"Appeal — Summary Disposition
No. 21-0059/MC. U.S. v. Bradley M. Metz. CCA 201900089. On further consideration of the granted issue, 81 M.J. 148 (C.A.A.F. 2021), the briefs of the parties, and oral argument, we answer the issue in the affirmative. Accordingly, it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside, and the record of trial is returned to the Judge Advocate General of the Navy for remand to that court to conduct the three-pronged approach of Brown v. Illinois, 422 U.S. 590 (1975) in examining the effects of an unlawful apprehension upon a subsequent search. See United States v. Conklin, 63 M.J. 333, 338 (C.A.A.F. 2006); United States v. Khamsouk, 57 M.J. 282, 290-91 (C.A.A.F. 2002). On remand, the Court of Criminal Appeals may order affidavits or a factfinding hearing, if necessary. See United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2018), shall apply."
Register for Webinar access here if you can't make it in person.
Ott & Kamarck, Military Justice Disposition Delimitation Legislation in the 117th Congress. Congressional Research Service, October 18, 2021.
This report provides a framework for Congress to consider the three disposition delimitation proposals in the House and Senate FY2022 National Defense Authorization Act bills. The terms “delimited disposition” and “disposition delimitation” refer to any procedure that requires disposition authority for a specified offense to be transferred from a commanding officer to a judge advocate.
Cheers, Phil Cave
No. 21-0004/MC United States v. Schmidt was argued October 5th at CAAF. Appellant-Defendant was convicted by GCM of sexual abuse of a child under Article 120b(c). Appellant masturbated in the same room as the victim, JMT, while JMT pretended to be asleep. JMT heard Appellant’s masturbation and felt Appellant move around and touch JMT’s back and hand. There were several issues raised in oral argument. First, is this a general or specific intent crime? Second, does Article 120b require victim awareness? Third, was appellant entitled to a mistake of fact instruction to the panel?
The first issue is one of intent. The State asserts this is a general intent crime; the actus reus must be intentional but there is no specific intent to harm the victim or commit a lewd act upon the victim or in their presence. Appellant asserts that this is a specific intent crime. Appellant’s argument is persuasive. The statue reads: “intentionally done….in the presence of” 10 U.S.C. § 920b, suggesting a heightened intent requirement beyond the requisite mental state to commit the actus reus. See generally Wayne LaFave, 1 Subst. Crim. L. § 5.2(e) (3d ed.) The State says the defendant must intentionally commit the actus reus but does not need to intentionally commit the actus reus “in the presence of” the victim. This construction would find intent if someone commits the actus reus while genuinely unaware of the presence of a child in the room.
The second issue was whether Article 120(b) requires the victim to be aware of the defendant’s conduct. If “in the presence of” requires only physical proximity, the court can decide the case on this issue alone. Prior versions of the statute required victim awareness. Appellant reads in an awareness requirement to the statute, arguing that the point of this law is to prevent the child from being exposed to conduct that would corrupt their morals, and lack of awareness avoids the harm contemplated by the statute. The State does not recognize an awareness requirement, pointing to the plain language of the statute. While Black’s Law Dictionary does define “in the presence of” as requiring awareness, this is not the primary definition, and most other dictionaries do not have an awareness requirement. The State further argues that masturbating near a child while they sleep creates a risk they will wake up and be harmed by the conduct. Appellant countered that this reduces the mens rea from intent to recklessness. This issue is dispositive: if the court finds that there is no awareness requirement then Appellant is guilty regardless of the victim’s awareness and no mistake of fact defense would matter.
Appellant argues that he honestly thought JMT was asleep. Military judges are required to give instructions on any special defenses in R.C.M. 916 that may be at issue. R.C.M. 920(e). The trial judge did not give the panel instructions on the mistake of fact defense, and Appellant’s trial counsel did not object or request that these instructions be given. Appellant argues that these instructions should have been given since there was “some evidence” that Appellant had an honest mistake of fact, and Appellant did not waive these instructions when his counsel affirmatively stated that he had no objection to the proposed instructions, or in the alternative, that this failure to object was ineffective assistance of counsel. The State argues that this failure was an affirmative waiver, an intentional relinquishment of a known right, and forfeits the objection. Assuming arguendo Appellant forfeited his right to object, it is hard to imagine how this was not ineffective assistance of counsel. The mistake of fact defense is well known, it is even listed in the Rules for Courts-Martial, R.C.M. 916(j). Of course, this defense would only be prejudicial to the Appellant if the court finds an awareness requirement.
