Helems was convicted of one specification of false official statement, one specification of leaving the scene of an accident, one specification of reckless driving resulting in injury, one specification of negligent homicide, and one specification of involuntary manslaughter, for conduct arising from an episode of erratic and dangerous driving that occurred in the early morning hours of 1 January 2020 near Joint Base Charleston, South Carolina. A passenger in the vehicle died and another was injured. After the findings were announced, the military judge conditionally dismissed the negligent homicide (Article 134, UCMJ) upon the condition that the involuntary manslaughter charge (Article 119, UCMJ) survived appellate review. NMCCA holds that
Charge II (Article 111, UCMJ – leaving the scene of an accident) fail[s] to state an offense when it does not allege that Appellant’s vehicle struck anyone, nor does it allege that anyone other than a passenger in Appellant’s vehicle was injured[.]
The remaining findings were affirmed as was the sentence.
As expected, a writ appeal petition has been docketed for In re MW. I was going to post about this and discussions among some of us a few years ago about when might it be appropriate to try and have a military judge declare an SVC as a de facto party to the court-martial (and thus subject to R.C.M. 701 and Brady). We were sanguine about the motion getting off the ground. In re MW may move the ball a little--but let's see what CAAF does.
United States v. Alsobrooks. The court finds the MJ erred in
United States v. Gloverstukes. An Article 62 appeal. The military judge had dismissed two allegations of assault because they failed to state an offense under Article 128b (DV). They
did not expressly allege that appellant committed a "violent offense" against his intimate partner, they failed to state an offense. The specifications alleged:
ACCA finds the MJ erred. See United States v. Heng, No. ARMY 20210404, 2022 CCA LEXIS 377 (A. Ct. Crim. App. Jun. 24, 2022) (unpub.) for a discussion of the maximum sentence for 128b v. 128.
"Appellant’s case is before this court for the sixth time" begins the current decision in United States v. Rodriguez.
2013: Guilty (mixed pleas/members) to 15 specifications of violating a lawful general regulation; one specification of violating a lawful order; one specification of making a false official statement; one specification of consensual sodomy; two specifications of obstructing justice; and two specifications of adultery, one specification of aggravated sexual assault by causing bodily harm;4 one specification of abusive sexual contact by causing bodily harm; one specification of nonforcible sodomy;6 one specification of aggravated sexual contact by using strength; one specification of wrongful sexual contact; and one specification of indecent exposure. Sentenced to 27 years, DD, TF, RiR.
2015: Remand to correct post-trial errors.
2016: AFCCA dismisses several of the convictions and remands for a new sentencing hearing.
2017: Members sentence him to six years, DD, TF, RiR.
2019: CAAF sends back to AFCCCA on a Hills issue.
2020: TJAG sends back for rehearing; but that was "impractable" so CA approves six years, BCD, TF, RiR.
2021: AFCCA sends back down for post-trial errors.
2022: Back to AFCCA which affirms four years, BCD, TF, RiR.
UPDATEs. Link to Navy notice.
An alert reader has suggested the issue relates also to morphine and like poppy seed has been an ongoing scientific "fact" for years. I had my own experience many years ago with hemp oil where we defended on innocent ingestion and challenged the science. The reader has suggested these links here, here, here, and here.
Army TJAG has sent a Brady notice, not sure about the other Services. The full notice with research attached is at this link.
The last blanket Brady notice was, if remembered correctly, the infamous USACIL employee messing with urinalysis testing data. Also, we have this old notice on sample label problems at USACIL.
We all know to cite United States v. Banker, 60 M.J. 216, 224 (C.A.A.F. 2004), for the proposition that the military judge is to determine whether the evidence is relevant and falls into one of the listed exceptions in Mil. R. Evid. 412 -- not whether the evidence is true. Banker is back with a coram nobis petition.
The petition included, inter alia, an affidavit from Petitioner about the lingering effects of his conviction and its collateral consequences, and an affidavit from the named victim in Petitioner’s court-martial, LG. In that affidavit, LG recanted her trial testimony that supported the offenses of which Petitioner was convicted. Petitioner requests this court issue “a writ of error coram nobis setting aside his 9 February 2001 conviction, as it was based on false testimony.” Alternatively, Petitioner suggests that if the court is unable to determine LG’s credibility, it remand for a hearing in accordance with United States v. DuBay, 37 C.M.R. 411 (C.M.A. 1967).
Two judges decide a Dubay is appropriate, the third concurs in part and dissents in part.
Upon careful review of the record, we conclude a fact-finding hearing is appropriate to address two coram nobis threshold requirements, specifically Denedo factors (3) and (4). We allow that in consideration of the Denedo factors, evidence relating to LG’s veracity and Petitioner’s underlying request may be revealed. However, at this time we do not request findings of fact on the merits of Petitioner’s request for a new trial.
