Ed. note. Check out the NMCCA Rivera opinion.
Court of Appeals for the Armed Forces
For those who like to do issue spotting for their trial cases, CAAF has now started to populate the next seasons oral argument schedule. Of use to trial practitioners are the briefs.
Air Force Court of Criminal Appeals
United States v. Chuar. Bad-conduct discharge, confinement for 6 months, and a reprimand. officer members found Appellant guilty of one specification of wrongful use of cocaine and one specification of wrongful use of methamphetamine, both in violation of Article 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a.1 Appellant elected to be sentenced by a military judge.
Appellant raises two assignments of error: (1) whether the military judge erred in failing to exclude statements Appellant made to her mental health provider, pursuant to Mil. R. Evid. 513, and in failing to exclude the derivative evidence obtained as a result of those statements; and (2) whether the military
Appellant’s case is before this court a second time. In his initial appeal, on 16 May 2018 Appellant submitted his case on its merits with no assignment of error. However, on 12 September 2018, this court issued a Show Cause Order because a sentencing exhibit, Prosecution Exhibit 7, was missing from the record of trial.
No issues were raised on the first appearance at AFCCA. After this court returned the record, the military judge signed a certificate of correction, and the record, now complete, was again docketed with the court. Appellant then moved for leave to file two supplemental assignments of error. First, Appellant claimed unlawful command influence (UCI) in the manner by which the Government corrected the record. Second, Appellant claimed prejudice for the time it took the Government to obtain the certificate of correction from the military judge.
The failure of Government personnel to include Appellant’s EPR, admitted as a prosecution exhibit, was not shown to be anything other than simple negligence. The record yields no reason to believe the omission was intentional, much less deliberate. Cf. United States v. Bavender, No. ACM 39390, 2019 CCA LEXIS 340, at *67, *68 n.28 (A.F. Ct. Crim. App. 23 Aug. 2019) (unpub. op.) (where the Government docketed “[a] plainly deficient record” deliberately omitting evidence on which it relied to convict).
United States v. Muller. (After remand.) GP to s ecstasy), and use and distribution of cocaine in violation of Article 112a, UCM. Bad-conduct discharge, confinement for 9 months, and reduction to E-1.
United States v. King. (An 86 page opinion by S.J. Lewis.) Dismissal and confinement for 3 years. Members convicted Appellant one specification of sexual assault of his biological daughter, and one specification of committing an act of sexual penetration upon a blood relative, JK, a non-capital offense in violation of the New Jersey Code of Criminal Justice, as assimilated into federal law.
Like Muller, a case of missing documents from the ROT, but handled differently.
Appellant raised 14 issues through counsel, which we have reworded and reordered: (1) whether the record of trial is incomplete as two court rulings are missing; (2) whether the military judge erroneously denied an unreasonable multiplication of charges motion;2 (3) whether a reservist military judge erred by not recusing himself because of his civilian employment with the United States Department of Justice; (4) whether the court-martial was improperly constituted; (5) whether the evidence is legally and factually insufficient; (6) whether the military judge erred in admitting prior consistent statements of JK; (7) whether trial defense counsel provided ineffective assistance of counsel on multiple grounds; (8) whether the military judge erred in allowing JK to reference improper victim impact evidence in her Rule for Courts-Martial (R.C.M.) 1001A unsworn statement; (9) whether the mandatory dismissal is unconstitutional; (10) whether the Government’s unauthorized enrollment of Appellant’s family and friends in the Victim Witness Assistance Program (VWAP) represents cruel and unusual punishment or warrants sentence appropriateness relief; (11) whether the convening authority improperly directed that the waived mandatory forfeitures be paid to JK rather than to Appellant’s wife, SK, and their three minor children; (12) whether the Government’s prohibition against Appellant having contact with his minor children during posttrial confinement violated his constitutional rights and warrants sentence relief; (13) whether the Government’s refusal to provide Appellant with his prescribed medications during post-trial confinement represents cruel and unusual punishment or warrants sentence relief; and (14) whether the cumulative effect of the errors substantially impaired the fairness of Appellant’s trial.
United States v. Brown. : Dishonorable discharge, confinement for 34 months,
and reduction to E-4. A general court-martial composed of officer and enlisted members convicted of one specification of attempted sexual assault and one specification of sexual assault.
Appellant raises nine issues on appeal: (1) whether Appellant’s convictions are legally and factually sufficient; (2) whether the military judge erred in denying the Defense’s motion to sever charges; (3) whether the military judge provided erroneous instructions on findings; (4) whether trial counsel’s closing argument was improper; (5) whether trial defense counsel were ineffective; (6) whether the military judge erred when she refused to permit the Defense to confront the victim with evidence contained in the Sexual Assault Forensic Examination (SAFE) report; (7) whether the non-unanimous verdict violated Appellant’s Fifth Amendment3 and Sixth Amendment4 rights in light of Ramos v. Louisiana, 140 S. Ct. 1390 (2020); (8) whether Appellant is entitled to relief for unlawful post-trial punishment that is not raised in the record of trial and does not amount to cruel or unusual punishment in violation of the Eighth Amendment5 or Article 55, UCMJ, 10 U.S.C. § 855;6 [we find they warrant neither further discussion nor relief. See United States v. Willman, ___ et. al.] and (9) whether Appellant is entitled to relief for unreasonable appellate delay
Navy-Marine Corps Court of Criminal Appeals
United States v. Rivera, __ M.J. ___ (N-M Ct. Crim. App. 2021).
