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Today, Sgt. Bergdahl filed a writ of coram nobis and a motion to submit extra-record factual matters to ACCA.
Elizabeth BerecinResearch Fellow
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Dateline: 23 October 2020(as of 1000).
SUPREME COURT CAAF ACCA
On October 26, 2018, this court issued a decision in appellant's case, granting relief in part [and some specifications] were set aside. We then remanded the case and provided the same or different convening authority with three options[]. Of note, We now sua sponte review these matters for further consideration pursuant to an intervening change in law as it applies both to our October 26, 2018 decision and the February 12, 2020 action taken by the convening authority. After this court's October 26, 2018 decision, our superior court issued two opinions that impact our directive to the convening authority. See United States v. Gonzalez, 79 M.J. 466 (C.A.A.F. 2020); United States v. Wall, 79 M.J. 456 (C.A.A.F. 2020). As explained below, we find our October 26, 2018, decision impermissibly impugned appellant's right to appellate review, but in light of the totality of the record, the error warrants no further relief. This court's de novo review of the remaining findings of guilty as affirmed in our October 26, 2018 opinion are REAFFIRMED. The convening ACCA affirmed the findings and sentence of Second Lieutenant Robert J. Sharp (Appellant). Appellant was convicted contrary to his plea, of one specification of sexual assault, in violation of Article 120 UCMJ, 10 U.S.C. § 920. Appellant was sentenced to fourteen months confinement, forfeiture of all pay and allowances and a dismissal. Sharp opinion here. On appeal Appellant argued pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1983), that he was prejudiced by the erroneous admission of the polygraph evidence and that his defense counsel was ineffective for allowing such evidence to be introduced. ACCA after reviewing the record, held that Appellant’s assignments of error merited no relief. ACCA noted that Appellant affirmatively waived any objections to the admission of the polygraph evidence by making no objections to the proffered evidence. Additionally, the Court found that defense counsel’s failure to object was contemplative and not an accident. Even though ACCA found that Appellant waived this error, they still assumed arguendo that the objection was forfeited and not waived. Even assuming that the objection was forfeited, ACCA did not find that the proffered evidence was prejudicial to Appellant. In reaching this conclusion, ACCA noted the overwhelming evidence of Appellant’s guilt, namely his own confession. Regardless of if Appellant’s objection was waived or forfeited, ACCA found that he merited no relief. Peter-Gaye HowellIntern Civil suit against Gen. Hyten (based on sexual assault allegation) survives motion to dismiss10/23/2020 Reuters story here (with commentary from friends of CAAFlog Steve Vladeck and Don Christensen): In rare move, U.S. federal court allows military sexual assault case to continue Here is the district court order: 
Update: After some research, it is clear that this is not Hasan's first time appealing to CAAF. However, it does not appear that Hasan is actually appealing, rather it is his appellate defense counsel. At Hasan's trial, the military judge sealed materials as privileged between Hasan and his standby counsel. Normally, appellate defense counsel would be able to review those materials without judicial intervention, however, Hasan will not authorize access. Given this background and two writs being filed with CAAF, it is highly likely that appellate defense counsel is once again trying to gain access to Hasan's trial materials. "No. 21-0015/AR. Nidal M. Hasan, Petitioner v. United States Army Court of Criminal Appeals, Respondent and United States, Real Party In Interest. CCA 20130781. Notice is given that a petition for extraordinary relief in the nature of a writ of mandamus and brief in support were filed under Rule 27(a), on this date." Note: Hasan also filed a writ of prohibition earlier this month. Elizabeth BerecinResearch Fellow The below case makes me wonder what the administrative remedy process actually looks like for conditions of confinement claims. Has anyone represented a client in such a matter? A Westlaw search for these cases in the 10th Circuit and D. Kansas (where Leavenworth is) reveals only 9 reported cases that made it to federal court, and in many of them the case is dismissed for failure to exhaust. Brenner FissellEIC ACCA affirmed the findings and conviction of PFC Donald P. Laviolet. (Appellant). Appellant was convicted, in accordance with his pleas, of one specification of violation of a lawful general order, three specifications of assault consummated by a battery, one specification of assault upon a person in the execution of law enforcement duties, and one specification of disorderly conduct, in violation of Articles 92, 128, and 134, UCMJ. The military judge sentenced Appellant to a reduction to the grade of E-1, eleven months confinement, and a bad-conduct discharge.
LaViolet opinion case. There is a report of SGT Hatley being released from prison after 11 years confinement. The Army Times is reporting that SGT Hatley's release was possible after becoming eligible for parole last year. Notably, SGT Hartley was only eligible for parole because his original life sentence was reduced. The ACCA’s 2011 opinion is here. An enlisted panel sitting as a general court-martial convicted appellant, contrary to his pleas, of conspiracy to commit premeditated murder and premeditated murder, in violation of Articles 81 and 118, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 881 and 918. Appellant was acquitted of an additional offense of premeditated murder and obstruction of justice. The court sentenced appellant to reduction to the grade of E-1; forfeiture of all pay and allowances; confinement for life (with eligibility for parole); and a dishonorable discharge. See United States v. Hatley, No. 20090329, 2011 CCA LEXIS 124, rev. denied 71 M.J. 93 (C.A.A.F. 2012), cert. denied 568 U.S. 889 (2012). Any additional information welcome. Phil CaveMJ Editor The AFCCA affirmed the findings and sentence of Airman Austin L. Wilson, finding error but no material prejudice to Appellant’s substantial rights.
