June 22, 2022, United States v. Covitz. Issue: Whether the military judge erred by denying challenges for cause against multiple panel members. Briefs not available.
June 15, United States v. Flores. The briefs are not available at this link.
United States v. Wilkinson. Appellant was convicted, by a military judge, in absentia of indecent viewing, attempted indecent viewing, two sexual abuses of a child, and indecent exposure. The MJ sentenced him to three years and a dismissal. ACCA had to decide whether the Appellant was voluntarily absent and burdens of proof. The court was satisfied trial could proceed in the Appellant's absence.
On a different note. It is not clear from the opinion when, if ever, the Appellant elected MJA. We know that forum is one of the four or five decisions only the accused can make. The R.C.M. 804 in effect says the accused "shall" be present and that the trial is his "place of duty." Once arraigned, trial may proceed if the accused's absence is voluntary. R.C.M. 903 regulates forum selection. The Discussion to Rule 903(a) says that "If an accused makes no forum selection, the accused will be tried by a court-martial composed of a military judge and members, as specified in the convening order." This is what we old folks called the default. But see, as did ACCA, United States v. Chandler, 80 M.J. 425, 429, n.2 (C.A.A.F. 2021) ("The provisions of a discussion section to the R.C.M. are not binding but instead serve as guidance."). R.C.M. 903(b) requires a written election or one made on the record. See also UCMJ art. 16(b)(3). R.C.M. 903(c)(2) requires affirmative action by the MJ to ensure an election for MJA is voluntary.
United States v. Amos, 26 M.J. 806 (A.C.M.R. June 24, 1988); United States v. Jungbluth, 48 M.J. 953 (N-M. Ct. Crim. App. 1998) are of some help with my question.
I acknowledge it's entirely possible that the Appellant had elected forum on the record before he went UA to some other place. It would seem proper then, if that's the case for a MJA trial to proceed. Cf. United States v. Stiner, 30 M.J. 860, 861 (N.M.C.M.R. 1990).
Does anyone know when and how forum was selected in this case?
If no written request or oral request on the record, perhaps United States v. Turner, 45 M.J. 531 (N-M. Ct. Crim. App. 1996) might be helpful in finding that the trial could not proceed MJA. See also, United States v. Mozie, No. 20130065, 2016 CCA LEXIS 273 *1 n.1 (A. Ct. Crim. App. Apr. 28, 2016). In United States v. Sharp, 38 M.J. 33 (C.M.A. 1993), cited by ACCA, the accused was tried by members.
The court concludes that,
In sum, the question before us is not whether we think it is more likely that appellant perished in the mountains or voluntarily absented himself from his trial. Rather, we can only provide relief if we find that the military judge's ruling constitutes an abuse of discretion. See Gore, 60 M.J. at 187 ("[T]he abuse of discretion standard of review recognizes that a judge has a range of choices and will not be reversed so long as the decision remains within that range.") (citation omitted). As such, based on our review of the entire record and for all of the reasons stated above, we conclude that the military judge did not abuse his discretion in: (1) finding that the government met its burden to prove by a
No. 22-0123/AF. U.S. v. Travis D. Pullings. CCA 39948. 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. IN ADDITION TO PRISON OFFICIALS, CAN THE DECISIONS OF MILITARY PERSONNEL SATISFY THE "DELIBERATE INDIFFERENCE" ASPECT OF THE CRUEL AND UNUSUAL PUNISHMENT TEST WHEN THEY REPEATEDLY SEND MILITARY INMATES TO A LOCAL CIVILIAN CONFINEMENT CENTER WITH A HISTORY OF INHUMANE LIVING CONDITIONS FOR INMATES?
II. ADDITIONALLY OR ALTERNATIVELY, DID APPELLANT SUFFER CRUEL AND UNUSUAL PUNISHMENT FOR 247 DAYS AND NIGHTS AT LOWNDES COUNTY JAIL?
Pullings at AFCCA here.
Another case in a history of issues with civilian pretrial and posttrial confinement. Most, but not all, seem to arise in AF cases. Kawai is a recently decided one.
