Court of Appeals for the Armed Forces #4
In United States v. St. Jean, _ M.J. ___ (C.A.A.F. 2023), the court decided
Whether the military judge erred by excluding evidence under Mil. R. Evid. 412 and by preventing the defense from presenting evidence of participation and consent during the res gestae of the charged sexual assault.
The court clarifies that the evidence proferred is likely not res gestae, as I interpret their decision. So the court is not addressing evidence that can be credibly shown to be res gestae. That seems a significant distinction for future application of the case to facts.
It is worth clarifying that Appellant is challenging the exclusion of only two pieces of evidence: (A) evidence that Appellant and MC engaged in consensual kissing the day before the alleged sexual assault; and (B) evidence that Appellant was seen with hickey marks the day after the alleged assault. The motions judge excluded the consensual kissing evidence on the basis that it was substantially more prejudicial than probative under M.R.E. 403. The trial judge excluded the hickey evidence because Appellant failed to proffer evidence suggesting Appellant received the hickeys during the alleged assault.
I'm not seeing a discussion of how the defense tried to tie the hickeys to the affirmative defense of mistake as to later consent--perhaps they did but that is not reported in the CAAF decision. The ACCA decision is here. The only issues discused by ACCA were admission of HLD, improper TC argument, and insufficiency to one of the charges. The remaining "multiple claims of error" received the standard footnote that the errors were without merit. The defense at trial seemed to be proceeding solely on the theory that the hickeys showed evidence of consent. Ultimately, it looks like the defense waived off on the issue at the time of trial anyway.
As explained above in greater detail, during trial the Government objected when the defense attempted to elicit testimony about the hickeys, and the trial judge excused the panel to conduct an Article 39(a), UCMJ, session. Appellant sought to explain that the witness would testify as to having observed hickeys arising from the alleged sexual assault, which would constitute res gestae evidence. The trial judge asked the defense what evidence was before the court that the hickeys were from the night of the offense. Defense counsel ultimately stated that it “could move on from this” and “could possibly readdress it later.” However, defense counsel seemingly never returned to the matter, and the trial judge never affirmatively excluded the evidence. Under this circumstance, there was no ruling by the trial judge to be appealed, and hence nothing for this Court to review. See, e.g., United States v. Welch, 25 M.J. 23, 27 (C.M.A. 1987) (noting the military judge did not make a final ruling excluding evidence).
Kafka's unfinished novel unearthed
Reading Kafka can at times feel like self-inflicted torture. But who knew he could be prescient about events in modern criminal justice--the H. G. Wells of crime.
Simple Justice, a regular read, has uncovered a criminal justice story worthy of Kafka.*
(*Scott Greenfield's term.)
In the scheme of impossible demands, the sex offender registry concept has more than its share. Much as there may be empathy for certain crimes and criminals, sex offenders remain pariahs as an incident to rape culture and believing women. While there’s empathy for murders, there’s nothing but hatred and damnation for anyone who’s saddled with the “sex offender” characterization, whether deserved or not. So in 2021, Attorney General Merrick Garland decided to add another impossibility to the mix, because who doesn’t hate sex offenders?
It appears the federal district judge has somewhat agreed.
The Court agrees with Plaintiffs that the practical effect of the Rule, in conjunction with 18 U.S.C. § 2250, has done exactly what is forbidden by the Constitution: “to declare an individual guilty or presumptively guilty of a crime.” Patterson, 432 U.S. at 210. In the Rule, the Government disavows any obligation or burden “to establish that a registration jurisdiction’s procedures would have allowed a sex offender to register or keep the registration current in conformity with SORNA” before prosecuting the individual for failure to do what it acknowledges is impossible. 86 F.R. at 69867. Doing so subverts the procedural safeguards deeply rooted in our history and constitutional framework.
The Pacific Legal Foundation has this to say on the case.
Represented by PLF free of charge and joined by the Alliance for Constitutional Sex Offense Laws (ACSOL), John is challenging Congress’ unconstitutional delegation of authority to the Attorney General to issue SORNA requirements—a clear violation of the non-delegation doctrine and separation of powers.
BTW, I'm told that Simple Justice has some leads out on an unfinished story by Lewis Carroll, initially titled 'Alice in KafkaLand.'
