United States v. Brinkman-Coronel.Appellant pled not guilty, elected military judge alone and was convicted of attempted sexual assault of a child who has attained the age of twelve years, attempted sexual abuse of a child, absence from place of duty, communication of indecent language, two specifications of wrongful possession of child pornography, and three specifications of wrongful distribution of child pornography. The military judge sentenced him to dismissal and nine years and ten days confinement. ACCA, in a divided opinion, affirmed. On appeal, there are two issues: 1. Did ACCA err in finding there was no abuse of discretion by the military judge in failing to recuse himself based on "the appearance of bias?" 2. Did the military judge abuse his discretion in denying a motion to suppress evidence discovered from the search of Appellant’s ‘vacuum phone’ and all derivative evidence?” RecusalAppellant argues that the military judge should have recused himself because Appellant’s charged offenses occurred during the military judge’s tenure as the SVP and in the same jurisdiction where he served as the “subject matter expert for all of Hawai‘i.” This provided the military judge, or so Appellant argues, with a unique perspective regarding “tactics and techniques” used by law enforcement. The relevant facts. At Appellant’s arraignment, prior to inviting either side to inquire whether there were grounds to challenge his qualifications to sit as military judge, the military judge sua sponte disclosed that he served as the “special victim prosecutor for Hawai‘i from 2018 until approximately May of 2021.” In that capacity, he worked with both the detailed trial and defense counsel and assisted them with investigations involving sexual assault, child abuse, and domestic violence. The military judge also worked professionally with the assistant trial counsel who was a special victim’s counsel from 2020 until 2021. However, he had not supervised any of the three counsel and classified his relationship with them as “professional.” The military judge clarified that he “[knew] nothing of [the] case except what’s been provided to [him] by counsel through the course of this court-martial referral process. And . . . just to be sure, [he] checked files.” During voir dire, the military judge repeatedly affirmed that he knew nothing of the case. The military judge volunteered that, from the context of Charge I, he assumed the charge was related to Operation Keiki Shield.1 Although Appellant’s misconduct occurred toward the end of the military judge’s tenure as special victim prosecutor (SVP), he was not present in any meetings regarding Appellant’s case. The military judge was confident that this was so because he kept files on cases that he reviewed and because he was “sectioned off” during this time, presumably to avoid conflicts of interest. The military judge confirmed that neither trial counsel nor any other member of the government sought his advice on Appellant’s case when he was the SVP. At ACCA. The Court gave "little deference [to the military judge's decision not to recuse] because he failed to provide his rationale" for denying recusal. However, the Court found no abuse of discretion. Had the military judge provided a robust of his rationale for non-recusal, maybe we would read the abuse of discretion must strike the court with "the force of a five-week-old unrefrigerated dead fish” test applied. See United States v. Rivera, 80 M.J. (N-M. Ct. Crim. App. 2022) quoting United States v. Cooper, 80 M.J. 664, 672 n.41 (N-M. Ct. Crim. App. 2020); Parts & Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F. 2d 228, 233 (7th Cir. 1988). Rather, the Court seemed to apply the intermediate test of having a thrashing member of the phylum Chordata on the line. Perhaps the best test for the appellant would be that of a jerking float and maybe something on the line with nothing show whether it was a fish or discarded boot on the line--or if you watch enough detective shows--a body. At CAAF. In starting to read this case, I was instantly reminded of Jones. Appellant asserts that Judge D. should have recused himself from the panel of the Court of Criminal Appeals reviewing his case. Prior to his appointment to the Court of Criminal Appeals, Colonel D. served as the Director of the Appellate Government Division of the Navy-Marine Corps Appellate Review Activity (Appellate Government Division [Code-46]). He served as Director from July 1995 to May 26, 1998. On June 16, 1998, Col. D. was sworn in as a judge on the lower court. United States v. Jones, 55 M.J. 317 (C.A.A.F. 2001). Have you ever wondered about the detailing policy of judges in situations like Jones, where the military judge comes from a (sometimes local) prosecution shop/SJA in the same circuit? There can be an interesting issue. See, e.g., United States v. Harris, 66 M.J. 781 (N-M. Ct. Crim. App. 2008); United States v. Al Bahlul, 807 F. Supp. 2d 1115 (U.S.C.M.C.R. 2011).