The dissenting judge writes
I agree with my colleagues’ decision to order further proceedings before the court may settle his petition and resolve whether his substantive claim on the merits warrants setting aside the findings and sentence. For this reason I join my colleagues in the decision to order an evidentiary hearing.
The court wants answers to the following questions.
(1) The circumstances surrounding LG’s recantation(s) of her testimony from Petitioner’s court-martial, including when Petitioner learned that LG was recanting. (Denedo factor (3)).
United States v. Cabrera, __ M.J. ___, 2023 CCA LEXIS 37 (N-M Ct. Crim. App. 2023). Raised in the course of appellate review. See also United States v. Cabrera, 80 M.J. 374 (C.A.A.F. 2020); United States v. Cabrera, No. 201800327, 2020 CCA LEXIS 155 (N-M Ct. Crim. App. May 12, 2020).
United States v. Murillo, No. 202200132 (N-M Ct. Crim. App. Feb. 3, 2023) (unpub.). Raised by petition for a writ.
In June 2018, Jacinto was convicted and sentenced for "rape of a child, sexual abuse of a child, and child endangerment by culpable negligence[.]"
Jacinto raised a number of appellate issues including that "(1) the military judge abused his discretion when he denied Appellant's motion to order the production of one of the child victims' mental health records or review them in camera[.]
In pretrial litigation, Appellant attempted to obtain medical records documenting Emily's week of inpatient treatment at the hospital. The military judge ordered the hospital to produce Emily's prescription records and her mental health diagnoses. He found the remainder of her records were privileged and that Appellant had not made a showing of vital necessity to require production or an in camera review.
United States v. Jacinto, 79 M.J. 870, 877-78 (N-M Ct. Crim. App. 2020). In its finding on the records issue, the court found that
The military judge applied the wrong legal standard in conducting his analysis. In his Conclusions of Law, he wrote that Appellant failed to demonstrate "a reasonable probability that the records contain information otherwise unavailable to the defense, and that the information sought is vital to the defense theory of the case." This standard "conflate[s] the constitutionally required standard envisioned in Mil. R. Evid. 412 [pertaining to the admission of constitutionally required evidence] with Mil. R. Evid. 513 [pertaining to the disclosure or in camera review of constitutionally required privileged materials]" which we have cautioned against. Because the military judge applied the wrong legal standard, we find he abused his discretion and turn to whether this materially prejudiced Appellant's substantial rights.
Id. at 880-81. At CAAF in July 2021, the court discusses what's in the record.
The record before us contains conflicting information about whether E.B. was experiencing psychotic agitation when she was hospitalized shortly after her May 2017 outcry against Appellant. On the one hand, the record indicates that E.B. was diagnosed with PTSD and major depressive disorder without psychotic features. On the other hand, the medical records indicate that E.B. was prescribed Thorazine for psychotic agitation. Because of this conflicting evidence, there is a crucial dispute between the parties about whether the medical records indicate that E.B.'s physician diagnosed E.B. with psychotic agitation and authorized attending medical personnel to administer Thorazine when needed, or that E.B.'s physician was merely indicating in the charts that medical personnel were authorized to administer Thorazine if needed in the event E.B. subsequently displayed symptoms of psychotic agitation.
United States v. Jacinto, 81 M.J. 350, 354 (C.A.A.F. 2021). The record was returned to NMCCA for further review. NMCCA appears to have taken some action including issuance of an Order. (The Navy website Court Filings & Records does not list Jacinto. A note to the site tells us
This section provides public access to filings and records pertaining to Navy and Marine Corps courts-martial referred on or after December 23, 2020, in accordance with 10 U.S.C. § 940a (Article 140a, Uniform Code of Military Justice). The documents released have been selected and redacted in accordance with the standards and criteria published in 140a, Uniform Code of Military Justice, JAG Instruction 5813.2 - Public Access to Court-Martial Dockets, Filings, and Records Pursuant to Article 140a, UCMJ and the Privacy Act. Filings and court records at the trial court level will be published as soon as practicable after the certification of the record of trial.)
A 26 January 2023 Journal entry at CAAF includes an Interlocutory Order.
No. 20-0359/NA. U.S. v. Salvador Jacinto. CCA 201800325. On consideration of Intervenor E.B.'s motion for a permanent stay of the order of the lower court, motion for a hearing, and motion to file under seal Appendix C of the motion for a permanent stay, it is ordered that said motion to stay is hereby dismissed and that the Court's order issued December 22, 2022, temporarily staying the lower court's order is hereby vacated. This Court lacks jurisdiction over this matter because in United States v. Jacinto, 81 M.J. 350, 355 (C.A.A.F. 2021), the Court remanded both the record and the case to the United States Navy-Marine Corps Court of Criminal Appeals and because a writ petition is not before the Court. That said motion for a hearing is denied as moot; and that said motion to file under seal Appendix C of the motion for a permanent stay is denied as moot.
Almost five years after conviction, Jacinto's eight year term of confinement has not become final or modified. A very very rough estimate shows his MRD is sometime in 2024.
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
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