United States v. Grijalva

Appellant was convicted of an unenumerated specification under Article 134, UCMJ, alleging: (1) that he knowingly, wrongfully, and without explicit consent broadcast an intimate visual image of Ms. B.C., who is identifiable from the visual image or from information displayed in connection with the visual image when he knew or reasonably should have known that the visual image was made under circumstances in which Ms. B.C. retained a reasonable expectation of privacy regarding any broadcast and when he knew or reasonably should have known that the broadcast of the visual image was likely to cause harm, harassment, or emotional distress for Ms. B.C. or to harm substantially Ms. B.C. with respect to her safety, business, calling, career, reputation, or personal relationships; and (2) that, under the circumstances, Appellant’s conduct was of a nature to bring discredit upon the armed forces. This embraced all but two of the elements of wrongful broadcast of an intimate visual image under Article 117a, UCMJ: (1) that the intimate visual image involves a person who is at least 18 years of age at the time the intimate visual image was created; and (2) that the accused’s conduct, under the circumstances, had a reasonably direct and palpable connection to a military mission or military environment. 

​The statutory language makes clear that Article 117a is tailored to address nonconsensual sharing of intimate images of adults that, “under the circumstances, had a reasonably direct and palpable connection to a military mission or military environment.” Article 117a(a)(4). Legislative history shows that the specific statutory purpose for doing so was to target the sharing/broadcasting of intimate images of servicemembers and veterans without their permission. 

a) Prohibition.-Any person subject to this chapter-
​
   (1) who knowingly and wrongfully broadcasts or distributes an intimate visual image of another person or a visual image of sexually explicit conduct involving a person who

     (A) is at least 18 years of age at the time the intimate visual image or visual image of sexually explicit conduct was created;
     (B) is identifiable from the intimate visual image or visual image of sexually explicit conduct itself, or from information displayed in connection with the intimate visual image or visual image of sexually explicit conduct; and
     (C) does not explicitly consent to the broadcast or distribution of the intimate visual image or visual image of sexually explicit conduct;
   (2) who knows or reasonably should have known that the intimate visual image or visual image of sexually explicit conduct was made under circumstances in which the person depicted in the intimate visual image or visual image of sexually explicit conduct retained a reasonable expectation of privacy regarding any broadcast or distribution of the intimate visual image or visual image of sexually explicit conduct;
   (3) who knows or reasonably should have known that the broadcast or distribution of the intimate visual image or visual image of sexually explicit conduct is likely-
     (A) to cause harm, harassment, intimidation, emotional distress, or financial loss for the person depicted in the intimate visual image or visual image of sexually explicit conduct; or
     (B) to harm substantially the depicted person with respect to that person's health, safety, business, calling, career, financial condition, reputation, or personal relationships; and

   (4) whose conduct, under the circumstances, had a reasonably direct and palpable connection to a military mission or military environment.

United States v. Harvey

Regarding factual sufficiency, this is the Court’s first case to address the application of the recently amended Article 66, UCMJ, standard of review.[*]

[*] Section 542(e) of the FY 2021 National Defense Authorization Act made the new standard applicable to offenses that occur after 1 Jan 2021.

Appellant contends that a “deficiency in proof” means a weakness in the evidence presented to support an element, not a complete absence of evidence on an element. The Government contends that “deficiency in proof. . . must allege a defect in evidence that, if valid, would undermine at least one element of an offense.” Complete absence of evidence on an element of a charged offense would, of course, render a conviction legally insufficient because a reasonable fact-finder could not find all the essential elements beyond a reasonable doubt.” The parties in this case substantially agree on this point.

​Regarding identification of the element (or elements) of the crime for which there is a deficiency in proof, we hold that this means that an appellant must identify a weakness in the evidence admitted at trial to support an element (or more than one element) and explain why, on balance, the evidence (or lack thereof) admitted at trial contradicts a guilty finding.

We hold that “appropriate deference” does not mean that this Court can no longer make any credibility determinations of witnesses, as the Government argues. This is because the statute explicitly allows this Court to “weigh the evidence and determine controverted questions of fact.” Obviously, testimony is part of the evidence to be weighed, and the qualifier in the subsection requires “appropriate deference” rather than entirely eliminating credibility determinations regarding testimony from the evidence to be weighed. And because members do not make special findings or explain how they weighed the evidence admitted at trial in reaching a general verdict (apart from sometimes indicating a minor variance in charged language or making a finding of guilt to a lesser included offense), we find that “appropriate deference to the fact that the trial court saw and heard the witnesses and other evidence” is a higher standard than the prior “recognizing that the trial court saw and heard the witnesses.”

​We find that the revised statute requires a departure from the prior practice, and the standard for factual sufficiency has become harder for an appellant to meet. It is clear that the factual sufficiency standard in the revised Article 66, UCMJ, statute has altered this Court’s review from taking a fresh, impartial look at the evidence requiring this Court to be convinced of guilt beyond a reasonable doubt, to a standard where an appellant has the burden to both raise a specific factual issue, and to show that his or her conviction is against the weight of the evidence admitted at trial. Thus, Congress has implicitly created a rebuttable presumption that in reviewing a conviction, a court of criminal appeals presumes that an appellant is, in fact, guilty. 

United States v. Figuereo

Figuereo presents a case where the court found a valid claim of ineffective assistance of counsel based on a conflict of interest created by the lead military defense counsel. The court did, however, limit the IAC to the sentencing case. The court also set-aside an enlisted panel's findings of another offense. In reassessment the court set-aside 10 months of confinement (which the appellant had already served by then) and left in place three months of confinement.

Initially, the military judge accepted the appellant's guilty pleas to several charges and specifications. The members convicted appellant of one specification of abusive sexual contact. The guilty plea was for wrongfully consuming alcohol while underage; two specifications of wrongful use of marijuana; two specifications of wrongfully communicating a threat; three specifications of assault consummated by a battery; and one specification of drunk and disorderly conduct. The military judge sentenced the appellant to 

​a total of 13 months’ confinement, total forfeiture of pay and allowances, and a bad-conduct discharge. The confinement portion of the sentence was segmented. Ten months of the confinement sentence was attributed to the specification of abusive sexual contact, Article 120, UCMJ, and was to run consecutively with the rest of the confinement term (three months) attributed to the other charges and their specifications. For the charges and their specifications to which the Appellant pleaded guilty, the military judge imposed between two and three months’ confinement all to run concurrently with each other.

United States v. London

Appellant argues that the Government failed to prove that he punched Mr. Hotel, that the testimony and forensic evidence failed to prove that Mr. Hotel was punched, and that the forensic evidence showed that Mr. Hotel’s injury was consistent with falling backwards from pulling on Appellant’s sweatshirt rather than being punched.

The Government here argues that there are three ways in which the circumstantial evidence in this case proves Appellant’s guilt. First, the medical expert testimony eliminated other potential causes for Mr. Hotel’s injuries. Second, the combination of medical evidence and witness testimony show that Appellant punched Mr. Hotel, while Appellant’s false explanation to a physician about his broken hand and his expression of remorse over the fight demonstrate consciousness of guilt. And third, the evidence shows that Appellant was the only one of his party close enough to Mr. Hotel to cause his injuries.

The link to the Navy military justice and NMCCA opinions has been updated. The listing of publicly available cases seems to be a work in progress (hopefully the search function will be fixed). 

New Article on Fort Hood Report

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