The Colonel Court agrees there is no actual bias reason for recusal and moves to "whether, taken as a whole in the context of this trial, [the] court-martial’s legality, fairness, and impartiality were put into doubt by the military judge’s actions.” United States v. Tapp, 85 M.J. 19, 27 (C.A.A.F. 2024) (alteration in original) (internal quotation marks omitted) (quoting Martinez, 70 M.J. at 157-58)." There were two principal (sic) reasons advanced for recusal under the appearance test: (1) [T]he military judge should have recused himself because Appellant’s charged offenses occurred during the military judge’s tenure as the SVP and in the same jurisdiction where he served as the “subject matter expert for all of Hawai‘i.” This provided the military judge, or so Appellant argues, with a unique perspective regarding “tactics and techniques” used by law enforcement." (2) Wait for it, "[T]he military judge’s recusal was warranted based on his supervisory prosecutorial position before joining the bench. In essence then, Appellant invites this Court to apply the vertical imputation standard examined in United States v. Jones, 55 M.J. 317, 319 (C.A.A.F. 2001), under which the knowledge and actions of subordinates are attributed to their superiors." Similar to Jones, the Court looks to specific facts or absence of facts and finds several relevant points which support non recusal.
The Court finds that there was no need for recusal in this case.
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"WASHINGTON ― President Donald Trump has issued a full and unconditional pardon to a former U.S. army officer who was found guilty by a special court martial during the Biden administration for refusing to follow COVID-19 safety measures.
Former Lt. Mark Bashaw, who was discharged from the Army after his 2022 conviction, received the pardon from Trump on May 28, a senior White House official confirmed to USA TODAY." In our links (to the right), we have added Article 32 calendars and trial, for those that are publicly available.
United States v. MarreroLast year, news broke of a significant incident involving the unauthorized purchase and use of a Starlink wifi setup aboard a Navy ship. Andrew Dyer, Heinous and egregious conduct among one ship's chiefs in illegal Wi-Fi scheme, investigation says. KBPS 65, 6 September 2024. In October 2024, The Navy said Friday it has punished just one additional chief petty officer -- out of 18 sent to Captain's Mast -- and an officer from the USS Manchester more than a year after it caught a group of chief petty officers running an illicit Wi-Fi network aboard the ship. Konstantin Toropin, Navy Confirms Just One More Chief, Officer Punished for Illicit Wi-Fi Network on Warship. Military.com 18 October 2024. With that background, Appellant Marrero's legal issue follows because she was sentenced to reduction of one grade. She now argues that her sentence was inappropriately disparate from the punishment of her eighteen co-actors because they received administrative punishment and did not lose rank. We are unconvinced. Should this case go to CAAF, is there an opportunity to address the following point raised by NMCCA in n.14? The Court need not decide today whether a conviction in a judicial proceeding is a prerequisite for conducting the “closely related” analysis under Sothen. See United States v. Behunin, 83 M.J. 158, 161–62 (C.A.A.F. 2023) (suggesting only sentences adjudged at court-martial are to be used to determine if a particular sentence is disparate); United States v. Swisher, 85 M.J. 1 (C.A.A.F. 2024) (holding a “closely related” analysis is required where the co-actor was convicted in civilian criminal judicial proceeding); see also United States v. Taper, No. 202400014, 2025 CCA LEXIS 71, *9–10 (N-M. Ct. Crim. App. Feb. 25, 2025) (unpublished) (when comparing Seaman Taper’s sentence to administrative punishment of a co-actor the court found that there was “no sentence to compare”). Like NMCCA, CAAF might avoid addressing the footnoted question because it doesn't matter, similar to situations where an appellate court can skip the legal issues and go to the bottom line of 'it doesn't matter because there is no prejudice anyway,' or words to that effect. Thus a potential rev. denied? Appellant led the effort to install the unauthorized Wi-Fi and—what truly separates her misconduct from that of her co-actors—she abused her rank, position, and trust by committing numerous crimes to conceal the group’s actions and prolong the scheme’s existence. The impact of Appellant’s misconduct was “[h]uge,” as it negatively affected both the operational effectiveness of the ship and the morale of the crew. The ship was “left pier-side in Guam for the last 2 months of deployment when [it] could have been operational. . . .” Appellant abused her rank and her special position of trust with the commanding officer to conceal her misconduct and now contends that the loss of