Appellant was convicted, pursuant to his pleas, of four specifications of wrongful use of controlled substances and three specifications of wrongful distribution of controlled substances, in violation of Article 112a, UCMJ. Officer members sentenced Appellant to a bad-conduct discharge, confinement for four months, forfeiture of $819.00 pay per month for four months, and reduction to the grade of E-1. The convening authority approved the sentence, but granted credit for 16 days of confinement, $125.00 of pay forfeiture per month for four months, and a one-grade reduction. Wilson opinion here. The AFCCA affirmed the findings and sentence of SSGT Lawrence J.D. Bowman, finding no error materially prejudicial to his substantial rights.
Appellant was convicted, contrary to his pleas, of two specifications of attempted sexual abuse of a child on divers occasions in violation of Article 80, UCMJ. The court-martial sentenced Appellant to a dishonorable discharge, confinement for one year, forfeiture of all pay and allowances, and reduction to the grade of E-1. The convening authority approved the sentence. Bowman opinion here. Oral arguments in the case of United States v. Briggs were presented to the Supreme Court telephonically on Tuesday, October 13. The consolidated defendants, three male military personnel who were convicted of rape in three separate incidents, claim that the UCMJ’s standard 5-year statute of limitations should have barred their prosecutions.
UP PERISCOPE
Dateline: 16 October 2020 (as of 1000). SUPREME COURT
Audio. Transcript. Post argument review on SCOTUSBlog. The NMCCA affirmed the findings and sentence of SSGT Antonio X. Zamora, finding that no error materially prejudicial to Appellant’s substantial rights.
Appellant was convicted of one specification of sexual assault and one specification of unlawful entry under Articles 120 and 134, UCMJ, contrary to his pleas. Zamora opinion here. Are there criminal offenses outside of Title 10 that apply only to military members (i.e., that have a personal jurisdiction element similar to UCMJ)? Answer: Yes. The following offense was created during the Reconstruction Era. My preliminary research indicates that it has never been litigated (there is certainly no appellate caselaw interpreting it). 18 U.S. Code § 592. Troops at polls "Whoever, being an officer of the Army or Navy, or other person in the civil, military, or naval service of the United States, orders, brings, keeps, or has under his authority or control any troops or armed men at any place where a general or special election is held, unless such force be necessary to repel armed enemies of the United States, shall be fined under this title or imprisoned not more than five years, or both; and be disqualified from holding any office of honor, profit, or trust under the United States." Brenner FissellEIC The AFCCA affirmed the findings and sentence of MSG Anthony W. Harris, Jr., finding no error materially prejudiced his substantial rights.
Appellant was convicted, contrary to his pleas, of one specification of sexual assault by causing bodily harm and one specification of abusive sexual contact in violation of Article 120, UCMJ. Harris opinion here. The traditional domain name for CAAFlog -- caaflog.com -- now redirects here. Thus, the site is accessible at either .com or .org.
The AFCCA affirmed the findings and sentence of Senior Airman Damon P. Linck, finding no error materially prejudicial to his substantial rights.
Linck opinion here. United States v. Harjung
Appellant was convicted of one specification of attempted sexual abuse of a child by communicating indecent language, one specification of attempted sexual abuse of a child by touching her breasts and licking her vulva, and one specification of attempted sexual assault of a child by penetrating her mouth with his penis. Appellant was sentenced to a dishonorable discharge, confinement for 18 months, and reduction to the grade of E-1.[1] On appeal, Appellant asks the Court to consider whether the evidence is legally and factually sufficient to support a guilty verdict for Specifications 2 and 3. The Court Affirmed the decision. Tomorrow, October 13, 2020, the Supreme Court will hear oral arguments in United States v. Briggs. United States v. Briggs will determine whether the statute of limitations should have barred Michael Briggs, Richard Collins, and Humphrey Daniels, from being prosecuted for rape. SCOTUSblog preview of United States v. Briggs here. Elizabeth BerecinResearch Fellow The Orders Project
GMJR Link Washington Post Article If you are a civilian attorney (and former judge advocate) interested in joining the volunteer list, email: ordersproject@protonmail.com UP PERISCOPE
Dateline: 9 October 2020 (as of 1000). SUPREME COURT
CAAF
No. 20-0286/AF. U.S. v. Jacob M. Ozbirn. CCA 39556. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue: WHETHER THE EVIDENCE THAT APPELLANT ASKED FOR "NAKED PICTURES" FROM ADULTS PRETENDING TO BE MINORS IS LEGALLY SUFFICIENT TO SUSTAIN A CONVICTION FOR ATTEMPTED RECEIPT OF CHILD PORNOGRAPHY.
ACCA affirmed the findings and sentence of SFC Robert L. Worsham, finding that Worsham's assignments of error warranted no relief.
Worsham opinion here. "No. 20-0372/AF. Paul D. Voorhees, Petitioner v. United States, Respondent. CCA 38836. On consideration of the petition for extraordinary relief in the nature of a writ of error coram nobis, it is ordered that the petition is denied."
We previously blogged about this here. |
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