Navy probe finds major failures in fire that destroyed ship
"The report spreads blame across a wide range of ranks and responsibilities, from the now retired three-star admiral who headed Naval Surface Force Pacific Fleet — Vice Adm. Richard Brown — to senior commanders, lower ranking sailors and civilian program managers. Seventeen were cited for failures that “directly” led to the loss of the ship, while 17 others “contributed” to the loss of the ship. Two other sailors were faulted for not effectively helping the fire response.
Adm. William Lescher, the vice chief of naval operations, has designated the commander of U.S. Pacific Fleet to handle any disciplinary actions for military members. The Navy officials said the disciplinary process is just beginning."
"This is a case about the flagrant abuse, for obvious political purposes, of the due process
rights of a repatriated American POW...."
Comment: So, the question is, did the military courts give "full and fair consideration" to the claims. Think about the judicial bias claim. This was a claim based on facts discovered (via FOIA!) after briefing and argument--a claim that elicited an invitation to file a coram nobis. After the coram nobis was filed, the lower court denied it on the basis of it not being raised sooner. Full and fair consideration? Remember, the question is not whether you would grant relief, but whether the claim was considered. The answer to that seems to be an obvious "no."
GTMO commission defendant Al-Nashiri has filed a writ of mandamus in the DC Circuit challenging the military judge's ruling that torture-derived evidence is admissible outside of the case-in-chief.
Military Justice System Problems Go Beyond Sexual Assaults
"Retired Air Force Col. Don Christensen, a former military prosecutor and current president of Protect Our Defenders, a nonprofit dedicated to ending sexual violence in the military, said lawmakers need to overhaul the entire U.S. military justice system because it's archaic, with a framework that's inherited from a British system created by King George III and that has ties to ancient Rome."
Marine’s court-martial highlights the military straining to deal with partisan politics
"“What you’re seeing is everybody trying to get a piece of this last respected institution for their own purposes,” said [Jason] Dempsey, who is now an adjunct fellow at the Center for a New American Security. “People are going after and using these members of the military to advance their own political arguments.”"
Court of Appeals for the Armed Forces
The Daily Journal for Oct, 12, 2021, reflects that the court is clearing out the Brubaker-Escobar trailer park.
Also from the Miscellaneous Docket.
No. 22-0009/AR. AV2, Appellant v. John H. Cook, Colonel, U.S. Army, Appellee and Clinton Murray, Master Sergeant, U.S. Army, Real Party in Interest. CCA 20210409. Notice is given that a writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on application for extraordinary relief in the nature of writ of mandamus was filed under Rule 27(b) on this date.
Some of the filings and Orders at ACCA are here.
Military Rule of Evidence 513 gives patients a privilege to prevent others "from disclosing a confidential communication made between the patient and a psychotherapist ... if such communication was made for the purpose of facilitating diagnosis or treatment of the patient's mental or emotional condition." Mil. R. Evid. 513(a). As noted in the military judge's ruling, petitioner's PTSD questionnaire is an internal Veteran's Administration document used to assess claims for disability benefits, and not for the purposes of treatment. We also take note of the military judge's observations that the form refers to petitioner as a "claimant" vice a "patient" and the document contains the disclaimer, "Please note that this questionnaire is for disability evaluation, not for treatment purposes."
Air Force Court of Criminal Appeals
United States v. Harrington. An officer panel convicted appellant of involuntary manslaughter and communicating a threat; he also pled guilty to using cocaine and marijuana more than once. Appellant was sentenced to 14 years, a DD, and RIR. There are a few AOEs.
The findings and sentence are affirmed. Judge Cadotte concurred but wrote separately to state disagreement with the finding of no error in the conduct of the unsworn victim statements.
Navy-Marine Corps Court of Military Review
Since January 1, 2021, the Appellant in nine cases has withdrawn from appellate review--out of 244 cases "decided." There also have been 156 summary dispositions (generally meaning that there are no issues raised or of significant merit to be addressed.)
In 2020, zero appellants withdrew from appellate review.
In 2019, one appellant withdrew from appellate review.
Are these interesting numbers? Do they mean anything?
Worth the read
Prof. Corey Yung's Sex Crimes: Second Edition is now available online.
