United States Supreme Court
Pin v. United States, a petition to watch.
QP: Whether an appellate court reviewing a cold criminal trial record may determine that an error at trial was harmless by applying an “overwhelming evidence of guilt” test that considers only the potential effect of the error on the government’s case and not on the defense.
This case raises an important and recurring question of criminal law: Can a trial error be held harmless based on the government’s “overwhelming evidence of guilt” without considering the error’s potential effect on the jury’s view of the defendant’s case? In holding that it can, the divided decision below deepens an entrenched lower-court split left unresolved in Vasquez v. United States (No. 11-199), dismissed as improvidently granted, 566 U.S. 376 (2012). Further, the decision conflicts with this Court’s precedents, and reviewing it will allow the Court to clarify a doctrine affecting more criminal appeals than any other.
Air Force Court of Criminal Appeals
United States v. Rodela. Oral argument is scheduled for 131 July 2021 (the briefs are not online).
United States v. Norman. In this GP case, Appellant was sentenced to a BCD, 40-days, $1000 F, RIR to E1, and a reprimand; for three specifications of distributing marijuana. After being returned to the court from a remand to correct post-trial matters, the finding and sentence were affirmed.
United States v. Garrett, III. Appellant was found guilty of, so he was sentenced to a BCD and stuff. This was because he was convicted of making a false official statement (a GP on this) and members found him not guilty of rape and obstructing justice. The case was submitted on its merits and a majority of AFCCA affirmed the findings and sentence. Judge Meginley concurred and dissented in part—the issue being sentence appropriateness. From the dissent:
The video of Appellant’s interview leaves no doubt that trial counsel sought to sensationalize Appellant’s false official statement to AFOSI with a grossly excessive recommendation of 18 months confinement, total forfeitures, and a bad-conduct discharge. Appellant’s denial of EL was inconsequential, as law enforcement had enough evidence to show that Appellant did in fact know EL, and confronted him with that evidence. Yet, asking for 18 months confinement for a 19-year-old young adult whose only conviction was for making an inconsequential false official statement to law enforcement lacked any meaningful credibility. As I noted in United States v. Palacios Cueto, “every attorney in a court-martial has a duty to uphold the integrity of the military justice system.” No. ACM 39815, 2021 CCA LEXIS 239, at *77 (A.F. Ct. Crim. App. 18 May 2021) (Meginley, J., dissenting) (unpub. op.) (quoting United States v. Voorhees, 79 M.J. 5, 15 (C.A.A.F. 2019)). Upholding the integrity of our system includes making reasonable, appropriate sentencing recommendations, and not merely engaging in bargaining and gamesmanship with the members in the anticipation of what trial defense counsel may argue on behalf of their client.
United States v. Walker. In this GP case Appellant was sentenced to a DD, 18-months, and stuff, including a reprimand. He had used, possessed, manufactured imported, and distributed drugs a lot of times; and he showed up for duty incapacitated.
United States v. Redd. In this GP case Appellant was sentenced to a BCD, five-days, RIR, and a reprimand. He sought relief because the case was not docketed with the court within 30-days of the CA action and but no relief was given.
In re Juillerat. A petition for a writ of habeas corpus and coram nobis which was denied.
Army Court of Criminal Appeals
United States v. Barnett. In this MJA mixed plea, Appellant pleaded guilty viewing CP and was also convicted of creating CP and also desertion. He was sentenced to eleven-years and a DD. His issue on appeal failed--the conviction of creating CP was legally sufficient. Appellant argued that it was the minor female who produced the CP (in compliance with his requests) so all he did was solicit the making of CP. CAAF anyone?
United States v. SIngleton. In this MJA GP case, Appellant was convicted of assaulting his spouse and being drunk and disorderly, for which he was sentenced to 25-days, a BCD, and RIR-E4. He received two-days PTC. His successful issue before the court was an automatic reduction to E-1 and automatic forfeitures was illegal. Let's see how long it takes for Finance to process and DFAS to process him to get any unlawfully withheld pay.
