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.
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.
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.
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.
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.
No. 23-0001/AR. U.S. v. Cameron M. Mays. CCA 20200623. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:
WHETHER THE OFFENSE OF INDECENT VIEWING UNDER ARTICLE 120c, UCMJ, INCLUDES VIEWING A VISUAL IMAGE OF THE PRIVATE AREA OF ANOTHER PERSON.
The en banc published opinion in United States v. Strong, 5-4, deals with digital media and when it is being seized or is seized when chargin a violation of UCMJ art. 131e. CAAF, here we come? The “requirements” in U.S.C.A.A.F. Rule 21(b)(5)(A), (D) seem to be satisfied and the uniqueness of the charge and facts, seem grant-worthy. Read on.
Appellant was convicted of negligent homicide and preventing the authorized seizure of digital evidence, for which the sentence was three years, RiR, and a BCD.
Army CID executed a search authorization for Appellant's iPhone. Having physical possession, the agent tried to set the phone to airplane mode but couldn't make that happen. The agent then put the phone in a Faraday bag. Oh no! The manufacturer had mislabelled the bag and electronic signals could get through to the phone. This error allowed the Appellant to remotely factory reset the phone, destroyng the data sometime after CID had physical possession but before they made the DFE copy. CID figured out it was Appellant who had done the reset by DFE'ing other electronic devices.
by definition, any action to "prevent" a seizure of property must occur before the seizure of the property. As such, the statutory phrase, "are seizing, are about to seize, or are endeavoring to seize" contemplates the destruction, removal, or disposal of the targeted property either before the seizure or while the seizure is ongoing. As appellant observes, it is not designed to cover conduct occurring after the property is seized.
Finding the statute and MCM unhelpful the court found a different but analogous case.
However, in a different factual context, the Court of Appeals for the Armed Forces (CAAF) held that property is seized when there is "meaningful interference with an individual's possessory interest in that property." United States v. Hahn, 44 M.J. 360, 362 (C.A.A.F. 1996) (citing United States v. Jacobsen, 466 U.S. 109, 113 (1984)).
The court recognizes it is dealing with "evolving technology and the ethereal nature of digital evidence." It seems that a completed seizure of digital evidence requires the agents to have (1) completely prevented any remote access, or (2) made the DFE copy. The digits being the evidence the phone merely being the briefcase. The bright line is not when the agents have physical possession of the container which Appellant had argued, but physical possession of the digital media.
*Note to JSC, the court cites 18 U.S.C. § 2232(a) as the corollary federal statute and implies the facts here would not have presented a challenge under the elements of that statute.
Update: here is a new piece from SCOTUSblog about Shaw.
The court has granted the petition in Counteman v. Colorado, says SCOTUSblog.
Whether, to establish that a statement is a "true threat" unprotected by the First Amendment, the government must show that the speaker subjectively knew or intended the threatening nature of the statement, or whether it is enough to show that an objective "reasonable person" would regard the statement as a threat of violence.
The court has set for Conference, Shaw v. United States.
(1) Whether the jury clauses of Article III and the Sixth Amendment or the due process clause of the Fifth Amendment bar a court from imposing a more severe criminal sentence on the basis of conduct that a jury necessarily rejected, given its verdicts of acquittal on other counts at the same trial; (2) whether the Supreme Court‘s decision in United States v. Watts should be overruled; and (3) whether, in avoidance of the constitutional question, the rules of issue preclusion, as applied in federal criminal cases, bar imposition of an aggravated sentence on a factual predicate necessarily rejected by the jury at trial in the same case.
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