Air Force Court of Criminal Appeals
An alert reader noticed we'd not yet posted about (the unpublished opinion in) Goldsmith--the case is of some consequence. May be a CAAF candidate. Appellant's issue #3 is worthy of note.
"[T]he military judge erred in considering certain matters in a victim’s unsworn statement[.]"
A military judge sitting as a general court-martial convicted Appellant, in accordance with his pleas and pursuant to a plea agreement, of three specifications of willfully disobeying a superior commissioned officer, one specification of wrongfully discharging a firearm under circumstances to endanger human life, one specification of communicating a threat, two specifications of assault consummated by a battery, and four specifications of domestic violence in violation of Articles 90, 114, 115, 128, and 128b, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 890, 914, 915, 928, 928b. After the military judge announced Appellant’s sentence, the convening authority withdrew and dismissed one specification of attempted murder in violation of Article 80, UCMJ, 10 U.S.C. § 880, and one specification of domestic violence in violation of Article 128b, UCMJ, as required by the plea agreement. The military judge sentenced Appellant to a dishonorable discharge, confinement for 84 months, reduction to the grade of E-1, and a reprimand. The convening authority approved the sentence in its entirety, but deferred Appellant’s reduction in grade until judgment was entered and waived Appellant’s automatic forfeitures for a period of six months.
So what was the problem?
Air Force Court of Criminal Appeals
In United States v. Reimers, the Appellant challenges the constitutionality of UCMJ art. 134(3).
For the first time on appeal, Appellant argues that Clause 3 of Article 134, UCMJ (“Clause 3”), is unconstitutional as applied to servicemembers because it denies equal protection of the law. Appellant argues that a defendant in civilian federal court enjoys more constitutional rights than does a military accused, such as entitlement to grand jury indictment, jury size, and the requirement of a unanimous jury verdict. Consequently, according to Appellant, the Government’s election of the military forum under Clause 3 deprives him and other servicemembers of equal protection under the law because civilian federal prosecutors declined to prosecute those offenses. Appellant asks this court to set aside and dismiss Specification 2 of Charge VI (making a silencer) and Specification 5 of Charge VI (selling a firearm to a known felon), which were charged under Clause 3.
In In reKK, the complaining witness sought a writ because the military judge denied a government requested continuance so she could be available for trial. (The writ of course gets such a continuance.) The court finds no basis to issue a writ.
What Petitioner has not identified is any right to have the accused’s courtmartial dates set such that they accommodate either her or her victims’ counsel’s schedule. Instead, Petitioner’s potential absence more directly impacts the ability of the Government to present its case, which is to say that if Petitioner’s live testimony is important to the Government’s case, then it is the Government which would seek relief in order to ensure Petitioner’s presence. In this case, the Government requested a continuance for this very reason. That request was denied, and the Government has not sought relief from our court. Just as Petitioner has no legal ability to force the Government to call her as a witness, Article 6b, UCMJ, does not provide Petitioner with authority to challenge—on the Government’s behalf—the military judge’s substantive ruling on the continuance motion with respect to such matters as her availability. Victims involved in court-martial proceedings do not have the authority to challenge every ruling by a military judge with which they disagree; but they may assert their rights enumerated in Article 6b, UCMJ, in the Manual for Courts-Martial, and under other applicable laws.
DoD General Counsel
You may remember the ProPublica litigation (still ongoing) regarding contemporaneous media access to court filings in Mays. In August, NIMJ sent a letter to DoD General Counsel about the lack of transparency in court-martial proceedings. The issue is one of transparency in courts-martial and appeals which Congress has begun to address with UCMJ art. 140a.
Here is some new guidance from the DoD General Counsel. Also the current status report on the ProPublica litigation. As you can see, all the information in the report is publicly available on PACER to anyone with an account.
United States v. Grubb, __ M.J. ___ (N-M Ct. Crim. App. 2023) is interesting because the court finds the military judge erred in admitting Mil. R. Evid. 414 evidence and reverses the findings and sentence. An "enlisted" panel had convicted Grubb of two sexual assaults of a child and the MJ sentenced him to four years, RiR, and a DD.
Two specifications of sexual assault of a child were preferred against Appellant. These specifications related to victims Ms. Bravo and Ms. Lima. An additional charge also alleged a violation of Article 120b, UCMJ, but related to Ms. Sigma, Appellant’s high school girlfriend. All charges and specifications were alleged to have occurred before 1 January 2019.
