United States v. Urieta

Air Force

Army

Though we provide relief based on appellant's claim of ineffective assistance of counsel, we note one other issue—now moot—that warrants brief discussion: the military judges' gatekeeping responsibilities in sexual offense cases when confronted with evidence covered by Mil. R. Evid. 412.

I fully concur with Judge Schlack's detailed approach, analysis, and decision. I write separately to mention two additional episodes of deficient trial advocacy. My intent is not to "pile on," but to succinctly encourage counsel not to repeat them.

First, the defense counsel's opening statement began with a quote from a centuries-old play. It does not bear repeating, and I am confident that I am not alone in recognizing its misogyny. The quote was inappropriate and -- it follows —categorically unhelpful.

Second, the defense counsel's closing argument featured, for the first time in this trial, a demonstration by the appellant along with dialogue with counsel. The government predictably objected, and the judge predictably sustained the objection with a curative instruction. The law authorizes a military accused to bring information to the factfinder's attention in multiple ways, but this method was clearly not among them. To make matters worse, it raised the not unreasonable prospect -- for the factfinder's consideration -- that the defense did not know how to try the case.

Based on the same principles set out in Malone, we find Specifications 2 and 4 of Charge II are multiplicious. Both assaults occurred within a short time, were instigated by the same argument, and were not interrupted by a break in time. "While the specifications may not be verbatim," i.e., identical, it is clear from the providence inquiry and the stipulation of fact that each specification "arose from an uninterrupted attack orchestrated by appellant." Though not alleged by appellant, it was plain error for the military judge to accept appellant's plea to both specifications. The error "materially prejudiced appellant's constitutional rights against Double Jeopardy," and as such was not harmless beyond a reasonable doubt.

Navy-Marine Corps

​Recently in United States v. Patterson, [No. 202200262, 2024 CCA LEXIS 130, *16–17 (N-M. Ct. Crim. App. April 4, 2024) (unpublished)].  this Court found that the appellant, First Lieutenant (1stLt) Patterson, provided an involuntary statement to NCIS. Our analysis turned on three factors. First, 1stLt Patterson’s executive officer instructed him not to “squirrel around [and] just answer [NCIS’s] questions” immediately before 1stLt Patterson was escorted by a separate superior officer to the NCIS offices. The second factor was that the special agent provided an inadequate rights advisement. The final factor was that during the interview, the special agent repeatedly referenced reporting to 1stLt Patterson’s command. This final factor was only relevant insofar as it “underscored and amplified the coercive effect of [the executive officer’s] directive to answer their questions.”