A GP SPCM, for disobedience of an officer, use of cocaine, and introduction of cocaine, for which Appellant was sentenced to 60-days, a BCD, and forf. Appellant asks that the BCD be set aside because of post-trial processing delay. So why a published opinion?
CAAF judicially established three post-trial deadlines that, if not met, would trigger analysis of speedy trial and post-trial rights as set forth in the Supreme Court’s decision in Barker v. Wingo. The CAA—which was then the terminal “action” in the post-trial processing—must be taken within 120 days of the completion of trial (Moreno I); the ROT must be docketed by the service court of criminal appeals within 30 days of the CAA (Moreno II); and appellate review must be completed and a decision issued within 18 months of docketing the case at the court of criminal appeals (Moreno III). Since then, this Court has virtually eliminated Moreno III violations and the Navy and Marine Corps have done likewise with Moreno I and II violations.
In a footnote, the Court notes that " the last three Reports to Congress (FY18, FY19, and FY20) from the Services, this Court has had only four Moreno III violations out of 868 cases reviewed. There have only been 24 Moreno I and 4 Moreno II violations, respectively. Reports available at Joint Service Committee on Military Justice website: https:/jsc.defense .gov/Annual-Reports/ . This change is also owed to the personnel reorganization, case assignment process, and leadership of “Code 45,” the Navy and Marine Corps Appellate Defense Division."
The court then discusses how the Military Justice Act of 2016 appears to have changed the analysis.
A final question was whether CAAF’s Moreno timelines still mattered or had they been superseded by MJA 16. The final question is more easily answered, as we now hold that Moreno I and Moreno II were both superseded by MJA 16, but the other questions were not quite as easily answered.
The court then discusses how the ACCA and AFCCA have addressed the "new" posttrial processing requirements; tells us what Navy TJAG has done.
On 6 September 2019—more than two months prior to announcement of sentence in this case—the Navy Judge Advocate General [JAG] issued an Instruction on Post-Trial Processing for the Navy and Marine Corps. With respect to timelines, the Instruction provides:
The court then analyzes the 1 day delay and finds no prejudicial error.
United States v. Daugherty. An enlisted panel sentenced Appellant to seven-months, a BCD, and RIR. The court finds no prejudicial error and affirms.
Appellant was convicted, contrary to her pleas, of conspiracy to obstruct justice, failure to go to her appointed place of duty, and false official statement, in violation of Articles 81, 86, and 107, Uniform Code of Military Justice [UCMJ],1 for conspiring with another Sailor to manufacture injuries and falsely reporting she was drugged and raped to avoid getting in trouble for missing a training class.
On appeal Appellant raised several issues about the members, denial of challenges, and IAC for not challenging serveral members.
At trial, Seaman Recruit Warren testified that after waking up late Appellant told Seaman Recruit Warren to “bruise her up” because she could not “go in this late without something being wrong with [her].” Appellant admitted making the false report, but testified that it was Seaman Recruit Warren’s idea and that she only participated in the scheme because she was afraid of Seaman Recruit Warren.
Possible appellate cases
United States v. MSG M.M. A senior supply NCO assigned to U.S. Army Special Operations Command will soon face a general court-martial for allegedly stealing tens of thousands of dollars while deployed to the Middle East in 2017.
Worth the read
The Army will not bring criminal charges against Fort Sill, Oklahoma, drill sergeants and instructors accused of sexual assault earlier this year, officials announced in a Thursday media conference. “Military prosecutors determined...they had no probable cause to believe the allegations occurred,” said Maj. Gen. Kenneth Kamper, the installation’s commanding general. Army Times.
Wisconsin National Guard. Prosecutors have not filed criminal charges for about 30 sexual assault cases mishandled by the Wisconsin National Guard following an 18-month investigation, the state Department of Justice said Thursday in releasing its findings and recommendations. The state justice department reviewed the cases for 18 months and determined that while no criminal charges have been filed, the cases involved conduct that was “degrading, harassing, and highly inappropriate in any setting.” Three of the cases reviewed had already been prosecuted. In seven cases, the district attorney declined to bring charges. In at least 12 cases, the statute of limitations had expired. Three cases were not referred due to requests by a survivors, in one case there was not sufficient information to conduct a review and in seven the department determined a prosecution was not likely. Military Times.
Cheers, Phil Cave
-Current Term Opinions
Joint R. App. Pro.
Global MJ Reform
LOC Mil. Law