Court of Appeals for the Armed Forces
United States v. Tinsley. The appellate briefs are available here for more background on the case.
This seems to be the correct result. Had CAAF decided that the MJ erred in granting a continuance request, they would by implication punished an accused for the failure of the government to provide timely discovery.
This Court previously reviewed this case in 2019. United States v. Cooper, 78 M.J. 283 (C.A.A.F. 2019). At that time, we concluded that Appellant/Cross-Appellee Yeoman Second Class (YN2) Cooper had waived his right to request individual military counsel (IMC). Id. at 287. We then remanded the case for further review. Id. On remand, the United States Navy-Marine Corps Court of Criminal Appeals (NMCCA) held that YN2 Cooper had received ineffective assistance of counsel. United States v. Cooper, 80 M.J. 664, 666 (N-M. Ct. Crim. App. 2020). As a consequence, the NMCCA set aside the findings and sentence in this case and authorized a new trial. Id.
The Judge Advocate General of the Navy, believing that the NMCCA had reached the ineffective assistance of counsel issue in an improper manner, then certified the following question to this Court: “Did the lower court err applying United States v. Chin, 75 M.J. 220 (C.A.A.F. 2016), (a) as a prerequisite to considering ineffective assistance of counsel, and (b) to disregard the knowing, voluntary, and R.C.M. 905 waivers, of individual military counsel?” United States v. Cooper, 81 M.J. 135 (C.A.A.F. 2021). YN2 Cooper also has appealed, asserting alternative grounds for affirming the NMCCA’s decision.1
Air Force Court of Criminal Appeals
United States v. Fulps. Appellant pled guilty to twice assaulting police, and was sentenced to 15 days confinement, RiR, and a BCD. "On appeal, Appellant asserts that his sentence to a BCD was inappropriately severe “in light of the victim requesting leniency for the Appellant in his post-trial submission.” Finding no prejudicial error, we affirm."
United States v. Dodson. Appellant pled guilty to failure to obey an order, using MDMA, domestic violence, and extramarital conduct, for which the MJ sentenced him to 10 months confinement and RiR. The issues on appeal were,
(1) Did the Government effectively denied Appellant’s right to a meaningful appeal under Article 66, by administratively separating him after he exercised his right to direct appeal but before this court completed appellate review.
(2) Did the USAF cede personal jurisdiction over Appellant by administratively separating him prior to resolution of his appeal.
(3) Whether Appellant is entitled to appropriate relief for the Government’s failure to include his enlisted performance reports, admitted into evidence as Prosecution Exhibit 3, in the record of trial.
(4) Whether it was prejudicial error for a Government sentencing witness to testify about matters outside the scope of proper aggravation evidence.
(5) Relief for the CA's failure to take action on the sentence as required by law.
Finding no prejudicial error, the court affirmed the findings and sentence.
United States v. Marable. Appellant pled guilty to conspiracy to obstruct justice and three obstructions of justice, for which he was sentenced to 12 months, TF, RiR, and a DD. On appeal, Appellant raises three issues.
(1) The CA failed to withdraw and dismiss with prejudice a specification of accessory after the fact to involuntary manslaughter, and so violated a material term of the plea agreement--error, and one to be corrected.
2) The MJ abused his discretion by allowing TC to make an improper sentencing argument.
(3) Inappropriate sentence in light of the adjudged sentence in a similar case.
We find that the military judge erred in permitting trial counsel to argue that Appellant attempted to minimize his culpability in discussions with his family and that the military judge abused his discretion in overruling the Defense’s objection to this argument.
The record does not suggest any basis for the argument. Although, had there been the accused's attitude to his offenses could be relevant. United States v. Anderson, 25 M.J. 779 (A.C.M.R. 1988). Here there was no prejudice, even thought he MJ got it wrong and the court could not rely on the presumption that an MJ is presumed to know and apply the law.
