In United States v. Prasad, 80 M.J. 23 C.A.A.F. 2020), the court set aside the findings and sentence. Appellant was tried before our recent decisions held that is it impermissible to use Military Rule of Evidence (M.R.E.) 413 propensity evidence "as a mechanism for admitting evidence of charged conduct to which an accused has pleaded not guilty in order to show a propensity to commit the very same charged conduct." However, the Hills and Hukill decisions were issued by the time Appellant's case was reviewed by the United States Air Force Court of Criminal Appeals. Citing our holding in those cases, the lower court held that the military judge erred in Appellant's case by permitting evidence of the charged sexual offenses to be used as M.R.E. 413 propensity evidence and by instructing the members accordingly. Consequently, the Court of Criminal Appeals set aside the finding of guilt and the sentence as to Specification 1 of Additional Charge II 3 and authorized a rehearing. However, the Court of Criminal Appeals affirmed the remaining findings of guilt as to Specifications 1 and 3 of the Charge, finding the Hills error for those specifications to be harmless beyond a reasonable doubt. Id. at 25. I am noting the court-martial case here because of a parallel civil case Prasad had until March 10, 2022, in the District Court for North Dakota, Prasad v. Henson. Prasad was a service member in the United States Air Force. In general terms, this case originated with a military case against Prasad, which began in 2015. Prasad's military case has a convoluted procedural history that the Court need not address with any particularity for purposes of this Order. See, e.g., Doc. No. 1-6, pp. 19-20 (where a military judge noted that the "complexity of the case is well documented in its Article 32 investigations, trial, and sentence rehearing"). Suffice it to say, the nature of Prasad's military case prompted him to file his Petition with this Court on March 12, 2021. The court dismissed the case without prejudice. An interesting read.
No. 22-0098/AF. U.S. v. Chase M. Thompson. CCA 40019. 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 issue: DID THE COURT OF CRIMINAL APPEALS ERR BY REQUIRING THAT APPELLANT INTRODUCE DIRECT EVIDENCE OF HIS SUBJECTIVE BELIEF TO MEET HIS BURDEN FOR A REASONABLE MISTAKE OF FACT DEFENSE? The Air Force Court of Criminal Appeals decision is at this link. The CAAF has previously held that an accused is not required to testify in order to establish a mistake of fact defense. United States v. Jones, 49 M.J. 85, 91 (C.A.A.F. 1998). The AFCCA appeared to approve of Jones in the unpublished decision of United States v. Roblero, No. ACM 38874, 2017 CCA LEXIS 168 (A. F. Ct. Crim. App. Feb. 17, 2017). Or at least no issue was made of the appellant’s decision not to testify. The Navy-Marine Corps Court of Criminal Appeals seems to have followed a similar path in United States v. Thomas, No. NMCCA 201200203, 2013 CCA LEXIS 49 (N-M Ct. Crim. App. Jan. 31, 2013). The Army Court of Criminal Appeals in United States v. Clark, ARMY 20160304, 2018 CCA LEXIS 505 (A. Ct. Crim. App. Oct. 12, 2018) had this to say in the footnote. In any event, we find no error, plain or otherwise. To warrant an instruction on the mistake of fact defense there must be "some evidence of an honest and reasonable mistake to which the members could have attached credit if they had so desired." United States v. Hibbard, 58 M.J. 71, 75 (C.A.A.F. 2003). While there is no per se requirement an accused testify to establish a mistake of fact defense, evidence that the accused honestly and reasonably believed the victim had consented must come from somewhere. See United States v. Jones, 49 M.J. 85, 91 (C.A.A.F. 199). In many cases, the only source of admissible evidence about an accused's subjective belief may well be from the accused himself. If AFCCA is correct in Thompson, that puts the accused between Scylla and Charybdis having to choose between testifying or remaining silent while hoping there is sufficient evidence to warrant the instruction without his testimony?
Mark P. Nevitt, The Operational and Legal Risks of a No-Fly Zone Over Ukrainian Skies. Just Security, March 10, 2022. The United States and its NATO allies are facing forceful calls to impose a “no-fly zone” over Ukrainian skies, with the idea of countering Russian aggression in the region, easing humanitarian suffering, and protecting Ukrainian civilians trying to flee the fighting. Ukraine has requested a no-fly zone repeatedly. In the United States, polling shows this is a popular idea: three-quarters of Americans support a NATO-imposed no-fly zone. But a no-fly zone does not equate to a no-combat zone. Quite the opposite. Enforcing a no-fly zone requires the use of military force, and in Ukraine, that would likely mean confronting the Russian military head-on. Judge Lauck of the Eastern District of Virginia recently handed down the long-awaited opinion in United States v. Chatrie, on how the Fourth Amendment applies to geofencing warrants. I believe this is the first Article III judicial opinion on the subject. Geofence warrants raise some really interesting Fourth Amendment issues, and we're likely to hear more about those issues. So begins Prof. Orin Kerr's introduction to Chatrie.
You might also be interested in NOTE: Geofence Warrants and the Fourth Amendment. 134 HARV. L. REV. 2508 (2021). In Wooden, The court explores the meaning of the word "occasion" used in the Armed Career Criminal Act. The case may have some relevance when deciding Quiroz type questions while litigating unreasonable multiplication claims (or cumulative convictions claims in international criminal law). Justices Sotomayor, Kavanaugh, and Barrett with Thomas, and Gorsuch joined by Sotomayor wrote separately to concur. Prof. Doug Berman's take here. Volokh Conspiracy's take is here. The Courts of Appeals have divided over the meaning of ACCA’s “occasions” clause. Some Circuits, like the Sixth, deem the clause satisfied whenever crimes take place at different moments in time—that is, sequentially rather than simultaneously. Other Circuits undertake a more holistic inquiry, considering not merely the precise timing but also other circumstances of the crimes. We granted certiorari, 592 U. S. ___ (2021), to resolve that split of authority. |
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
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