A very broad search in Lexis with the search terms "civilian" and "conditions" and ""confinement conditions"" brought up a list of 237 cases. Looking at only the first 50, 42 were AF cases going back to September 2019. Of these, 11 were about military confinement. The local facilities include Otero County, NM (note, the Army uses this facility), whichever civilian jail services Vandenberg AFB, CA, Sutter County Jail, CA, Lowndes County Jail, GA, Hillsborough County Jail, FL, "Bossier Max," SC, Taylor County Jail, TX, the local facility that services McConnell AFB, KS, the local facility that services Tinker AFB, OK, Tom Green County Jail, TX, the facility that services Dover AB, DE, Comal County Jail, TX, Elmore County Jail, ID,
Appellant was ordered into pretrial confinement, which included both a civilian confinement facility and a military confinement facility. While in the civilian facility, Appellant wore the standard striped jail uniform. When Appellant returned to Ellsworth AFB for appointments other than those with defense counsel, she wore the striped jail uniform. Appellant's diet during pretrial confinement caused weight gain while in the civilian facility and subsequent weight loss while in the military facility.
United States v. Hepfl, No. ACM 39829 (f rev), 2021 CCA LEXIS 491, at *3-4 (A.F. Ct. Crim. App. Sep. 24, 2021). A UCMJ art. 13 motion was waived as part of her PTA. (Was ADC aware the client was being brought to on-base appointments in prison clothes?)
In United States v. Damm, the appellant argued his confinement conditions violated Article 58, UCMJ, "because he was treated differently from civilian confinees at [the confinement facility]." The court held "[a]s with alleged violations of the Eighth Amendment and Article 55, prisoners must first exhaust administrative remedies before invoking judicial intervention to remedy alleged violations of Article 58(a)." Because the court determined appellant "failed to exhaust his administrative remedies," the court did not consider his Article 58, UCMJ claims. . . . Here, appellant does not argue he exhausted his administrative remedies, but instead speculates such exhaustion "would have been futile in this case."
Query: What steps are taken by the military or civilian facility to ensure the detainee is aware of their complaint processes?
United States v. Grillo, No. ARMY 20210309, 2022 CCA LEXIS 295, at *4-5 (A. Ct. Crim. App. May 18, 2022).
The message here is to trial defense counsel, I think. The burden is on you to do the following post-trial.
1. Advise and encourage using the facility complaint system and also the military system at the same time.
2. Raise the issue with the SJA.
3. Put the issue in the 1106.
4. Reread United States v. Willman, 81 M.J. 355 (C.A.A.F. 2021) for the consequences of first raising the issue on appeal.
United States v. Simmons. His third appearance brings him some sentence relief.
An officer panel originally convicted of four sexual assaults of a child, extortion, and producing CP. He was sentenced to 12 years, TF, RiR, and a DD in 2017.
On his first look at AFCCA, the case was returned for posttrial errors.
On reappearance, the AFCCA affirmed 11 years, 11 months, and 20 days confinement because of posttrial delay.
CAAF set aside the finding of guilty for extortion in United States v. Simmons, __ M.J. ___, 2022 CAAF LEXIS 205 (C.A.A.F. 2022).
Appellant timely appealed the decision of the CCA and this Court granted review of the following issue:
The defense vigorously objected to the Government’s motion, arguing that “during the government’s case-in-chief, they failed to elicit any testimony that the extortion occurred during [the] time period [originally charged] . . . . And so the amendment here, this major change here, is made to cure a defect in their presentation of the evidence.” The defense further stated: “Now our particular concern here, one, is of a notice type nature, particularly given that the government is moving to amend the charge sheet, . . . basically [just] before instructions [begin].” The civilian defense counsel also argued that “the dumping [of] 250 pages of text messages on me the night before trial, . . . hardly constitutes notice,” and that he might have cross-examined the complaining witness differently if the Government had acted in a timely manner. In addition, the defense noted that by enlarging the charged time frame, the Government was now alleging that Appellant extorted CL when she was still a minor, and although age is not an element of the offense, her young age made the alleged offense “absolutely more serious” and could result in “an enhanced sentence.” For these reasons, civilian defense counsel concluded, the Government’s proposed amendment to the charge sheet was “highly prejudicial.”