The co-actor got 14 years and the argument was that the DD was inappropriately severe. Note that the court's analysis took into account United States v. Jessie, 79 M.J. 437 (C.A.A.F. 2020) and United States v. Willman, 81 M.J. 355 (C.A.A.F. 2021). The court concludes that for sentence comparison cases, not just appropriateness, outside the record material may be considered. The court distinguishes its opinion in United States v. Finco, No. S32603 (f rev), 2021 CCA LEXIS 603 (A. F. Ct. Crim. App. 16 Nov. 2021) (unpub. op.).
At a minimum then, it appears the Air Force court requires there be references to another actor to the same or sufficiently and "closely related." So, first you have to show grounds for sentence comparison and only then may the court consider extra record material.
Ultimately the court interprets Appellant's issue to be a "clemency request," and relief is denied.
United States v. Driskill. In this mixed plea case, the MJ accepted a plea to wrongful possession of obscene cartoons. The members convicted him of raping and sexually abusing a child. He was sentenced to 40 years and nine months, RiR, and a DD. There were nine issues.
(1) Legal/factual sufficiency--rape and sexual abuse of a child.
(2) MJ abused discretion--allowing a Government expert to testify about future impact on the named victim.
(3) MJ erred when he denying request to sever the charge for wrongful possession of obscene cartoons from the charge and specifications for rape and sexual abuse of a child.
(4) Possession of obscene cartoons violated the prohibition against double jeopardy.
(5) MJ erred denying motion for appropriate relief due to unequal access to the named victim.
(6) MJ erred--failed to compel an expert consultant for Appellant.
(7) Legal insufficientcy--wrongful possession of obscene cartoons.
(8) Sentence appropriateness.
(9) Conviction for rape and sexual abuse of a child was factually and legally insufficient due to errors in the child forensic interview.
(10) CA failure to act on the sentence as required by law.
(11) Unreasonable post-trial delay.
Decision: "We find no relief warranted for a facially unreasonable post-trial delay. We defer addressing Appellant’s other assignments of error until the record is returned to this court for completion of our Article 66(d) review." "Our remand returns jurisdiction over the case to a detailed military judge and dismisses this appellate proceeding consistent with Rule 29(b)(2) of the Joint Rules for Appellate Procedure for Courts of Criminal Appeals. JT. CT. CRIM. APP. R. 29(b)(2)."
Army Court of Criminal Appeals
United States v. Tinsley, __ M.J. ___ (A. Ct. Crim. App. 2021). Appellant was convicted of sexual assault by a panel, which sentenced him to RiR, reprimand, DD. He raised four issues. One is related to experts for the defense, another to Mil. R. Evid. 412, another to Mil. R. Evid. 513, and another not listed, and Grostefon.
The findings and sentence are approved.
This case is important to read for its discussion of defense expert requests for a expert consultant and a expert witness. As we know, and as the court reminds us, there are different analyses or standards to be applied.
Although the test governing a defense request for an expert to testify at trial is distinct from the test applied to a request for a consultant, the two tests are often intermingled and confused. See, e.g. United States v. McGuiness, ARMY 20071204, 2010 CCA LEXIS 96, at 12 (Army Ct. Crim. App. 19 Aug. 2010) (mem. op.)
(Emphasis added) citing United States v. Langston, 32 M.J. 894, 896 (A.F.C.M.R. 1991).
For the consultant the defense must show.
( 1) why the expert assistance is needed.
(2) what the expert assistance would accomplish for the accused.
(3) why defense counsel is unable to gather and present the evidence that the expert would be able to develop.
(4) In addition to addressing these three factors, an accused seeking the appointment of an expert consultant must demonstrate that the denial of such assistance would result in a
fundamentally unfair trial.
For the expert witness the test requires the defense to show,
( 1) The expert is qualified.
(2) There is a proper subject matter of the expert testimony.
(3) A proper basis for the expert testimony.
(5) Reliability--based on methodology and conclusions.
(6) Probative value--Mil. R. Evid. 403 balancing test.