 In 1995, a Kentucky jury convicted Garr Keith Hardin and Jeffrey Clark of murdering Rhonda Sue Warford. Robert Thurman, a forensic serologist, testified at their trial that a hair found at the crime scene was “similar” to a sample of Hardin’s hair. After Clark and Hardin spent over two decades in prison, DNA testing proved that this hair was not, in fact, Hardin’s. A state court thus vacated Hardin’s and Clark’s convictions. Clark and Hardin then brought this suit under 42 U.S.C. § 1983 against (among others) Thurman. In discovery, they obtained the “observation notes” that Thurman had written when examining the hairs. These notes suggested that the hair found at the scene might not have matched Hardin’s hair sample in various ways. Hardin claimed that Thurman’s failure to disclose the notes before trial violated his disclosure obligations under Brady v. Maryland, 373 U.S. 83 (1963). The district court denied Thurman’s qualified-immunity defense. On appeal, Thurman argues (1) that his notes were neither exculpatory nor material under Brady, and (2) that the law in the mid-1990s did not clearly establish that Brady’s duty of disclosure applied to scientists. Our precedent deprives us of jurisdiction over Thurman’s first argument. And it also dooms his second argument that Brady did not clearly apply to him. We thus affirm in part and dismiss in part for lack of jurisdiction.
. . .
​That brings us to the question at the crux of the parties’ debate: do forensic scientists have a Brady-like duty of disclosure even absent bad faith? Thurman argues that Brady’s generic legal rule reads the right at “too high a level of generality.” Beck, 969 F.3d at 600. Even if prosecutors had an absolute duty of disclosure in the 1990s, Thurman reasons, that rule does not establish that everyone else connected to the investigation (including forensic serologists) also had such an absolute duty. Hardin counters that our caselaw has already rejected this claim. Hardin is right. To be sure, Thurman correctly notes that Brady and the Supreme Court cases applying it have imposed the disclosure duty on “prosecutors,” not investigators like police officers or forensic scientists. Moldowan, 578 F.3d at 377; see Kyles, 514 U.S. at 437–38; Brady, 373 U.S. at 87. Yet we have held that pre-1990 cases clearly established that the police also have a “Brady-derived” duty to disclose material exculpatory evidence to the prosecution. Moldowan, 578 F.3d at 381–82; see Gillispie, 18 F.4th at 918 n.2; Jackson, 925 F.3d at 823−24. In Moldowan, for example, a state court had wrongly convicted the § 1983 plaintiff of a violent sexual assault, and he brought a Brady claim against (among others) an officer involved in the investigation. 578 F.3d at 363–67, 376. The plaintiff alleged that this officer violated Brady because he did not disclose an eyewitness’s “exculpatory statements” suggesting that other men had committed the assault. Id. at 376, 382. We held that “overwhelming” out-of-circuit precedent clearly established the extension of Brady’s no-fault regime to the police before 1990. Id. at 381–82. Admittedly, this caselaw addressed claims against police officers rather than forensic scientists. But “every reasonable” scientist would have recognized that this extension of Brady covered them too. Wesby, 583 U.S. at 63. To be sure, one might have distinguished prosecutors No. 24-5061 Clark, et al. v. Louisville-Jefferson Cnty. Metro Gov’t, et al. Page 14 from others in the criminal investigation for Brady purposes. After all, a state official must answer essentially legal questions suited for lawyers when deciding whether a piece of evidence is material or exculpatory. See Moldowan, 578 F.3d at 379–81; id. at 402 (Kethledge, J., concurring in the judgment in part and dissenting in part). But once we make the leap beyond prosecutors, we see no reasonable argument why this leap should apply only to police officers in the field and not those in the lab. See Horn v. Stephenson, 11 F.4th 163, 171−73 (2d Cir. 2021); Brown v. Miller, 519 F.3d 231, 237−38 (5th Cir. 2008); Pierce v. Gilchrist, 359 F.3d 1279, 1299 (10th Cir. 2004). An analogy confirms this point. In Spurlock, we found that the existing caselaw in 1990 clearly established that a police officer would violate due process by intentionally fabricating evidence. See 167 F.3d at 1005–06. In Gregory, we then relied on Spurlock to find that the caselaw clearly established this principle for forensic scientists. See 444 F.3d at 740, 744. Gregory saw “no reason to treat the intentional fabrication of a forensic report differently from the intentional fabrication of” a police report. Id. at 740; see Moldowan, 578 F.3d at 397. If we do not treat these two officials differently for purposes of a fabricated-evidence claim, why should we treat them differently for purposes of a Brady claim? In short, because we have held that it was clearly established in 1990 that Brady’s disclosure obligations covered police officers, we must now hold that it was clearly established that those obligations covered forensic examiners. In response, Thurman claims that no case has clearly established that a forensic scientist might have a Brady duty to turn over “unfinished notes” that contain only initial “thoughts and impressions.” Appellant’s Br. 34. At this stage, however, our precedent requires us to assume what the district court held a reasonable jury could find about these notes: that their exculpatory nature was “apparent” and that they were material to Hardin’s innocence. Clark, 2024 WL 55862, at *11. And, as explained, it was clearly established in 1990 that a scientist could violate Brady by failing to disclose material exculpatory evidence. That rule suffices to rebut Thurman’s qualified-immunity defense under our caselaw. See Gillispie, 18 F.4th at 918 n.2; Jackson, 925 F.3d at 823−24; Moldowan, 578 F.3d at 381–82. Contrary to Thurman’s claim, No. 24-5061 Clark, et al. v. Louisville-Jefferson Cnty. Metro Gov’t, et al. Page 15 these cases do not require plaintiffs to identify a decision that addressed exactly the same type of Brady evidence.

Air Force

United States v. Ching

The Government provided two theories as to how Appellant disobeyed his superior commissioned officer, Maj AG, both of which are based on the MPOs Maj AG issued Appellant to “restrain[ ] from initiating any contact or communication with [JC] either directly or through a third party.” The first theory alleges Appellant disobeyed this order by posting on his Twitter account grievances he had about JC. The second theory alleges Appellant disobeyed this order by searching for JC on the iPhone “Find My” app. Neither of these actions by Appellant meet the definition of “initiating contact or communication.” The charged offense alleges Appellant was restricted from “initiating electronic contact” or “words to that effect,” which is slightly different from the specific wording of the MPO. The difference in wording is of no importance to our analysis and conclusion on this issue. The crux of the issue is whether or not Appellant “initiated contact” with JC and thus, we must determine the meaning of that term.

With respect to the tweets, JC was never asked how she became aware of them and testified she “happened to come across messages” from Appellant on Twitter. While she might have been the subject of words he posted to the public, they were not in fact messages sent to her.

JC testified that she saw the tweets, but the Government failed to prove this was because Appellant “willfully” initiated contact with her. While JC testified the tweets were “directed at her,” there is no evidence this is so. She was the subject of the tweets, but there was no evidence Appellant sent them to her, attempted to induce another to send to her, or put them in a format that she would directly receive.

​With respect to the allegation Appellant used the “Find My” app to locate JC, Appellant argues there was no testimony elicited at trial that he had an iPhone at the time she received the notification from Apple informing her someone was trying to locate JC and there was no testimony or evidence that proved the email address connected to the notice did in fact belong to Appellant. This is true; however, even assuming Appellant attempted to discover JC’s whereabouts using the “Find My” app and the app sent an automatic push-notification to JC informing her someone was trying to find her, this was not a request by Appellant reaching out asking JC to allow him to follow her, nor does it demonstrate Appellant willfully sent a “communication” or “significant signal” to JC. There is no evidence his intention was to communicate with JC. Simply put, this app is not a communication app and Appellant’s attempt to locate JC’s whereabouts, without more, does not meet the definition of “initiating contact.”