United States v. MasseyMassey has two issues of interest: (1) admission of a witness’s deposition after the MJ finds the witness unavailable, and (2) multiplicity. The MJA trial was held at Lakenheath, UK, on charges of wrongfully soliciting: the rape of a [two month old] child, the production of child pornography, and the distribution of child pornography. The events were communications over social media. The events came to light because the victim/mother contacted the appellant's fiancee/spouse, which according to the deposition led to this exchange. “Regarding the picture Appellant asked for on 24 July 2018, Ms. BM asked Ms. MN, “just to clarify[,] what did he mean by I still want a pick of your kid with his penis in your mouth[?]” Ms. MN replied, “he’s asked for stuff like that before.” Ms. BM asked, “Did you do it?” Ms. MN answered, “[n]ever” and added, “He wants to f[**]k his kids.” Ms. BM later informed Ms. MN that she had confronted Appellant and that “he confessed to it after about an hour of denial.” Interestingly, the victim/mother had told the police officer who interviewed her at her house that she only listened to—and did not actively participate in—Appellant’s fantasies of sexual conduct with children. She admitted in her deposition that this was not true, as she had participated in those fantasies with Appellant and had even initiated such conversations on occasion. Ms. MN said she had lied to the officer because she did not want to get in trouble. Ms. MN testified she never alerted law enforcement about Appellant’s requests, saying: “I didn’t know I was allowed to since he was overseas and he had never physically touched my child.” She conceded that she approached Ms. BM not because she believed she was being asked to commit a crime, but because she believed Ms. BM should know what Appellant was doing behind her back. The deposition became an issue because the victim/mother was located in California and didn't want to travel, which led to (redacted) [T]he Government contacted Ms. MN, who was living in California, in an effort to secure her appearance at trial. Ms. MN sent an email to trial counsel which read in its entirety: “I talked it over with my husband and we don’t think it will be a good fit for us, having me alway [sic] for so long. I would love to help any way I can going forward. Thank you for everything.” The Government attempted to persuade Ms. MN to change her mind, but Ms. MN persisted in refusing to travel to the United Kingdom for the trial, even though her expenses would have been paid for by the Government. She further frustrated Government efforts to secure her presence by refusing to provide the passport information needed to arrange her international travel. The convening authority then ordered the oral deposition at Travis Air Force Base, California; Appellant, his counsel, and his expert consultant in forensic psychology were present for the video-recorded proceeding. Although Ms. MN agreed to the deposition, she told the parties she still had no intention of participating in Appellant’s court a position she maintained through the Government’s last contact with her about the matter. At trial, the Government made a motion to admit Ms. MN’s deposition in lieu of her in-person testimony. The Defense objected and asked the military judge to abate the proceedings. Alternatively, the Defense asked that the “entirety of the Defense cross-examination” be admitted. The military judge granted the Government’s motion, finding Ms. MN to be unavailable within the meaning of Mil. R. Evid. 804(a). He based this conclusion on the fact that he had no authority to compel civilian witnesses to travel outside the United States and that Ms. MN had steadfastly refused to voluntarily travel. He also concluded the Government had made good faith efforts to obtain her in-person appearance. He further ruled that because the deposition was recorded and transcribed verbatim, Ms. MN’s prior testimony was “undoubtedly reliable and [met] the criteria contemplated in [Mil. R. Evid.] 804(b).” The military judge also noted that Appellant, his counsel, and expert were present, and that the Defense cross-examined Ms. MN “for over an hour on the full scope of relevant topics.” Apparently, there was no motion to change venue, and the Appellant argues the military judge abused his discretion in finding Ms. MN “unavailable” under the theory that Ms. MN was willing to participate live at the Appellant’s court-martial, just not travel to the United Kingdom. In finding no error, the court footnotes that "the discussion under R.C.M. 906(b)(11) indicates a change of the place of trial may be necessary “to obtain compulsory process over an essential witness.” We do not understand that statement to require a military judge to sua sponte order a change in venue, especially when the witness’s testimony has been otherwise preserved through a deposition. In the body of the opinion, The court disagrees because that would require courts-martial to relocate as needed to meet the wishes of recalcitrant witnesses. This would turn the concept of “unavailability” on its head, as the Manual for Courts-Martial plainly contemplates witnesses coming to courts-martial—and not the other way around—by virtue of R.C.M. 703 which explains in detail how to procure the presence of witnesses. Note, the deposition was video-recorded so the MJ could see and hear the witness testify, but was not able to ask questions.