We know from United States v. Griffin, 50 M.J. 278 (C.A.A.F. 1999) that within the United States v. Houser, 36 M.J. 392 (C.M.A. 1993), analysis the Daubert factors are also part of the equation.
(1) Whether the theory or technique can be (and has been) tested.
(2) Whether the theory or technique has been subjected to peer review and publication.
(3) The known or potential error rate.
(4) The existence and maintenance of standards controlling the technique's operation.
(5) The degree of acceptance within the relevant scientific community.
For Tinsley, the failure to identify the two distinct requests caused an adverse result at trial and on appeal. The court found no error in denial of a consultant request, but found the request for an expert witness was not before the court. Clarity in motions is good, lack of clarity is not good.
The underlying defense motion was styled as a "Defense Motion to Compel Expert (Dr. [JD])" (hereinafter "Expert). Although the motion's opening and closing paragraphs requested that the court "compel the production of' and/or appoint Expert as "an expert consultant and witness," for the most part the motion focused on why Expert should be appointed as a consultant, and included a detailed analysis of the three Gonzalez factors. There was no discussion of the Houser framework, and indeed the only references in the motion to expert testimony were:
Because the defense did not object to the MJ's limitation of the issue or attempt to make it clear they wanted a consultant and a witness, the court was led to conclude that,
See Lloyd, 69 M.J. at 100-01 ("We find that the military judge did not abuse her discretion by failing to adopt a theory that was not presented in the motion at the trial level."); United States v. Carpenter, 77 M.J. 285, 289 (C.A.A.F. 2018) ("[O]ur review for error is properly based on a military judge's disposition of the motion submitted to him or her not on the motion that appellate defense counsel now wishes trial defense counsel had submitted.") (emphasis in original).
AFCCA said they could, but would not liberally construe the motion or argument in favor of the defense and against waiver or forfeiture in this case. See n. 3.
Coast Guard Court of Criminal Appeals
United States v. Thomas. At Appellant's special court-martial the MJ accepted the guilty plea to three specifications of indecent conduct and sentenced him to five months and a BCD. Appellant's case having been summitted on its merits, the findings and sentence were affirmed.
Possible appellate cases
Task & Purpose continues reporting on the USS BONHOMME RICHARD fire, along with a copy of the charge sheet; the allegations are for hazarding a vessel and arson. Reporting suggests that there may be an alternative cause for the fire and the "evidence" against the accused appears rather thin.
Worth the read
Strange bedfellows, the NACDL and Heritage Foundation. Briam W. Walsh and Tiffiany M. Joslyn, Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law. May 2020. The Fact Sheet is a useful guide.
The National Association of Criminal Defense Lawyers and The Heritage Foundation jointly undertook an unprecedented look at the federal legislative process for all studied non-violent criminal offenses introduced in the 109th Congress in 2005 and 2006. This study revealed that offenses with inadequate mens rea requirements are ubiquitous at all stages of the legislatives process: Over 57 percent of the offenses introduced, and 64 percent of those enacted into law, contained inadequate mens rea requirements, putting the innocent at risk of criminal punishment. Compounding the problem, this study also found consistently poor legislative drafting and broad delegation of Congress's authority to make criminal law to unaccountable regulators.
This "fact" is interesting because the Armed Services Committees decides what is an offense under the UCMJ.
Congress's expertise for crafting criminal offenses resides in the House and Senate Judiciary Committees. Only these committees have express jurisdiction over federal criminal law, yet of the 446 criminal offenses studied, over one-half were not sent to the House or Senate Judiciary Committees for review and deliberation.
Riana Pfefferkorn, We Now Know What Information the FBI Can Obtain from Encrypted Messaging Apps. Just Security, December 14, 2021.
What user data can U.S. federal law enforcement obtain from providers of encrypted messaging services? A recently disclosed January 2021 document from the Federal Bureau of Investigation (FBI) supplies a concise summary with respect to nine different “secure messaging” apps. It shows that with legal process, the FBI can get various types of metadata, and in some cases even stored message content. Exactly what’s available, though, varies widely by app.
Cheers, Phil Cave
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