Air Force Court of Criminal Appeals

Has your license to practice law been suspended or otherwise restricted? It probably doesn't matter for court-martial purposes, but it might be good to know.

United States v. Cisti

September 2020, Captain (Capt) CP is certified under Article 27(b).

15 March 2021, Capt CP's state bar suspended him (for reasons unwritten).

29 November 2021, Capt CP administered the oath to the Appellant’s commander when charges were preferred.

19 January 2022 Capt CP represents the government at the Appellant's Article 32.

In March 2022, the SJA discovered the problem, and Capt CP was removed from legal duties, but no action was taken to revoke his 27(b) certification. (The unstated assumption is that Capt CP had forgotten to inform his supervisors of this suspension.)

The MJ denies a defense motion to dismiss based because 

an attorney “must be both qualified and designated” as a judge advocate in order to perform judge advocate functions, and when Capt CP had lost his standing to practice law in March 2021 he was no longer qualified to serve as a judge advocate. Therefore, the Defense reasoned, Capt CP was not eligible to administer the oath to Lt Col P in November 2021, nor to represent the Government at the preliminary hearing in January 2022, and the Charge and specifications should be dismissed. In response, the Government contended that because Capt CP’s designation as a judge advocate had not been withdrawn, he remained eligible both to administer the oath to Lt Col P and to represent the Government at the preliminary hearing.

AFCCA finds no fault with the MJ's ruling because TJAG is the only person who can revoke the certification, which had not been done even at the time of trial. The court does not cite the United States v. x, , by NMCCA, which decides similarly when it comes to a military judge. But it appears there is a small Capt CP trailer park.

As I was writing this, a new FR notice came across the transom of proposed DoN changes to the RRP.

This notice of appearance must: (a) State the jurisdiction(s) in which they are licensed and eligible to practice law, (b) Certify that they are in good standing with each jurisdiction, (c) Certify that they are not subject to any order disbarring, suspending, or otherwise restricting them in the practice of law, and 

Perhaps a change would be for the services to require military counsel to also file a notice of appearance in each case, as does the U.S. Attorney in federal court, rather than the current practice.

Check for the maximum sentence, do it pretrial.

United States v. Mcleod

​Though not specifically raised by the parties, the court notes that the sentence entered for Specification 10 of the Additional Charge, attempted assault consummated by a battery upon a child under the age of 16, includes a confinement term of five years running concurrent to all charges and specifications. However, the maximum lawful confinement term for this offense was two years.

No harm here because the sentence was to run concurrent with others. Read in conjunction with United States v. Harrington on remand for a reminder of sentence-appropriate issues. And note further CAAF's opinion on the issues raised that led to the remand.

For appellant's

When conducting our review, we not only consider the appropriateness of the entire sentence, but also “must consider the appropriateness of each segment of a segmented sentence.” United States v. Flores, __ M.J. __, No. 23-0198, 2024 CAAF LEXIS 162, at *7 (C.A.A.F. 14 Mar. 2024).

United States v. Harrington

On remand because

the CAAF found in Appellant’s favor on two of those issues: (1) the military judge abused his discretion by denying Appellant’s request to instruct the panel members on the maximum punishment available for each of Appellant’s offenses of conviction, and (2) the military judge abused his discretion in allowing the Government trial counsel to participate in the delivery of the unsworn statement of the homicide victim’s parents.

The option on remand is a sentence rehearing or reassessment by the court, and the court chooses rehearing. S.J. Richardson concurred, and her reasoning is more helpful for understanding why a remand was necessary. Here is a link to the earlier AFCCA 2021 decision with more facts of the case.

1. CAAF found that "by denying Appellant’s requested instruction, the military judge deprived Appellant of a powerful argument: that the President had deemed even the worst involuntary manslaughters to warrant no more than ten years of confinement. Given the focus placed on the involuntary manslaughter conviction by the Government during sentencing and under the specific facts of this case, we cannot be confident that the military judge’s denial of the requested instruction did not substantially influence the adjudged sentence."

2. CAAF concluded the “the primary problem[ was] that trial counsel’s participation in the presentation of the unsworn victim statement blurred the important distinction between sentencing evidence presented by the Government and nonevidentiary sentencing matters presented by the victim” and the question-and-answer format from the witness stand “mimicked the presentation of actual sworn testimony that the panel members would have experienced during the rest of the trial, raising the potential for confusion among the members about the status of the statements.” 

United States v. Portillos

Speedy, but not too speedy.

 Appellant raised two issues on appeal: (1) whether the victim’s written unsworn statement contained impermissible content; and (2) whether Appellant is entitled to new post-trial processing because the convening authority decided on action nine days after the announcement of sentence and before Appellant submitted matters pursuant to Rule for Courts-Martial (R.C.M.) 1106, and decided on action and deferment requests before Appellant’s five days to rebut the victim submission of matters had expired.

A bit more on victim impact statements.

Appellant asserts that the victim impact statement was improperly written on a letterhead for Department of the Air Force Trial Judiciary. Furthermore, he noted that Paragraph 2 of the victim’s statement discusses information regarding Appellant’s relationship with EP “before the charged events.” Finally, Appellant takes issue with all of Paragraph 10, which states, “I don’t want any other women to have to endure the same pain I have. My hope is that he will not do this to anyone else again and that he can learn from this. That’s why I believe he deserves the most amount of punishment.” Trial defense counsel did not object to the victim’s unsworn statement. The military judge sua sponte stated he would disregard the first sentence of Paragraph 10. 

Note. Waiver applies when "Trial defense counsel’s repeated assertion that the Defense had no objection to Court Exhibit A waived Appellant’s objection on appeal."

In this case, "Although [the court has] the ability to pierce Appellant’s waiver," not here. See United States v. Chin, 75 M.J. 220, 223 (C.A.A.F. 2016) (citation omitted). 

Cheers, Phil Cave