Simmons, Slip op. at 4. The AFCCA then reassessed the sentence and affirmed confinement of nine years, 11 months, and 20 days.
Tabor pled guilty to sexually abusing a child, five specifications of indecent language, and one specification of indecent conduct, in violation of Articles 120b and 134, Uniform Code of Military Justice [UCMJ], for communicating indecent language to Ms. Charles and encouraging her to masturbate while her ten-year-old daughter, Miss Bravo, was lying in bed next to her. He was sentenced to 7.5 years, TF, RiR, and a DD. The PTA called for all but 60 months to be suspended.
While standing duty in his squadron’s ready room, Appellant engaged in a sexually explicit text message conversation with Ms. Charles, a former high school classmate of his. During their exchange, Ms. Charles disclosed to Appellant that her ten-year-old daughter, Miss Bravo, was in the bed with her, and sent Appellant a photo of Miss Bravo, who was lying down, facing away from Ms. Charles. She told Appellant she intended to masturbate once her daughter fell asleep. Appellant responded that he was sexually aroused by the thought of Ms. Charles masturbating in the bed with her daughter and encouraged Ms. Charles to “do it anyway,” even though Miss Bravo was not yet asleep.
The assigned errors in Tabor were,
In Schmidt, the CAAF issues were,
I. Whether the phrase "in the presence of" used to define the term 'lewd act' in Article 120b(h)(5)(D) requires the child to be aware of the lewd act or merely that the accused be aware of the child's presence.
II. Whether Appellant affirmatively waived any objection to the military judge's instructions and the failure to instruct on the affirmative defense of mistake of fact.
III. Whether, having assumed deficient performance by counsel, the lower court erred in finding no prejudice.
United States v. Schmidt, 82 M.J. 68, 71-72 (C.A.A.F. 2022).
The court found waiver. Yet, Judge Sparks agreed with NMCCA on the statutory interpretation. But C.J. Ohlson and J. Maggs and J. Hardy (also still on the court) disagreed with the statutory interpretation. So this is not a situation where the CAAF actually decided the issue.
Good chance of a CAAF grant?
In in re Kawai, a pro se petition,
On 29 January 2022, Petitioner requested this court grant him extraordinary relief in what he styled as a “Motion for Compassionate Release and Reduction in Sentence,” pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), and the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018). This court received, by mail, Petitioner’s request on 2 March 2022, and docketed his petition on 11 March 2022; the Court did not order briefs by the Government or Petitioner in response. We conclude we do not have jurisdiction to adjudicate Petitioner’s request and deny the petition.
The petitioner was convicted in 2001 of various offenses related to his killing of another Airman. He is now at the U.S.P., Atwater, CA.
On 15 April 2021, Petitioner requested that the Federal Bureau of Prisons (BOP) make a motion on his behalf for a sentence reduction pursuant to the “extraordinary or compelling circumstances element codified in 18 U.S.C. § 3582(c)(1)(A)(i).” Petitioner argued he was a good candidate for compassionate release based on (1) the coronavirus disease 2019 (COVID-19) pandemic; (2) his age at the time his crimes were committed; (3) his lengthy term of imprisonment; (4) his rehabilitation efforts; and (5) his belief that he was not a public safety risk. On 25 May 2021, the BOP denied his request, stating that “[r]eleasing [Petitioner] prior to the completion of [his] sentence would greatly minimize the severity of the offense” and after considering the above factors, it “determined that [his] release would pose a danger to the safety of others or the community.” n.3.
As a collateral impact of courts-martial being ad hoc tribunals there is a problem.
Petitioner’s request for compassionate release under these particular statutes is a case of first impression for this court. However, while Petitioner did not style his request as a writ of habeas corpus, we will treat his petition as analogous to such in order to resolve the question of whether we have jurisdiction. The problem for Petitioner is the review of a motion for compassionate release is jurisdictional. “A motion to file for compassionate release can only be brought before the sentencing judge.” Ferguson v. United States, No. 1:22-cv10542, 2022 U.S. Dist. LEXIS 50986, at *2 (E.D. Mich. 21 Mar. 2022). Yet, “[g]eneral courts-martial are ad hoc proceedings which dissolve after the purpose for which they were convened has been resolved.” Witham v. United States, 355 F.3d. 501, 505 (6th Cir. 2004). Because Petitioner’s court was dissolved after his case, and because his case is final under Article 76, UCMJ, there is no sentencing court within the military service courts in which Petitioner may bring a motion under 18 U.S.C. § 3582(c)(1)(A)(i).