Note. "The included material is either public domain, Creative Commons, or included with the copyright owner's permission. The book itself is released under a Creative Commons license which you can find at the beginning of the book. I encourage editing, revising, and distributing under those permissive terms."
LtCol Scheller's guilty plea is reported here.
Among those testifying on his behalf were Rep. Louie Gohmert (R.-Tex.) and Rep. Marjorie Taylor Greene (R-Ga.), two of the most controversial members of Congress. They questioned why Scheller has been prosecuted for his actions when senior U.S. officials such as President Biden, Defense Secretary Lloyd Austin and Gen. Mark A. Milley, chairman of the Joint Chiefs of Staff, have not.
I had always thought that witnesses (or the accused) could not impeach the verdict?
And, see LTC (R) B. D. Bigler, A New Paradigm for Plea Agreements Under the 2016 MJA. ARMY LAWYER, No. 6, 2019 at 48.
One month forfeiture of $5,000 in pay and a letter of reprimand.
"Marine Corps Judge Col. Glen Hines said he was considering giving Lt. Col. Stuart Scheller two months of docked pay but decided to limit it to one month because Scheller spent nine days in pre-trial confinement, known as the brig, at Camp Lejeune in North Carolina."
Human Trafficking. For those who have been, or might be, involved in such cases, here is a good overview of applicable federal statutes. Unless Congress were to do away with Article 134(3), UCMJ, these are potential assimilated crimes.
Cheers, Phil Cave
Per Task and Purpose:
"Marine Lt. Col. Stuart Scheller was sentenced on Friday to receive a punitive letter of reprimand and forfeit $5,000 of one month’s pay after pleading guilty to all charges stemming from his public tirades against top military and civilian leaders, the Marine Corps announced."
Comment: This sounds about right. Prison time would have been absurd.
"Appeals - Summary Dispositions
No. 20-0358/AR. U.S. v. Carlos Muniz, Jr. CCA 20200092. On consideration of Appellant's petition for reconsideration and on further consideration of the granted issue, 80 M.J. 401 (C.A.A.F. 2020), we conclude that because Appellant was found guilty of at least one offense that occurred prior to January 1, 2019, the convening authority erred in taking "no action" on the sentence. However, because the charges were referred in this case after January 1, 2019, this error was procedural, and the United States Army Court of Criminal Appeals had jurisdiction to review Appellant's case. See United States v. Brubaker-Escobar, 81 M.J. __ (C.A.A.F. Sept. 7, 2021). Having reviewed the record of trial, we determine that the procedural error did not materially prejudice a substantial right. Accordingly, it is ordered that the petition for reconsideration is granted, that the Order in this case of June 29, 201 is vacated, and the judgment of the United States Army Court of Criminal Appeals is affirmed.
Comment: Whatever your views may be about a 4-judge court voting on petition grants, surely a summary disposition without a full court should provoke some skepticism. While short, this is a granted case with a reasoned decision and a judgment. Why are senior judges not being brought back to vote on these?
"One of Scheller's attorneys, Tim Parlatore, said in a phone interview that he could not yet get into the specifics of a pretrial agreement because some of the details are “still up in the air.” But he said the case began with Scheller demanding accountability from others, and it would “make him a hypocrite” if the Marine did not accept responsibility for his own actions.
The Marine hopes to avoid jail time and secure either an honorable discharge or a general discharge under honorable conditions.
“Our hope is for him to get a letter of reprimand, and no more,” Parlatore said."
Washington Post story here.
Update: He has now plead guilty. Read more here.
"For two decades following the 9/11 attacks, U.S. forces engaged in combat in Afghanistan and used implied congressional authorization of the “fundamental incidents” of war to conduct detention and military trials at Guantánamo Bay. Conflict in Afghanistan has ended, but detention and military commissions proceedings continue absent political will to end them. But that is no longer an option – as the Supreme Court held in Hamdi v. Rumsfeld, detention authority ends at the close of “active hostilities.” And as it held in Hamdan two years later, military commissions lack normal constitutional authority, depending on the availability of congressional and executive wartime powers for their existence. These trials, too, cannot legitimately continue post-conflict.
