"ORDER. For the reasons to be set forth in the Memorandum Opinion to be issued by the Court within the next sixty days, absent extraordinary circumstances, the Court will grant in part and deny in part the defendant's motion to dismiss, and grant in part and deny in part the plaintiff's motion for summary judgment. Accordingly, it is hereby ORDERED that the 16 Defendant's Motion to Dismiss is GRANTED IN PART AND DENIED IN PART. The motion is GRANTED to the extent that it seeks dismissal of the Count I of the Complaint in this case. The motion is DENIED in all other respects. It is further ORDERED that the 18 Plaintiff's Cross-Motion for Summary Judgment is GRANTED IN PART AND DENIED IN PART. The motion is GRANTED to the extent that it seeks summary judgment as to Count II of the Complaint in this case. The motion is DENIED in all other respects. It is further ORDERED that this Order is not a final ! Order subject to appeal. Signed by Judge Reggie B. Walton on March 31, 2023. (lcrbw3) (Entered: 03/31/2023)"
This case presents a government appeal of a military judge's ruling to exclude all testimony of a CID agent based on a Kastigar problem. (NB) This case might have turned out differently had the CID recorded the Appellant’s earlier statements.
1. Appellant was interrogated by CID for his involvement in the murder of two soldiers—but the interrogation was not recorded.
2. Appellant was then reinterviewed under a grant of immunity. This interrogation happened over two days for a total of about eight to 10 hours.
3. Appellant’s subsequent guilty plea as an aider or abettor was set aside and a rehearing commenced.
4. In a pretrial interview with the new prosecutor’s the CID agent, according to the MJ’s finding of fact, disclosed “immunized information” to them ""after the prosecution team warned him to not reveal any immunized information to them."?"
5. Trial litigation ensued from which the military judge determined, in part, that
Not only [has SA AA's] anticipated testimony been so colored, so has his subjective belief that the non-immunized and non-'minimized' statements are the more accurate statements of the accused. At some immeasurable level, his belief stands to impact the factfinder indirectly in the form of his credibility on the stand. Stated another way, SA [AA] presents as a confident witness, resolute that his testimony accurately reflects his memory. Yet, the Government has not disproven that his confident resoluteness is in any way the product of the immunized statements.
Perhaps in the background people were wondering how the CID agent could have such a great (confident) memory of two lengthy interrogations at least four years earlier. Had the interrogation and the immunized interview been recorded, all the CID agent would have been needed for was to lay a foundation for introduction of the two interviews.
For many years investigators had resisted recording interrogations out of fear there would be more suppression litigation. Experience has shown the value of recording interrogations and interviews. People are still confessing, it's harder to challenge a recorded interview, and problems such as happened in Thompson are potentially avoided.
Jones is a reminder, primarily to military judges, that when an accused "raises" a potential defense during his sentencing case, it's a good idea to reopen the providence inquiry.
Jones pled guilty to conspiracy to sell and selling government property and use of marijuana.
The stipulation of fact and statements to the military judge in providency denied any defenses. Although there was a statement that "he was feeling "really depressed" and smoked the marijuana because he thought it would make him feel better."
During sentencing a defense witness said he thought Jones was "depressed" at the time of the offenses and during an unsworn statement Jones said he was "very depressed," had "very suicidal thoughts," and this lead him to smoke marijuana. He also referenced receiving counseling and a desire to continuance counseling. The court finds the questions from the DC to Appellant leading to the statements about mental health to be "inartful." While the facts here don't present a defense, an artful suggestion would be that his mental state can be "evidence" of extenuation and mitigation, and his statements about getting help is "evidence" of rehabilitative potential. (The statements were from the unsworn. Was there evidence through records of any screening and counseling which could support the unsworn?)
The military judge did not reopen providency.
On appeal, the court found forfeiture of the issue and proceeded to a plain error analysis of an improvident plea.
The court found "obvious error" in not following R.C.M. 912(h)(2). (Trial counsel take note. While it's the duty of the military judge to resolve inconsistencies in the plea, it may be a really good idea for the prosecution to ask the MJ to do that when a potential inconsistency arises.) But there was no prejudice and
Without a substantial question concerning the plea, we find an R.C.M. 706 inquiry unnecessary. This finding is buttressed by appellant's declination to raise the issue on appeal. This issue could have been resolved quickly by reopening the providence inquiry, and so we reiterate the requirement to resolve inconsistencies during a guilty plea remains both proper procedure and best practice.
