Court of Special Appeals-Maryland
Respondek v. State. No double jeopardy, says the court relying on Gamble v. United States, ___ U.S. ___, 139 S.Ct. 1960, 1964 (2019). Note, part of the reasoning behind the initial Maryland sentence was input from his assigned DSO attorney, that he would be facing administrative elimination. Apparently, the GCMCA was not satisfied with the result and a court-martial ensued. See, Manual of the Judge Advocate General Manual (JAGMAN) JAGINST 5800.7G at 0124.b(1)(3).
This action requires us to determine whether Brad Respondek, a former lieutenant in the Navy, is required to register as a sex offender under Maryland's Sex Offender Registration Act ("MSOR") or, alternatively, the federal sex registration statute ("SORNA"). Mr. Respondek was first convicted in the Circuit Court for Montgomery County on two counts of possession of child pornography. Based on Mr. Respondek's exemplary behavior during his post-conviction probation period, the circuit court granted him a probation before judgment and excused Mr. Respondek from the obligation to register as a sex offender under MSOR as a result of that charge.
Ooops. Here is the NMCCA decision in his military appeal. No petition to CAAF.
Court of Appeals for the Armed Forces
Air Force Court of Criminal Appeals
United States v. Phillips. "This case has a lengthy appellate history." Most recently, the appellant was sentenced to three-months and a RIR. He had however served 285 days confinement, for abusive sexual contact--at least that's my read of the appellate history and several rehearings. This is a lingering Hukill case.
In 2016, AFCCA affirmed the original findings of guilty to aggravated sexual assault and abusive sexual contact and the sentence of one-year, a BCD, and RIR.
In 2017, CAAF set aside the findings and sentence based on Hukill. AFCCA then remanded the case to the CA for a new post-trial processing with "conflict free" defense counsel (?). The CA affirmed the sentence and the case was redocketed, in 2019, with AFCCA which again affirmed the findings and sentence.
The CAAF then reversed the aggravated sexual assault finding but affirmed the abusive sexual contact finding and returned the record with directions. In 2020, the AFCCA remanded the case to the CA authorizing a rehearing on the aggravated sexual assault and the sentence. The CA withdrew the aggravated sexual assault and ordered a sentence rehearing--a rehearing at which appellant was sentenced to three-months with 285 days confinement credit. AFCCA affirmed.
United States v. Vaughn. In this mixed plea case, Appellant was sentenced (by an officer panel) to HLWC, restriction, forfeitures, RIR, a reprimand, and a BCD. The MJ accepted a GP to dishonorable failure to pay just debts and an officer panel found guilt on one larceny, two wrongful appropriations, obstructing justice, and an additional failure to pay. Appellant raised,
The suppression issue relates to the obligation of a servicemember--the treasurer of an on base "booster club"-- to give Article 31, UCMJ, warnings.
The military judge concluded the booster club treasurer was not required to provide an Article 31 rights advisement to Appellant because the treasurer was not acting in an official law enforcement or disciplinary capacity and could not reasonably be considered as acting in such a capacity. The military judge found the treasurer was concerned she would be held personally responsible for any unaccounted funds and concluded her motivation for asking questions and seeking receipts from Appellant was “primarily based on her role as treasurer.” The military judge determined the treasurer was not directed to conduct any investigations or interrogations by law enforcement or her leadership and she took her concerns to security forces so an investigation could be conducted. The military judge determined Appellant’s statements to the treasurer were voluntary and he noted the two were of equal grade, the treasurer was not Appellant’s supervisor, and was not superior to Appellant in the chain of command.
The AFCCA continues the narrowing approach to who must advise of Article 31, UCMJ, rights--not unreasonably on the facts here. There are often "social" clubs or groups or organizations on base which are "approved." But, they are essentially, I think, considered to be "private" organizations for the purpose of Article 31, UCMJ (again based on the facts here). If CAAF takes the issue, it would be helpful for practitioners (and legal advisors dealing with on base organizations) to have an understanding of any line between private and governmental (or quasi-governmental) organizations.
The case also is of value in explaining the effects on good order and discipline when one servicemember borrows from another and then fails to pay. In addition to the victim, another NCO expressed "distrust" of the appellant and there is discussion of "deceit and evasion" toward another unit member as being "corrosive to unit cohesion." Stated otherwise, the TC admitted evidence of an effect on GoD rather than just argue it.
To me the resolution of the evidentiary objection seems unsatisfactory (based on the facts recited). It appears the evidence was not from a DFE. The defense did not, apparently, have access to the original texts. The prosecution and the court suggest however that "the Defense could have requested access to LB’s phone in discovery, and if denied, filed a motion to compel with the military judge."