Query: If Congress created standing military trial courts, coulld it avoid a problem for future 'Kawai's?'
However, Congress has charged federal district courts with exercising jurisdiction over habeas corpus petitioners who are imprisoned as a result of court-martial convictions. See Burns v. Wilson, 346 U.S. 137, 139 (1953); Chapman, 75 M.J. at 601; see also Gilliam v. Bureau of Prisons, No. 99-1222, 2000 U.S. App. LEXIS 3684, at *3 (8th Cir. 10 Mar. 2000) (unpub. op.). Federal district court is also the proper venue for Petitioner’s motion. See Owens, 2020 U.S. Dist. LEXIS 61460, at *2.
In United States v. Jackson, an "enlisted" panel convicted Appellant of four A&B on his spouse, three assaults on an intimate partner, and two failures to obey firearm registration regulations, for which he was sentenced to three years, RiR, a BCD, and a reprimand. On appeal, his issues included,
(1) The assault & battery by grabbing KM’s neck and torso with his arms, as charged in Specification 2 of Charge II, is legally and factually insufficient.
(2) The failure to obey a lawful general regulation are legally and factually insufficient because the regulation at issue was not properly published and cannot qualify as a general regulation.
(3) TC improperly cross-examined Appellant by referring to Appellant’s attendance at a domestic violence treatment program and by asking him whether the mechanism of injury was consistent with the opinion of an expert witness called by the Government.
(4) in a related claim, DC were constitutionally ineffective for failing to timely object to trial counsel’s improper cross-examination of Appellant.
(5) The MJ failed to instruct the panel that a guilty verdict must be unanimous was not harmless beyond a reasonable doubt.
(6) TC’s sentencing argument was improper because it faulted Appellant for failing to apologize, it appealed to what the “audience” would think, and it asked the members to consider the “trauma” inflicted upon a nonvictim.
(7) The MJ erred by instructing the members in sentencing that they will not draw any adverse inference from the fact that Appellant elected to make a statement that was not under oath after the military judge specifically asked the Defense whether it wanted this instruction and the Defense replied it did not.
(8) The CA erred by failing to take complete action on the sentence.
(9) The CA's reprimand improperly commented on Appellant’s defense at trial and rights against self-incrimination, thereby rendering the reprimand inappropriately severe and in violation of Appellant’s rights under the Fifth and Sixth Amendments6 and Article 37, UCMJ, 10 U.S.C. § 837.
(10) Untimely post-trial processing.
On the XE and IAC, the court finds,
Appellant forfeited claims that trial counsel’s questioning of Appellant was improper by failing to object at trial and that Appellant has not met his burden to demonstrate plain error. The court likewise finds Appellant has failed to show that trial defense counsel were constitutionally deficient by failing to object to trial counsel’s questions put to Appellant on cross-examination.
The opinion reads as if the defense opened the door. The defense had proffered a violation of Mil. R. Evid. 404(b).
We are not persuaded that Mil. R. Evid. 404(b)(1) is the correct rule to decide this matter. Instead, we look to Mil. R. Evid. 404(a)(2)(A), which governs situations where an accused offers evidence of his character. We also look to the law of impeachment by contradiction. See, e.g., United States v. Sojfer, 47 M.J. 425, 427 (C.A.A.F. 1998). This method of impeachment “involves showing the tribunal the contrary of a witnesses’ asserted fact, so as to raise an inference of a general defective trustworthiness.” United States v. Banker, 15 M.J. 207, 210 (C.M.A. 1983) (first citing 3A John H. Wigmore, Evidence § 1000 (Chadbourne rev. 1970); and then citing Charles T. McCormick, McCormick’s Handbook of the Law of Evidence § 47 (E. Cleary 2d ed. 1972)).