CAAF may take this case to examine whether the criticality of a witness should be a significant factor in moving a trial and may construe the defense arguments at trial as the functional equivalent of asking for a change of venue. The defense had asked for the drastic remedy of a mistrial, and a lesser remedy would be a change of venue? This brings to mind a British Army court-martial some of us witnessed in the courtroom at Andrews AFB, MD some years ago. The trial was "bifurcated" in that proceedings were held at Buford, UK, moved to Andrews to take the testimony of the sexual assault victim, and then moved back to Buford to do the remainder of the case. It was a members case and they traveled. He was found not guilty. Signs of an expeditionary court-martial system. I was most amused by a picture of The Queen hanging behind the judge, in his wig and robe; bewigged civilian counsel, and watching people entering or leaving the courtroom who were required to bow or salute if in uniform. The Brigadier President of the panel, as is allowed publicly admonished the officer thus: Certificate for Review Filed No. 24-0093/MC. United States, Appellant v. Brandon K. Flanner, Appellee. CCA 202300134. Notice is given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals and supporting brief were filed under Rule 22 on this date on the following issue: DID THE MILITARY JUDGE ABUSE HER DISCRETION WHEN SHE SUPPRESSED APPELLEE'S NON-CUSTODIAL, PRE-PREFERRAL, SELF-SCHEDULED INTERVIEW WITH LAW ENFORCEMENT IN WHICH APPELLEE WAIVED THE RIGHTS TO COUNSEL AND TO REMAIN SILENT? The NMCCA decision is here.
The facts of what the accused "knew" or understood are not that uncommon. 1. Appellee called in for NCIS interrogation, invokes, interrogation terminated. (The opinion does not say if he was Titled (fingerprints, mug shot, DNA sample), which is a screening question as an indicator of the NCIS belief in the strength of their case and the possibility of preferral.) 2. Appellee goes to base DSO. No indication of what he was told, but likely to keep his mouth shut. A MJ FF "He made two separate attempts to get an attorney by visiting the Defense Services Office, where he was turned away." 3. As usual, the investigation is taking a long time so he considers what next. He does not go back to DSO and he does not call civilian counsel--either of which would likely have changed the trajectory of events. 4. He asks his Master Guns if he would get a lawyer if he went for an interview. 5. Master Guns calls SJA. The SJA does not say that is a question best answered by the SDC DSO but says he "would only receive counsel if charges were preferred." Had the SJA referred the Master Guns to the DSO, that too might have altered the trajectory of the case. Clearly the government agents had a person on deck who needed to talk to a lawyer who could answer the questions better and more effectively. The USMC DSO manual in place at the time potentially covered that situation. These were serious allegations and the appellee was being held over his enlistment (something some of us have raised as starting the 707/DP clock). The SDC might have decided the situation was among "a wide variety of situations in which defense counsel may be detailed prior to the preferral of charges including, “servicemembers pending investigation….by any law enforcement agency, when the detailing authority reasonably believes that such an investigation may result in court martial, nonjudicial punishment, or adverse administrative action.” For example, the person being Titled. 6. The SJA's "advice" is repeated to Appellee and he goes ahead and schedules an interrogation with NCIS. The appellee could have gone back to the DSO for the third time for clarification or, as quite a few do, call a civilian who would put him straight not just about the right to counsel but the right to silence. 7. NCIS agent "specifically noted that Appellee was given “incorrect info on lawyer by CMD [command]” and “explained preferral of charges=lawyer.”" 8. SA Charlotte started the interview by asking Appellee if he wanted to speak with her, since the last time he came in he had requested the presence of a lawyer. Appellee told SA Charlotte that his enlisted leader explained his right to counsel to him and so he now understood he could not be appointed a lawyer until charges were preferred. SA Charlotte then reviewed a rights advisement form with Appellee, and Appellee then signed. According to the form, Appellee indicated that he understood he had the right to a “retained civilian lawyer and[/]or appointed lawyer present during [the] interview.” Appellee then participated in an interview with SA Charlotte.The charges were preferred against Appellee on 18 November 2022. 