The evidence suggested that Appellant and Ms. Sigma had sexual relations prior to his enlistment and perhaps at least once while on active duty. The defense objected to the Mil. R. Evid. 414 evidence and
argued that the motion to exclude was supported by Kentucky state law and a Naval Criminal Investigation Service interview of Ms. Sigma. Appellant’s position was that Kentucky law did not criminalize his relationship with Ms. Sigma because the age difference between them was within the range protected by Kentucky law and, therefore, the sexual relationship did not amount to an offense.
1. Is the accused charged with an act of child molestation?
2. Does the proffered evidence show the commission of a crime at the time of the acts.
3. Is the evidence relevant.
And of course the evidence must survive the Mil. R. Evid. 403 balancing.
The military judge, in ruling on the defense’s Mil. R. Evid. 414 motion, found the issue of whether sexual relations with Ms. Sigma occurred before or after Appellant enlisted in the Marine Corps to be relevant only as to jurisdiction, noting in his ruling that “…whether or not the uncharged misconduct…occurred before or after the accused’s enlistment…would only resolve the…jurisdictional issue of whether the accused could be tried for his alleged misconduct at a court-martial.” We disagree. The military judge’s bundling of events relating to Ms. Sigma under a general concept of “sexual assault of a child” led to legal errors in his Mil. R. Evid. 414 and Mil. R. Evid. 403 analysis.
Turning to the post-enlistment sex, the court says in part
The Supreme Court found that a trial court did not need to make a finding by a preponderance of the evidence that the acts occurred in order to admit such evidence. Instead, this type of evidence should be admitted if there is sufficient evidence such that the jury could conclude, based on a preponderance of the evidence, that the defendant committed the similar act. Put differently, the trial court only needs to assess whether there is enough evidence for a reasonable jury to reach the conclusion under a preponderance standard.
The court finds the MJ's balancing was erroneous and prejudicial. See United States v. Kerr, 51 M.J. 401, 405 (C.A.A.F. 1991) for the four factors to be examined for the presence or absence of material prejudice.
Court of Appeals for the Armed Forces
Federal Register Notice of Proposed Rules Changes from the Department of Defense on behalf of the U.S. Court of Appeals for the Armed Forces. There is a 30-day comment period.
The proposed changes would affect Rules 3A, 13(b), 13A, 15(b), 19(a)(7)(B), 21, 24(b), 27(b), 36, 37(b)(2) and 39(a), as well as the Guidelines for Electronic Filing of Pleadings.
The court's current rules can be found here.
Thanks to GMJR for the alert on this pending rules change.
Young's Post-Trial Review (2023 ed.)
CAAF's newest judge, Tia Johnson, heard the first oral arguments of her career as a CAAF judge today and yesterday. The arguments this week are the first with a full bench in many months. We can finally expect some stability, as the current five-judge group will be together for the next five years.
Westminster (UK) Magistrates Court
The decision in Rex v. Hayes may be of interest to those serving in the UK, and to legal advisors.
1. The Defendant has been charged with an offence of causing death by careless driving on the 26th of August 2022.
The NATO SOFA gives the visiting state
primary  to jurisdiction as regards offences ‘arising out of any act or omission done in the performance of official duty’ lies with the sending state[,]
The visiting state must file an appropriate official duty certificate, which ensued here from the Air Force.
The prosecution challenged the certificate given on behalf of Hayes.
The judge notes the Air Force was given the opportunity to participate in the hearing but did not do so--I wonder why. From my overseas assignments I learned that it was policy to do everything possible to get U.S. jurisdiction, even where the SOFA said primary jurisdiction is with the host nation.
[A] certificate issued by or on behalf of the appropriate authority of the sending country, stating that the alleged offence, if committed by him, arose out of and in the course of his duty as a member of that force or component, as the case may be, shall in any such proceedings as aforesaid be sufficient evidence of that fact unless the contrary is proved.
Oh, what did the judge decide about jurisdiction. Well, examining the evidence the judge holds that the certificate is rebutted. Driving home from work in PT gear, coming from PT was not in the course of official duty, thus Hayes is subject to UK prosecution.
We thank Brigadier (Ret) Paphiti at Aspals for bringing this case to our attention.
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
-Current Term Opinions
Joint R. App. Pro.
Army Crim. L. Deskbook