Staff Director, Military Justice Support Group, Supervisory GS-15
The incumbent for this position serves as the Staff Director, Military Justice Support Group, Defense Legal Services Agency and leads a team of professionals supporting the high-visibility, high-priority work of the Military Justice Review Panel (MJRP) and the Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces (DAC-IPAD), which include renowned members of the bench and bar, as well as leading subject matter experts in such fields as criminology and forensics. The incumbent also performs other duties as assigned by the DoD General Counsel.
The incumbent must be able to exercise significant initiative in accomplishing the position’s assigned missions. The incumbent leads a professional staff of attorneys, paralegals, and data analysts-coaching, mentoring, and supervising them as they conduct research concerning case law, statutes, regulations, policy documents, congressional documents, secondary sources, and data reports related to military and civilian criminal law and criminal investigations. This work includes comparative analyses of military, federal civilian, state, and foreign criminal justice and investigation systems in support of the MJRP and DAC-IPAD. The incumbent ensures that the supported organizations comply with all applicable laws, rules, and procedures governing advisory committees and is responsible for ensuring the production of timely, high-quality written reports and correspondence.
The incumbent must be an active member in good standing of the bar of the highest court of a State, the District of Columbia, or a Territory, Commonwealth, or Possession of the United States. The incumbent performs a full range of supervisory responsibilities. This position is not suitable for remote work.
The incumbent should be a proven leader adept at running a high-tempo organization. The incumbent should be well-versed in military justice and must be fully committed to promoting and respecting equal employment opportunity and diversity in the workplace. The incumbent must have superior interpersonal skills.
The incumbent reports to the Deputy General Counsel for Personnel and Health Policy and, through the Deputy General Counsel and the Principal Deputy General Counsel, to the General Counsel of the Department of Defense.
We are accepting resumes until April 6, 2023. To apply, please email resume to email@example.com. The subject line should state “Resume File: [APPLICANT’S LAST NAME, FIRST NAME].” Please also reference this position in the body of your email.
A dismissal with prejudice is a remedy for a prosecution discovery violation. But the military judge has to get to that remedy through a proper and orderly analysis, which Judge Hardy, writing for everyone, says the military judge didn't do. So, the military judge gets a do-over. Judge Hardy writes for a unanimous court on an Article 62 appeal.
At trial the alleged victim began to testify about a statement made to her by Appellant. The defense objected because the statement had not been previously disclosed to the defense in discovery. During the ensuing Article 39(a) session the trial admitted they knew of the statement prior to trial and had learned of the specific statement two days before trial. Trial counsel asserted an “oversight.” The trial counsel was released from further participation in the case. The new trial counsel told the military judge that the prosecution had the information five days before trial. Apparently there had been a motions session to consider evidentiary motions within those five days.
Judge Hardy proceeds to tell us that
“ The military judge [had] ordered the dismissal pursuant to Rule for Courts-Martial (R.C.M.) 701(g)(3) after the Government violated its discovery obligations by failing to disclose to the defense a statement made by the alleged victim to investigators before trial. Although R.C.M. 701(g)(3) does not expressly sanction dismissal with prejudice as a remedy for discovery violations, it does authorize military judges to impose a remedy that is “just under the circumstances.” R.C.M. 701(g)(3)(D). We granted review to determine
Judge Hardy suggest the question arises
out of apparent tension between R.C.M. 701(g)(3)(D) and this Court’s decision in United States v. Stellato, 74 M.J. 473 (C.A.A.F. 2015). Although the plain language of the rule permits any remedy that is “just under the circumstances,” the ACCA interpreted Stellato as mandating that dismissal with prejudice is only available as a remedy if it is the least drastic remedy sufficient to cure the Government’s error. Stellato does not impose such a restriction.
In affirming the ACCA vacating the dismissal order at trial, Judge Hardy tells us that
applying both R.C.M. 701(g)(3)(D) and Stellato, the military judge was required to consider whether any alternatives to dismissal with prejudice were available before imposing that remedy, but was also authorized to reject alternative R.C.M. 701(g)(3)(D) remedies if she found that they were not just under the circumstances. Because the military judge focused on whether dismissal with prejudice was the least restrictive remedy sufficient to cure the Government’s error, rather than on whether lesser R.C.M. 701(g)(3)(D) remedies would have been just under the circumstances[.]
Judge Hardy adverts to R.C.M. 701(g)(3) which lists four remedies for a discovery violation. He notes also that a dismissal may be appropriate under R.C.M. 701(g)(3)(D). Working through the Rules and Stellato, Judge Hardy concludes the military judge abused her discretion because she had an erroneous view of the law.