9. MJ suppresses statements. Gov. appeals under Art. 62 to NMCCA and the MJ decision is affirmed on the facts of this case. 10. Quote of the Case: "The Government’s assertions regarding the ability for an accused to obtain detailed military counsel prior to preferral of charges is contrary to the language of Mil. R. Evid 305(d) and exactly the same premise that the military judge identified as Appellee’s source of government-induced confusion." Order Granting Petition for Review No. 24-0049/AF. U.S. v. S'hun R. Maymi. CCA 40332. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issues: I. WHETHER THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES HAS JURISDICTION TO DIRECT MODIFICATION OF THE 18 U.S.C. § 922 PROHIBITION NOTED ON THE STAFF JUDGE ADVOCATE'S INDORSEMENT TO THE ENTRY OF JUDGMENT. II. AS APPLIED TO APPELLANT, WHETHER THE GOVERNMENT CAN PROVE 18 U.S.C. § 922 IS CONSTITUTIONAL BY "DEMONSTRATING THAT IT IS CONSISTENT WITH THE NATION'S HISTORICAL TRADITION OF FIREARM REGULATION" WHEN APPELLANT WAS NOT CONVICTED OF A VIOLENT OFFENSE. (quoting New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111, 2130 (2022). There are likely some trailers out there.
In re RWThis writ petition is interesting because of what it doesn't say and for what it suggests might be something for Congress to consider. We may remember several cases involving Mil. R. Evid. 513 where something went awry in the process of retrieving the materials for an in-camera review. See, e.g., here, and here. While not explicit, it appears the military judge was being a little creative to avoid inadvertent spillage with the equivalent of a "special master" to filter the records. To do that he created an order to have what AFCCA characterizes as a "taint team" to obtain and review the subject records before they are provided to him. Unfortunately, that creativity exceeded what is allowed under the current rules. So, For the reasons set forth below, we grant the petition in part. We vacate the military judge’s 27 September 2023 written order and oral supplement to that order to release Petitioner’s “mental health diagnosis and treatment records” maintained by the 31st Operational Medical Readiness Squadron Mental Health Flight (31 OMRS/MHF) located at Aviano Air Base, Italy, to Ms. CM, a civilian medical law attorney, and subsequently to Major (Maj) AW, a military medical law attorney (both of whom were assigned to JACC), for review and identification of releasable treatment and diagnosis information, and review and redaction of “any and all matters subject to privilege under [Mil. R. Evid.] 513.” AFCCA focuses on the missteps and resolves the case on authority issue alone, and sends the case back. Petitioner asserts that, in issuing the order to produce certain of her mental health records, the military judge erred in three general respects: (1) failing to hold a hearing as required by Mil. R. Evid. 513; (2) failing to apply the process and procedures as required by R.C.M. 703(g)(3) (arguing the Petitioner’s mental health records physically maintained by the 31 OMRS/MHF were not “within the possession, custody, or control of military authorities” within the meaning of R.C.M. 701(a)(2)); and (3) issuing an order outside the scope of the military judge’s authority. On issue two, AFCCA has already opined that (unless there is some evidence that the 31 OMRS/MHF is not a military authority) such records likely are within... See, e.g., In re KS, et. al., 2023 CCA LEXIS 406 *9, citing In re HVZ. Issue one of course has legs. Having determined interpretation and application of Mil. R. Evid. 513(e)(3) was necessary—as evidenced by his order—the military judge did not address the four prerequisites for in camera review of qualifying mental health records in accordance with Mil. R. Evid. 513(e)(3)(A)–(D). Cf. In re AL, Misc. Dkt. No. 2022-12, 2022 CCA LEXIS 702, at *21 (A.F. Ct. Crim. App. 7 Dec. 2022) (order) (granting Article 6b, UCMJ, petition on Mil. R. Evid. 513 grounds where the military judge ordered production of entirety of AL’s Family Advocacy Program mental health records over AL’s claims of privilege without adhering Mil. R. Evid. 513(e) procedural safeguards)). Furthermore, even if the military judge had considered those prerequisites, Mil. R. Evid. 513(e)(3) authorizes only one person to complete in camera review: the military judge. Issue three is where Congress might want to consider a "special master" rule for disclosure of Mil. R. Evid. 513 material. For example, if an MTF has a dedicated legal advisor, could not the records be filtered by that legal advisor before surrender to the military judge? MTF legal advisors are well-informed and experienced in protecting HIPAA material, credentialing materials, quality assurance information, etc. Plus they have legal training and would be better positioned to understand issues of relevance and discovery. That way the reviewed information is contained within the MTF bubble and less likely to be accidentally exposed.
