United States v. Waada

​Although Appellant submitted his case on the merits without assignment of error, we note that the Entry of Judgment [EOJ] in this case does not comply with Rule for Courts-Martial [R.C.M.] 1111(b)(1)(A) because it does not adequately summarize each specification of the charge. Although we find no prejudicial error, we take this opportunity to define what is required in an EOJ to provide guidance to the trial judiciary on an issue that all too frequently requires correction on appeal. We therefore take action in our decretal paragraph. In accordance with R.C.M. 1111(c)(2), we modify the EOJ and direct that it be included in the record.

United States v. Shelby

The convening authority correctly regarded the request as not clearly claiming an attorney-client relationship. By imposing on the convening authority a duty to look beyond Appellee’s express representation of no attorneyclient relationship, the military judge applied an incorrect legal principle and absolved Appellee from his burden to clearly claim the existence of such a relationship. As such, the military judge abused his discretion by applying an incorrect view of the law. Nonetheless, we reach the same conclusion as the military judge that the convening authority improperly denied the IMC request, but we do so for a different reason.

The cumulative error doctrine was not born in military courts, but has been used by military appellate courts for more than seven decades as an expansion of the mandate in Article 59(a), UCMJ, that authorizes military appellate courts to set aside a finding only if an error “materially prejudices the substantial rights of an accused.” The cumulative error doctrine is a test for prejudice that looks retrospectively at a trial’s execution and results to assess the “cumulative effect of all plain errors and preserved errors.” Under the doctrine, criminal courts of appeal determine if “‘a number of errors, no one perhaps sufficient to merit reversal, in combination necessitate the disapproval of a finding.’” We then reverse only if we find that the cumulative effect of the errors denied an appellant a fair trial.

We are aware of no statute, rule, or case that permits the use of the cumulative error doctrine in the pretrial context. To the contrary, one can hardly assess the cumulative effect of errors on the fairness of a trial if the trial has not yet commenced and a verdict has not yet been announced.

Despite the fact that we vacate the military judge’s ruling, nothing in this opinion should be read as condoning the Government’s behavior in how it has sought to prosecute Appellee up to this point. The military judge’s ruling sets forth a series of concerning actions and decisions by the Government both in the current court-martial and the prior proceedings that could be construed to demonstrate a “win at all costs” mentality. Trial counsel would be wise going forward to remind themselves of the Supreme Court’s famous exhortation[.]

United States v. Patterson

The lead agent began the rights advisement by saying, "Before we can talk to you, we just have to go over this form with you, okay?" He described it as "[n]ot a scary form" and "just a piece of paper."
After informing Appellant that he was suspected of indecent viewing, visual recording, and broadcasting, the lead agent asked him if he knew "the difference between being suspected of doing something and being accused of something." Appellant responded with "if you're suspected then you're suspected." The lead agent then explained,

[S]uspected of something means like "hey we need to talk to this person because they might have some kind of knowledge about it." Being in the military, if I think you have anything to do with this, I have to advise you of your rights. Okay. That's why I'm advising you of your rights. Uh. Because I want to know something you may have knowledge of.
. . .
Accused of something is when you're actually sitting in front of the judge and the judge is saying that you did this okay. So, if me and you are at the bar, you know, having some drinks and [John] falls down and starts bleeding and he points in our general direction and he says, "That guy stabbed me." Right? The police are going to want to talk to us because we might know something about [John] being stabbed without saying that we stabbed him. It's saying that we might have some kind of knowledge of what happened.
. . .
I don't want you to think that we are accusing you of anything. We're just here to find out some information.
. . . 
​A proper rights advisement under Article 31(b) and Tempia is more than a formality—it is not "just a piece of paper" or a mere "form" as the lead agent described it. And, more importantly, the plain language of Article 31(b) requires informing an accused or suspect of the "accusation" irrespective of whether "he is accused or suspected." The agent's departure from the statute's mandates—especially his explicit statement that he was not accusing Appellant of anything—rendered the rights advisement inadequate and Appellant's subsequent statements inadmissible in accordance with Article 31(d).

Even if we assume the rights advisement did not violate Article 31, we would still find, under the totality of the circumstances, that Appellant's due process rights were violated and that his statements to NCIS were not voluntary.

We find the military judge, in ruling otherwise, abused his discretion in three ways.

First, the military judge abused his discretion by failing to consider important facts. Specifically, while the military judge found it was "likely that there was some sort of admonishment by [LtCol Hill] to answer questions," he failed to consider the compound effect of that directive in relation to the agents' repeated reference to their need to report to Appellant's command. Similarly, as discussed supra, the military judge failed to consider the improper character of Appellant's rights warning.

Second, by focusing on LtCol Hill's intent rather than Appellant's perception, the military judge abused his discretion by using incorrect legal principles. The correct legal lens is from the perspective of the person making the statement. 
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Third, by finding LtCol Hill's conversation with Appellant "significantly attenuated" and doing so without discussion of what legal principle led to that conclusion, the military judge abused his discretion either by applying an incorrect legal principle or by applying the correct legal principle in a clearly unreasonable way.