Air Force Court of Criminal Appeals

5/31/2024

United States v. Donley

(2) whether the military judge committed prejudicial error by directing the members, without proper instruction, to review their completed findings worksheet and discuss whether six of the seven remaining members agreed on their findings when the panel president was excused before announcement of the findings[.]

The president of the panel was excused after the written findings were given to the military judge but before they were announced in open court--the president had come down with COVID (as had the three TCs).

With regard to the timing of the deliberations, voting, and announcement on the findings, this case presents a cascade of circumstances relatively unforeseeable outside a global pandemic. In a matter of hours, three trial counsel were rendered unavailable to proceed due to illness in the middle of member deliberations. Exacerbating the situation, the court president was excused due to his unavailability/illness after findings had been reached, but before those findings were announced. To say that these circumstances are rare is a dramatic understatement. Despite the rarity of the circumstances, the Rules for Courts-Martial provide for the proper way ahead. The military judge did not adhere to the applicable rules and committed error. Where the military judge went astray was after the president had been excused. The military judge, albeit with trial defense counsel’s affirmative request to do so, erred when he instructed the members as follows:

I’m going to send you back into the deliberation room with the findings worksheet and instruct you to review your findings. In assessing whether or not reconsideration of the verdict is necessary, the panel should ensure that six of the seven remaining members concurred in a vote of guilty for any specification for which your original votes resulted in a finding of guilty.

At the time the military judge provided this instruction, the members had reached their findings. Both the military judge and trial defense counsel were under the impression that because the number of members had been reduced from eight to seven, that before they could announce their findings, six of the remaining members must have concurred in any finding of guilty. We disagree. The initial vote was final absent a request for reconsideration. We emphasize also that the excusal of a court member after a valid vote does not ipso facto require that a military judge instruct the court members as to “reconsideration” procedures.

AFCCA however finds no prejudice.

Carlisle v. United States

In this Article 62 appeal, the Government challenges the military judge's decision to dismiss some of the specifications.

Appellee is charged with one specification of possession of child pornography, one specification of viewing child pornography and one specification of distributing child pornography. The Government alleges that Appellee possessed, viewed, and distributed sexually explicit and obscene anime videos and images. Pretrial, Appellee moved to exclude 33 videos and images the Government contends form the basis of the charged offenses. The military judge granted this motion and excluded these charged videos and images ruling that they were irrelevant because these videos and files did not meet the definition of child pornography in accordance with Article 134, UCMJ. The Government appeals the military judge’s ruling excluding the 33 videos and images. They argue that these anime videos and images do meet the definition of child pornography in accordance with Article 134, UCMJ. We hold that whether the videos and images meet the definition of child pornography as set forth by the President is a factual question to be resolved by the factfinder at trial. Therefore, the military judge erred when he failed to apply the relevance standard as set forth in Mil. R. Evid. 401, usurped the factfinder’s role, and excluded this evidence.

United States v. Vanzant, M.J. _ (A.F. Ct. Crim. App. 2024)

The first part of the case walks through the statutory changes to a sentenced accused's appeal rights. The second part of the case does not address an issue being raised within AFDAD that the

However, the Government has moved this court to dismiss the appeal, contending we lack jurisdiction to review the Appellant’s appeal under Article 66(b)(1)(A), UCMJ.
. . . .
Citing N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), and several federal circuit decisions, Appellant contends 18 U.S.C. § 922(g) is unconstitutional as applied to his case. See United States v. Daniels, 77 F.4th 337 (5th Cir. 2023); Range v. AG United States, 69 F.4th 96 (3d Cir. 2023); United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023), cert. granted, 143 S. Ct. 2688 (2023). Appellant requests this court hold the 18 U.S.C. § 922(g) firearm prohibition “unconstitutional as applied to him and order correction of the STR and E[o]J to indicate that no firearm prohibition applies in his case.”

Rather than address the issue, AFCCA decides it has no jurisdiction to answer the question.

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