While pundits continue to propose winding down Guantánamo by seeking detainee transfers with “security assurances,” the law of war mandates prompt repatriation. There is no “bad dude” exception based on general threat perceptions – only an actual criminal sentence or pending charges justify delay. Both the law of war and the Constitution require that the U.S. must now either charge detainees in federal courts, extradite them to another country for prosecution, or promptly repatriate them. The Article provides recommended dispositions for the thirty-nine detainees remaining at Guantánamo at the time of the U.S. withdrawal from Afghanistan consistent with residual law of war mandates. It concludes by arguing that this outcome actually serves larger overall U.S. national interests – Guantánamo’s fiscal, legal, moral, and political costs have long outweighed any benefits."
Read the full article here.
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
Army Times: Two soldiers charged with murdering pregnant women in separate cases
"Two separate active-duty Army NCOs — one stationed at Fort Campbell, Kentucky, and the other at Fort Bragg, North Carolina — allegedly murdered women who were pregnant with their children."
One will be prosecuted by the Army. The other will be prosecuted by Georgia.
Stars & Gripes reports that LtCol Scheller is now pending Special Court-Martial on various charges. As to the potential sentence, see R.C.M. 1003(b)(8)(A), (c)(2)? Could that be part of the deal to get him released from PTC, and perhaps GP follow, and then a BOI waiver?
No. 21-0354/AF. U.S. v. Jamal X. Washington. CCA 39761. On consideration of Appellant's petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, and Appellee's motion to dismiss the petition, it is noted that the Court of Criminal Appeals affirmed some findings of guilt and set aside other findings of guilt and the sentence and authorized a rehearing. Under Article 67(c), Uniform Code of Military Justice, 10 U.S.C. § 867(c) (2018), this Court has jurisdiction to consider the petition. However, given the possibility of a rehearing, the petition is not ripe for review at this time. Accordingly, it is ordered that the petition for grant of review is denied without prejudice to Appellant's right to raise the matters asserted during the normal course of appellate review, and the motion to dismiss is denied as moot."
"No. 21-0319/AF. In re Damien G. Kawai. On consideration of the petition for extraordinary relief in the nature of a motion for compassionate release and reduction in sentence pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), it is ordered that the petition is dismissed for lack of jurisdiction."
Comment: This one looks like a pro se prisoner. Query: does the Prison Litigation Reform Act's "Three Strikes" rule apply to CAAF? Should it?
"(g) In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury." 28 U.S.C.A. § 1915 (West)
Reminder: GMJR is hosting a town hall in thirty minutes at the below link:
Admission free. The topic is "A View From the Bench."
I plan to ask the following question: "Is a judge annoyed by the 'kitchen sink' brief, in which a lot of issues are raised instead of only the best issues?" Many counsel feel pressured to raise issues so as to preserve them, but I wonder if this turns the judge against you. The adjudicator starts to feel as if he or she is merely beating back the various weak claims in order to finish the case.
Fed. Dist. Ct., S.D. California
United States v. Booker, No. 3:18-cr-02611-GPC, 2021 U.S. Dist. LEXIS 177641, 2021 WL 4244895 (S.D. Ca. Sept. 17, 2021).
Defendant moved to suppress the passcode to his iPhone 6 Plus, which was recorded by a Naval Criminal Investigative Service ("NCIS") agent during an interview, as well as any results of the subsequent searches of the iPhone 6 Plus using that passcode. Defendant alleges that the passcode was obtained in violation of his Fourth, Fifth, and Sixth Amendment rights as well as Miranda..
The court concludes that,
We have been discussing the practice of reservists serving as MJs while having full time employment as DOJ prosecutors. Concrete examples sometimes help. Consider this: link.
Lt. Col. Gleason will spend almost all of his weekdays standing up in federal court in North Carolina, starting his appearances with the words "Mr. Gleason for the United States." In the rare moments when he is acting as a reserve MJ, however, we expect him to shake off this habit and the attitudes that come with it, and to impartially judge a case in which "the United States" is on one side of the "V." The obvious, blatant conflict of interest is squarely framed by Gleason's own words:
“What can be better than representing the United States of America, and have the opportunity to do that every day, and have the opportunity to do the right thing. Not every job you can say that, but in this job, you do.” (emphasis added).
Presumably the "doing the right thing" part is serving as an MJ. What could be better, indeed, for Lt. Col. Gleason, than to be able to have a great career in DOJ and to also get to wear a robe once in a while. The accused who appear before him would likely answer that question differently. "What could be better?" A judge without the appearance of a conflict of interest.
-Current Term Opinions
Joint R. App. Pro.
Global MJ Reform
LOC Mil. Law