In exercising her discretion to impose a remedy for discovery violations under R.C.M. 701(g)(3)(D), the military judge may impose dismissal with prejudice if, after considering whether less severe alternative remedies are available, she concludes that dismissal with prejudice is just under the circumstances. The military judge’s ruling in this case was influenced by an erroneous view of the law as requiring her to impose the least drastic remedy to cure the discovery error. As a result, she improperly limited her analysis to whether each remedy would cure the prejudice to the accused and failed to articulate why dismissal with prejudice was just under the circumstances.
Under R.C.M. 701(g), the military judge may take one or more of the following actions:
(A) Order the party to permit discovery[.] Moot.
(B) Grant a continuance[.] "Granted" through this appeal.
(C) Prohibit the party from introducing [further] evidence, calling a witness[.] Why is this necessary now? There may actually be reasons related to the theme and theory from the defense presented in opening statement, cross-examination of other witnesses, etc., etc., etc.
(D) Enter such other order as is just under the circumstances. Stellato does not require the least drastic remedy rather a case specific one. Judge Hardy tells us “permits a broader inquiry” as to what is just.
Offline discussions of this case have suggested there are more questions than answers to the puzzle.
Why was the first TC "fired?" Combined with the dismissal sending a message that a 304(d) notice really is required "before arraignment" and it's bad to forget that?
Does the military judge now have to conclude that dismissal is appropriate?
What say you?
Currently, the court-martial convening authority is required to “detail as members thereof such members of the armed forces as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.” Article 25(e)(2) (emphasis added). As part of the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023, Congress amended Article 25(e), UCMJ, regarding the detailing of court members, by adding a new paragraph (4), requiring a convening authority for courts-martial to “detail as members thereof members of the armed forces under such regulations as the President may prescribe for the randomized selection of qualified personnel, to the maximum extent practicable.” Pub. L. No. 117-263, § 543(a) (2022) (emphasis added). The President is required to prescribe implementing regulations by 23 December 2024, when the amendment takes effect, for courts-martial convened on after that date. § 543(b), (c).
The new provision was not part of the original House bill; it was added, apparently without much deliberation, by Senate amendment No. 5499. See Joint Explanatory Statement to Accompany the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023, at 83. https://www.armed-services.senate.gov/imo/media/doc/fy23_ndaa_
joint_explanatory_statement.pdf. Regardless of your sentiments on the merits of the issue, § 543 is an abysmal piece of legislation.
Typically, when Congress wishes an amendment to supersede an earlier statute, or it intends the earlier statute to remain in effect for some, but not all, purposes, it says so in the amendment. In fact, it “can strongly be presumed that Congress will specifically address language on the statute books that it wishes to change.” United States v. Fausto, 484 U.S. 439, 453 (1988). “[R]epeals by implication are not favored and will not be presumed unless the legislature’s intention to repeal is clear and manifest. Statutory repeal will not be inferred unless the later statute expressly contradicts the original act or such a construction is absolutely necessary to give the later statute’s words any meaning at all.” Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 646 (2007) (cleaned up).
On one hand, congressional intent is not clear and manifest. If Congress intended to repeal the first sentence of Article 25(e)(2), why not directly amend that provision to reflect a randomized court member selection process, rather than add a contrary provision in the same subsection of the statute? On the other hand, the amendment expressly contradicts the original act. Where the statute gave the convening authority almost unfettered discretion in selecting members, after applying statutory criteria, the amendment requires the President to establish procedures for the random selection of members but severs the convening authority from the actual selection process.
Article 25(e)(4) meets both criteria for inferring statutory repeal of the first sentence of Article 25(e)(2). It expressly contradicts the original act and repeal of the latter is absolutely necessary to give any meaning to the words of the amendment.
In the random selection amendment, Congress placed only one restriction on the President’s plan: the court members must be “qualified” members of the armed forces. The only qualifications under the current Article 25 require the individual selected for court-martial duty to be an active-duty member of the armed forces (Article 25(a), (b), (c)) and, when it can be avoided, not be inferior in rank or grade to the accused (Article 25(e)(1)).
In drafting a plan, the President will have to deal with other issues. Under Article 25(c)(2)(B), an enlisted accused has the right to select trial before a panel consisting of only officers or one in which at least one-third of the members are enlisted. With the vastly more numerous enlisted personnel than officers, random selection of members will inevitably result in some court panels consisting of enlisted members only. Will the President somehow restrict the random selection process so that officer representation on the panel is ensured? Congress seems to have foreclosed such restrictions in its mandate that the President’s plan randomize the selection process to “the maximum extent practicable.” The term “practicable” means “capable of being accomplished; feasible; possible.” Bryan A. Garner, A Dictionary of Modern Legal Usage 678 (2d ed. 1995). Certainly, a court-martial with an all-enlisted panel is feasible and possible.