United States v. Lester. In this MJA case, Appellant was convicted of attempted sexual assault, for which he was sentenced to 24-months and a DD+. He was sentenced in May 2019. The court reduced the confinement to 22-months for dilatory post-trial processing of which the government conceded responsibility for 363 days of delay. A Pyrrhic victory because Lester's long past his FTD. Assuming no misconduct while confined that would lose him good time, his MRD would have been in January or February 2021.
Navy-Marine Corps Court of Criminal Appeals
United States v. Spykerman, __ M.J. ___ (N-M Ct. Crim. App. 2021). Appellant was sentenced to 98 days, a BCD, and stuff. He had pleaded guilty to transporting and conspiring to transport illegal aliens. On appeal, the court had eight AOEs before it.
United States v. Casuso. In this GP case, Appellant was sentenced to 25-years and a DD+. He had
attempted distribution of child pornography, twice attempted receipt of child pornography, conspired to produce child pornography, six times conspired to distribute child pornography, conspired to rape a child, sexually abuse of a child involving indecent conduct, "twenty specifications of sexual abuse of a child involving indecent communication, fourteen specifications of extortion, three specifications of distribution of child pornography, three specifications of possession of child pornography, one specification of production of child pornography, one specification of receipt of child pornography, two specifications of solicitation to produce child pornography, and one specification of obstruction of justice[.]" His sole assignment of error was sentence appropriateness.
In re Lewis. The writ petition for a certificate of innocence case.
United States v. Chambers. Appellant, "a high-achieving E-8" was sentenced to two-years and a BCD by members. He had been convicted of "conspiracy to commit larceny, larceny, and interstate transportation of stolen goods, stemming from the theft of approximately $800,000 worth of Gillette-brand razors from Marine Corps Community Services, MCRD, Parris Island." He raised abuse of discretion by admitting evidence that Appellant failed to pay income tax on the proceeds from selling the razors to a distributor in New York; the military judge abused his discretion by providing a “deliberate avoidance” instruction; and factual insufficiency.
United States v. Davis. Appellant was convicted of attempted sexual assault of a child and attempted sexual abuse. So he was sentenced to a DD and two years. Appellant raises three assignments of error [AOE]: (1) the evidence is not legally and factually sufficient to prove Appellant committed a substantial step toward committing attempted sexual assault of a child; (2) the evidence is not legally and factually sufficient to prove Appellant had the specific intent to commit sexual abuse of a child; and (3) the military judge abused his discretion when he denied the Appellant’s motion to merge the two specifications for sentencing on grounds of unreasonable multiplication of charges. After careful consideration of the record of trial and the pleadings of the parties, we find no prejudicial error and affirm.
In re Gilpin. Sentence adjudged 31 August 2018 by a general court-martial convened at Washington Navy Yard, District of Columbia, consisting of a military judge sitting alone. Sentence approved by the convening authority: confinement for 30 months and a dismissal. Finding of guilt and sentence set aside and dismissed with prejudice. United States v. Gilpin, No. 201900033, 2019 CCA LEXIS 515 (N-M. Ct. Crim. App. Dec. 30, 2019) (unpublished). Appellant applied for and was denied a Certificate of Innocence, citing 28 U.S.C. § 2513.
(a)Any person suing under section 1495 of this title must allege and prove that:
Maybe Appellate Cases
United States v. Army CID Agent. An Army CID special agent accused of killing his wife with poison and stalking another woman secretly traveled to Haiti three years ago as part of a murder plot, according to previously unreported charging documents. The charges against SSG L. at this point include murder, conspiracy and the attempted possession of a biological toxin for use as a weapon. SSG L. was also charged with stalking a woman near Fort Hood in the weeks after his wife died. He left threatening notes at her home and workplace, making the woman “fear bodily harm to herself,” charge sheets said.