On the question of the TC's arguments, I have a question. Is there ever a case when it is in the best interest of the accused that he not make any statement in sentencing? There is at least one, but it's unrelated to the facts of this case.
On the CA's reprimand, how should we interpret this part of the reprimand in the context of this case?
You have been made aware countless times over the course of your career that domestic violence is both abhorrent and illegal. The fact that you strangled two women you supposedly loved is so cowardly and reprehensible that I struggle to find words powerful enough for a rebuke. This is made even more difficult because you physically assaulted your loved ones just steps away from your child! Given the tearful statements these women made during your sentencing hearing, it is clear that the damage you inflicted upon them is irreparable. That you had the audacity to downplay their obvious physical and emotional harm is not only repugnant, it demonstrates that you feel neither shame nor regret over your actions. Accordingly, you are hereby reprimanded!
In United States v. Pietr Lewis, the court agreed that it was error to admit a company grade UCMJ art. 15 punishment in sentencing, over defense objection. The 15 was from a prior duty station when he was a PFC. It appears Army Regulation 27-10 para. 3-37b(1) (their JAGMAN) required destruction of the 15 once he PCS'd. However, the TC relied on the 15 being maintained in a Military Justice Online database for up to two years, IAW 27-10 para. 3-37h.
Appellant pled guilty to involuntary manslaughter and was sentenced to 42-months, RiR, and a DD.
On 11 June 2020, appellant and a group of fellow soldiers went out to a few bars to socialize. Appellant, being under 21, was one of the designated drivers. By the end of the evening, only appellant and the victim remained at the bar. Despite being under the legal drinking age of 21, and a designated driver, appellant consumed "about five to seven drinks" that evening.
The court having found error, found prejudice and reassessed the sentence to 36-months, RiR. and a DD.
In Tate, the court reverses the Army Court.
During the first day of Appellant’s sentencing hearing, the court’s recording device failed, resulting in there being no verbatim transcript for most of the day’s proceedings. Although the Rules for Courts-Martial (R.C.M. or Rules) generally require the record of trial to “include a verbatim transcript of all sessions except sessions closed for deliberations” in serious cases—and impose consequences when that requirement cannot be satisfied—until 2019 the Rules did not authorize any remedial actions that a court could perform to cure a nonverbatim transcript. R.C.M. 1103(b)(2)(B), (f) (2016 ed.). 1 In the absence of any guidance from the Rules, military courts have long authorized three potential solutions when court recording devices fail: (1) declaring a mistrial; (2) reconstructing the record of trial; and (3) starting anew. In this case, the military judge stated that he was going to start Appellant’s sentencing hearing anew, but the record indicates that he neither started anew nor performed one of the other two judicially approved remedies.
No. 22-0122/AF. U.S. v. Katelyn L. Day. CCA 39962. 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:
WHETHER ATTEMPTED CONSPIRACY, "A CREATURE UNKNOWN TO FEDERAL LAW," IS A VIABLE OFFENSE UNDER THE UCMJ.
The AFCCA unpublished opinion is here.
The Appellant pled guilty to attempted possession of fentanyl, attempted conspiracy to commit premeditated murder, two solicitations to commit murder, an addtional attempted conspiracy to commit murder, for which she was sentenced to ten years, RiR, and a DD. The issues before AFCCA were,
Generally, the crimes originated from the Appellant's unhappiness with her husband and money troubles--which an insurance policy payment may have reconciled. Apparently, a drug overdose was to be the means.
Also in November 2019, Appellant talked to a co-worker, JJ, about her issues with TD. According to the stipulation of fact, Appellant told JJ something to the effect of, “I need my husband to go away.” Unsure of Appellant’s context, JJ responded, “Huh?” Appellant then essentially stated, “I will give you $50,000[.00], half of the insurance money, to kill him.” JJ responded, “I’m not going to kill your husband. Get someone else to do that.” Appellant told JJ she had contacted previous boyfriends to ask them to kill TD, but they told her they would not do it. JJ told Appellant, “There is no perfect crime. Don’t you watch reality TV crime shows? You are going to get caught[.]”
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