Regardless of how the President resolves the officer/enlisted and other questions that may arise, the congressional requirement that the selection process be randomized to the maximum extent practicable raises its own question: Who decides whether the President’s plan establishes randomization to the maximum extent practicable?
The term “practicable” is used elsewhere in the UCMJ but, normally, it is associated with a grant of authority to the President to determine what is practicable. See, e.g., Article 36(a) (permitting the President to prescribe court-martial procedures “which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts” (emphasis added)). Although some may quibble, the President has executed this duty faithfully. The rules of evidence and procedure in courts-martial now pretty much track those in federal district courts, except where otherwise contrary to provisions of the UCMJ. And the courts are not flooded with litigation on whether it would be practicable to adopt more of the federal rules.
Ultimately, of course, Congress will be the final arbiter. But Congress acts slowly, leaving the question ripe for judicial intervention.
Good luck to the Joint Services Committee that is responsible for drafting the presidential regulations to implement the new Article 25(e)(4).
This recent civil penalty case from the Supreme Court is worth a read. In Bittner v. United States (https://www.supremecourt.gov/opinions/22pdf/21-1195_h3ci.pdf), the Court considers the interpretation of the Bank Secrecy Act. Justice Gorsuch's opinion does a nice job discussing statutory interpretation and Skidmore deference. Most significantly for military criminal practitioners, Justice Gorsuch discusses application of the Rule of Lenity. There is a lot of good language for that appellate attorney invoking the Rule of Lenity.
Amendments to the CAAF Rules effective 9 march 2023.
No. 23-0004/AF. U.S. v. Humphrey Daniels III. CCA 39407. 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 hereby granted on the following issue:
WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION IN ALLOWING THE VICTIM TO DELIVER HER UNSWORN VICTIM STATEMENT IN A QUESTION-AND-ANSWER FORMAT.
No briefs will be filed under Rule 25.
No. 23-0006/AR. U.S. v. Gene N. Williams. CCA 20130582. 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 ARMY COURT ABUSED ITS DISCRETION IN REASSESSING APPELLANT'S SENTENCE.
Briefs will be filed under Rule 25.
Tuesday, February 28, 2023
Miscellaneous Docket - Summary Disposition
No. 23-0073/AF. A.L., Appellant v. United States, Appellee, & Theodore J. Slusher, Captain, United States Air Force, Real Party in Interest CCA 2022-12.
On consideration of the writ-appeal petition for review of the decision of the United States Air Force Court of Criminal Appeals on application for extraordinary relief in the nature of a writ of mandamus, it is ordered that the petition is hereby denied in part and granted in part; that Appellant's request for the trial counsel to destroy the medical records that he obtained from her military treatment facility is denied; and that Appellant's request for the military judge to conduct an in camera review of all her medical and Family Advocacy Program records in order to determine their relevancy and to adjudicate any claims of privilege is granted.
In issuing this order, the Court expresses no opinion on the legality of the means by which the Government obtained Petitioner's records.
Friday, February 24, 2023
Order Granting Petition for Review
No. 23-0061/CG. James D. Fink v. Y.B. & U.S. CCA 001-23. On consideration of the writ-appeal petition for review of the decision of the United States Coast Guard Court of Criminal Appeals on application for extraordinary relief, it is ordered that said petition is hereby granted on the following issue:
WHETHER THIS COURT HAS JURISDICTION TO REVIEW A WRIT-APPEAL PETITION FILED BY AN ACCUSED TO REVIEW THE DECISION OF A COURT OF CRIMINAL APPEALS ON A PETITION FOR EXTRAORDINARY RELIEF FILED UNDER ARTICLE 6b, UCMJ.
Within 10 days, each Appellee shall file a brief addressing the arguments in Appellant's writ-appeal petition that Article 67(a)(3), UCMJ, provides this Court jurisdiction, and that the amendment of Article 67(c), UCMJ, in the National Defense Authorization Act of 2017 requires this Court to reconsider its holding in Randolph v. HV, 76 M.J. 27 (C.A.A.F. 2017). Appellant may file an answer no later than 5 days after the filing of the Appellees' briefs.
The Court reserves judgment on whether it will grant review of the other assigned issues in the writ-appeal petition.
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
Amendments to UCMJ Since 1950 (2024 ed.)
Amendments to RCM Since 1984 (2024 ed.)
Amendments to MRE Since 1984 (2024 ed.)
Army Crim. L. Deskbook
J. App. Prac. & Pro.