United States v. SGM C.M. Army Times reports that a former command sergeant major at Fort Bragg, North Carolina, faces a second court-martial on sexual assault charges this October. And this time, prosecutors say he obstructed justice by asking an officer — who he is now also charged with sexually assaulting — to destroy evidence ahead of his first court-martial, during which he was acquitted of sexually assaulting a private first class. CM, now a master sergeant, also faces desertion charges over a retirement that prosecutors say he obtained by forging paperwork. The faux retirement allowed him to leave the Army despite an ongoing CID investigation that ultimately led to new charges of sexual assault, extortion and fraternization.
United States v. Martin. A SGM convicted of was convicted of failing to obey and order and extramarital sexual conduct and acquitted of abusive sexual contacts and maltreatment. He was sentenced to RIR-E-4 and six months.
Pending Appellate Cases
United States v. Alvarado. A court martial in Texas has found a Fort Bliss soldier guilty of sexually assaulting a fellow soldier, who was found dead in the barracks on New Year's Eve, 2020. One year prior, she had been sexually assaulted. Alvarado, 21, was facing multiple charges of sexual assault, aggravated assault and abusive sexual conduct involving several women. A military judge convicted him in some of those attacks, including the high-profile assault involving Pfc. Asia Graham, but acquitted him on others. He was sentenced to 18-years and three months.
United States v. King. An airman who brought the hallucinogenic drug LSD with him from the U.S. to Ramstein Air Base in Germany, where he used and distributed it, was sentenced Monday by a court-martial to nearly six months of confinement and given a bad conduct discharge. The airman assigned to the 721st Aerial Port Squadron at Ramstein since 2019, was sentenced by military judge Lt. Col. Charles G. Warren to up to 171 days of confinement on each of four charges of possessing, introducing to a U.S. military facility, distributing and wrongfully using LSD.
Worth the Read
As always, evidence Prof. Colin Miller has an interesting post about the reliability and admissibility of toolmark testimony by a firearms expert. Court Circumscribes Firearm Toolmark Testimony in Murder Trial.
HHJ Alan Large (TJAG, UK), Essential Features of an Independent Military Justice System. 25 J. COMM. MAG. & J. ASSOC., at 14, 3 June 2021.
The ABA has filed an amicus brief about individual voir dire of “jurors” in a high profile case.Possible jurors in high-profile cases should be individually questioned to determine what they have read and heard about a case and how it affected their attitudes, the ABA says in an amicus brief filed Monday. The ABA filed the brief in the pending U.S. Supreme Court case of Boston Marathon bomber Dzhokhar Tsarnaev, according to an ABA press release. Prosecutors are asking the high court to overturn a ruling by the 1st U.S. Circuit Court of Appeals at Boston that vacated the death penalty for Tsarnaev. The appeals court found that the trial judge did not adequately screen jurors to identify the media coverage that they had seen about the case.
More on CPO E. R. Gallagher, USN (Ret) and his book about the court-martial. Commentary from law of war expert Gary D. Solis, USMC (Ret).
Sherry F. Colb, United States v. Briggs: The Court Reaches a Wrong but Just Result. Verdict, 28 June 2021.
Logan & Prescott, Eds., Sex Offender Registration and Community Notification Laws: An Empirical Evaluation. Cambridge Univ. Press, June 2021. Prof. Berman explains,
Sex offender registration and community notification (SORN) surely numbers among the most significant social control methods of the past several decades. Although the Supreme Court in 2003 rejected two constitutional challenges to SORN laws (Connecticut Dept. of Public Safety v. Doe and Smith v. Doe), of late courts, including the Sixth Circuit Court of Appeals (Does v. Snyder, 2016), have cast a more critical eye, invalidating new generation SORN laws that have become more onerous and expansive in their reach.
Hope Hodge Seck, Acting SecNav Clears Record of Marine Officer Separated over Scout Sniper Urination Scandal. Military.com, 30 June 2021.
Seven years after Marine Capt. James Clement was found to have failed in his supervisory duties over snipers in Afghanistan and involuntarily separated from the Corps, the acting secretary of the Navy has moved to overturn the actions taken against him and grant him relief.
-Current Term Opinions
Joint R. App. Pro.
Global MJ Reform
LOC Mil. Law