Just a thought. Here's the link to the CAAF litigation in HVZ and BM. United States v. SalinasThe resolution of this case should be easy enough. Appellant’s case was docketed almost three months before this Court’s decision in United States v. Marin, [__ M.J. ___ (N-M Ct. Crim. App. 2023)]which held that the crime of attempt requires the Government to prove an accused had the specific intent to commit the underlying offense and, therefore, an accused cannot be charged or convicted of an attempted sexual assault on the basis that he “reasonably should have known” of an underlying condition. Both parties agree that Appellant’s second assignment of error, which challenges his conviction for attempted sexual assault where he “reasonably should have known” the victim was asleep, has merit. They also agree that the constitutional error involved is not harmless beyond a reasonable doubt. And they agree that the findings and sentence should be set aside, and a rehearing authorized, in light of Marin. But both parties nevertheless insist the Court accompany them on separate, quixotic adventures. United States v. Connor The Conner case is another addressing what a victim can say in an impact statement. We know that sentencing witnesses cannot opine on a punitive discharge or a specific sentence. The newer question is whether a victim can say something similar in an impact statement. The court finds an error but gives no relief. Appellant now claims the military judge erred in allowing the victim to ask for a specific sentence in his unsworn statement. For the reasons set forth, while we agree with the appellant that the military judge erred in admitting such evidence, the appellant is not entitled to any relief because the error was harmless." In its restatement of the law the court says: Rule for Courts-Marital [R.C.M.] 1001(c)(3) states that a victim impact statement, either sworn or unsworn, "may not include a recommendation of a specific sentence." The Discussion following R.C.M. 1001(c)(5)(B) notes that "[u]pon objection by either party or sua sponte, a military judge may stop or interrupt a victim's statement that includes materials outside the scope of R.C.M. 1001(c)(3). See also United States v. Ohrt, 28 M.J. 301, 305 (C.M.A. 1989) ("The question of appropriateness of punishment is one which must be decided by the court-martial; it cannot be usurped by a witness. Thus, for the same reasons that we do not permit an opinion of guilt or innocence, or of 'truthfulness' or 'untruthfulness' of witnesses, we do not allow opinions as to appropriate sentences") (citations omitted). The Court of Military Appeals in Ohrt also criticized the use of "euphemisms" that were simply other ways to say "[g]ive the accused a punitive discharge." Id. There was no objection by either the defense or the military judge, so the court used the plain error standard of review. Interestingly, given its law restatement, is the court applying the plain error rule to the military judge's failure to sua sponte interrupt as well as to defense counsel? We know the discussion to R.C.M.s is not binding, but in 1001(c)(5)(B), it seems clear the President intended to place some onus on the military judge to intercede. Thus, there is a difference with many other objections where the onus to object is entirely on the defense.
At the end of the opinion, the court recognizes that "notwithstanding the judge's mistake in permitting the [recommendation,]" there is no prejudice. Slip op. at 5 (emphasis added). (We also might why the special victim counsel and trial counsel did not address the issue in pretrial preparations before it came before the court.)
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