RD; Appellee’s wife, BB;5 his wife’s father, MR, and mother, GR; and BB’s sister, ER; where information related to the alleged offenses at issue was disclosed.”
In discussing the privilege, the court noted several factors to consider.
United States v. Barnes. The Appellant was sentenced to a Dismissal, forfeiture of $500.00 pay per month for three months, and a reprimand. She had pleaded guilty to three specifications under Article 112a (apparently fentanyl and phenobarbital) and one of theft of less than $500 value on divers occasions.
Appellant raises two issues on appeal: (1) whether trial defense counsel provided ineffective assistance of counsel during the presentencing and sentencing portion of her court-martial when he failed to investigate, prepare, and present extenuation and mitigation evidence, and (2) whether trial defense counsel provided ineffective assistance of counsel when he failed to serve discovery requests upon the Government. And the court noted the usual post-trial errors.
Yes, the appellant was a nurse and yes she was engaged in a not uncommon taking from the PYXIS drug dispenser on the ward for her own use, and likely faked some patient documents in the process.
United States v. Terwilliger. In this MJA case, Appellant was adjudged 24 months and a DD for conspiracy to distribute cocaine, an attempt to distribute cocaine, wrongful use of cocaine, and wrongful use of marijuana.
Appellant raised two assignments of error [AOEs]. First, Appellant asserts that the Government violated his due process rights under Article 10, UCMJ, by not taking immediate steps to bring him to court-martial after placing him in pretrial confinement [PTC]. Second, Appellant asserts that the military judge abused his discretion when he accepted a guilty plea without first inquiring into the impact the pretrial delay of 311 days had on Appellant’s voluntariness to accept the plea.
Writing for the court, Judge Deerwester, finds no error, no prejudice, and the findings and sentence are affirmed.
Read for a discussion of the factors to be considered in an Article 10, UCMJ, situation. Note that the court considered Appellant contributed to some of the delay. Quite some years ago the MCM had a list of factors for and against attribution of delay, factors since removed. One of the factors for the government was the accused’s “contribution” to the delay.
United States v. Lamore.
Appellant was found guilty, in accordance with his plea, of sexual assault and was sentenced to a DD and five years. Appellant asserts two assignments of error [AOEs]: (1) that sentence relief should be granted in light of the conditions of Appellant’s post-trial custody; and (2) that there was a substantial omission in the record of trial that created a presumption of prejudice that the Government did not rebut. We find no prejudicial error and affirm.
United States v. Powell. In this GP MJA case Appellant was convicted of two specifications of attempted sexual abuse of a child, for communicating indecent language to, and arranging to meet and have oral sex2 with, a fictitious individual named “Mackenzie.” He asserts three assignments of error [AOEs]: (1) the military judge erred in accepting Appellant’s plea of guilty to Specification 1 of the Charge with respect to lewd messages sent to Mackenzie because she failed to discuss with him the defense of mistake of fact as to Mackenzie’s age; (2) Appellant is entitled to sentencing relief for the Government’s failure to timely comply with the pretrial agreement regarding deferment and waiver of forfeitures and rate reduction; and (3) Appellant’s trial defense counsel were ineffective for admitting Defense Exhibit D into evidence. We find no prejudicial error and affirm.
United States v. Urbonas.
Appellant was convicted, pursuant to his pleas, of two specifications of attempted sexual abuse of a child Appellant was convicted, in accordance with his plea, of one specification of indecent language, Sentence adjudged 16 August 2019 by a special court-martial convened at Joint Base Pearl Harbor-Hickam, Hawaii, consisting of a military judge sitting alone. Sentence in the Entry of Judgment: reduction to E-1, forfeiture of $1,537 per month for 6 months, confinement for 6 months, and a bad-conduct discharge.
PENDING APPELLATE CASES
United States v. Rodriguez.
In a contested court-martial (MJA) for sexual assault, rape by force, attempted rape by force, aggravated assault, assault consummated by battery and obstruction of justice. “Appellant” was convicted on two charges and specifications of sexual assault and sentenced to a DD and three years.
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