Could the problem have been avoided and in the process avoid unnecessary litigation at trial and on appeal? It seems to me that the investigators or TC could have the victim take a screen shot of the text(s) and then download them. That can then be given to the defense as an R.C.M. 701 disclosure as the "best evidence" of statements of two witnesses--the victim and whoever she was texting. From there, a "transcript" seems unnecessary, and as the court says, the victim can authenticate the screen shotted text(s).
And, on the facts recited, could this actually be a issue under R.C.M. 914 once the witness testified?
United States v. Csady. The case is noteworthy because it appears to be the first under the new rules for an Article 69 review.
We have reviewed the action taken by The Judge Advocate General in this case and the Application for Grant of Review timely submitted to this court under Article 69(d)(1)(B), UCMJ, 10 U.S.C. § 869(d)(1)(B), dated 9 October 2020. * The court determines the application has not demonstrated a substantial basis for concluding that the action under review constituted prejudicial error. Article 69(d)(2)(A), UCMJ, 10 U.S.C. § 869(d)(2)(A).
AFCCA has begun posting the issues in to be argued cases--awesome!
21 October, United States v. Ramirez,
"Whether the military judge abused his discretion when he abated the proceedings in Appellee's court-martial."
10 December, United States v. Martinez. This case has been returned to the court after a remand to correct post-trial issues. See here; the initial filing raised eleven issues of which oral argument will be heard on the following.
ISSUE I: WHETHER THE ACTUAL BIAS AND/OR APPEARANCE OF PARTIALITY BY THE MILITARY JUDGE MANDATED RECUSAL TO ENSURE PUBLIC CONFIDENCE IN THE JUDICIAL PROCESS.
ISSUE II: WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN FAILING TO COMPEL KMT TO ANSWER RELEVANT QUESTIONS TO REMEDY HER OBSTRUCTION OF ACCESS TO WITNESSES AND EVIDENCE.
ISSUE III: WHETHER, IN LIGHT OF UNITED STATES V. JESSIE, 79 M.J. 437 (C.A.A.F. 2020), THIS COURT MAY CONSIDER MATTERS FROM ANOTHER COURT-MARTIAL IN REVIEWING A MILITARY JUDGE'S RECUSAL DECISION, WHEN APPELLANT DID NOT RAISE THOSE MATTERS AT HIS COURT-MARTIAL.
ISSUE IV: WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY NOT ORDERING THE PRODUCTION OF KMT'S MOTHER FOR TRIAL.
Army Court of Criminal Appeals
United States v. Badders. A panel convicted Appellant of sexual assault and the military judge sentenced him to 12 months and a dismissal. This is a government appeal because the MJ granted a post-trial mistrial.
Following a post-trial Article 39(a), UCMJ, session to address the defense's post-trial motion, the military judge declared a mistrial. In reaching her decision, the military judge relied on the "cumulative error doctrine," citing the cumulative effect of two evidentiary rulings she determined were erroneous yet non-prejudicial and her post-trial finding of implied bias linked to one panel member, Lieutenant Colonel (LTC) B, the 1st Cavalry Division Public Affairs Officer (PAO).
The Court finds the MJ's factual findings are not clearly erroneous. But found an abuse of discretion in a post-trial finding of implied bias as it relates to the cumulative error doctrine.
Navy-Marine Corps Court of Criminal Appeals
United States v. Smith. In this GP case, Appellant was sentenced to four months, a BCD, and RIR because he pled guilty to twice obstructing justice by destroying evidence. On appeal he challenged the providence of his plea. Appellant had been using his GoPro to spy on female Marines using the head. A female Marine observed him so he threw the GoPro and memory card over the side. He did that thinking there would be an investigation, which there was. Fortunately for the government Smith had showed at least one of the recordings to other Marines.
Appellant asserts there is insufficient factual basis for the second element—that Appellant had reason to believe there would be criminal or disciplinary proceedings pending—because the only evidence supporting even an investigation was the female voice remarking, “Is that a GoPro?” upon observing the GoPro protruding through the hole in the wall. Appellant argues that these facts do not make a criminal proceeding “inevitable,” as no one could know what the woman who observed the GoPro would do with that information. He further argues that what he stated during the Care inquiry supports that he was merely concealing his offenses, not obstructing justice, and that the military judge should have inquired further into this issue.
The findings and sentence were affirmed.
Possible appellate cases
United States v. SSG S.M. who is accused of child endangerment and obstruction of justice.
Cheers, Phil Cave
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