rank was too severe of a consequence by comparison. United States v. Jacinto"A general court-martial convicted Appellant, contrary to his pleas, of rape of a child, sexual abuse of a child, and child endangerment by culpable negligence[.]" United States v. Jacinto, 79 M.J. 870, 875 (N-M Ct. Crim. App. 2020). In it's latest opinion (per curiam), the Court explains why a another remand to NMCCA is necessary. In 2021, we initially granted review to determine whether the military judge abused his discretion when he denied defense requests for a continuance [1] and for in camera review of E.B.’s mental health records. Jacinto, 81 M.J. at 351. However, upon review, we found that the record was “unclear and incomplete,” and that we could not make “an informed decision about whether the military judge’s crucial fact findings [were] clearly erroneous.” We therefore “vacate[d] the decision of the lower court in part and remand[ed the case] for further factual development of the record.” In doing so, we directed the lower court to “obtain the missing record evidence and any other evidence (such as affidavits from medical providers) relevant to whether E.B. was diagnosed with psychotic agitation in and to make “any other findings of fact necessary to resolve the granted appellate issues.” Slip op. at 5. The nature of the disclosure and issue was, In pretrial litigation, Appellant attempted to obtain medical records documenting Emily's week of inpatient treatment at the hospital. The military judge ordered the hospital to produce Emily's prescription records and her mental health diagnoses. He found the remainder of her records were privileged and that Appellant had not made a showing of vital necessity to require production or an in camera review. United States v. Jacinto, 79 M.J. 870, 877-78 (N-M Ct. Crim. App. 2020). Upon remand from CAAF the first time, NMCCA ordered a Dubay hearing after which Jacinto returned to CAAF. However, After hearing oral argument in this case, we ordered the Government to submit an affidavit from Dr. Harwant Gill, E.B.’s treating psychiatrist. This affidavit was supposed to address “why E.B. was prescribed Thorazine and whether E.B. exhibited psychotic agitation in May 2017.” Having received various additional "facts," the Court concluded that, Even after all of this litigation, this Court still does not know the answer to two crucial questions: Why was E.B. prescribed Thorazine, and was E.B. diagnosed with psychotic agitation in May 2017? Dr. Gill’s affidavit was unresponsive on these points. He stated that he no longer works at the hospital where E.B. was treated, he does not remember E.B.’s case, and “[r]etrieving the hospital records would be the only way to answer the Court’s questions.” The Court observed that during the Dubay hearings all of the relevant records of the alleged treatment were obtained for in camera review by the military judge. Slip Op. at 3. Ever helpful, CAAF writes n.3. One obvious step that should be considered is providing Dr. Gill with relevant portions of E.B.’s medical records so that he can attempt to answer the key questions noted above. If this approach is unproductive for whatever reason, at a minimum Dr. Gill should be asked about the circumstances that would cause him, as the Medical Director at the Department of Psychiatry at a public hospital, to prescribe Thorazine to a minor who had been hospitalized for inpatient mental health treatment. The alleged offenses appear to have happened well before 2017 when an investigation began.
Sentence adjudged 25 June 2018. He was sentenced to eight years confinement. If he got only the standard good time credit he should have been released by now at his Minimum Release Date (MRD). If he's been classified as a "denier," then it's unlikely he got paroled. NMCAA first decides the case in April 2020. United States v. Jacinto, 79 M.J. 870 (N-M Ct. Crim. App. 2020). Subsequent History: Review granted by United States v. Jacinto, 81 M.J. 57, 2021 CAAF LEXIS 68 (C.A.A.F., Jan. 14, 2021). Later proceeding at United States v. Jacinto, 81 M.J. 235, 2021 CAAF LEXIS 363, 2021 WL 1940027 (C.A.A.F., Apr. 20, 2021). Vacated by, in part, Affirmed by, in part, Remanded by United States v. Jacinto, 81 M.J. 350, 2021 CAAF LEXIS 686, 2021 WL 3043325 (C.A.A.F., July 15, 2021). Writ denied by, Stay denied by, Motion granted by, Motion denied by In re E.B., 2022 CCA LEXIS 155 (N-M.C.C.A., Mar. 17, 2022). Stay granted by United States v. Jacinto, 83 M.J. 145, 2022 CAAF LEXIS 913, 2022 WL 18275846 (C.A.A.F., Dec. 22, 2022). Stay denied by, Motion denied by, As moot, Stay denied by, As moot United States v. Jacinto, 83 M.J. 182, 2023 CAAF LEXIS 52, 2023 WL 2115977 (C.A.A.F., Jan. 26, 2023). Decision reached on appeal by United States v. Jacinto, 2024 CCA LEXIS 14, 2024 WL 234699 (N-M.C.C.A., Jan. 18, 2024). Petition for review filed by United States v. Jacinto, 2024 CAAF LEXIS 255, 2024 WL 2963489 (C.A.A.F., May 7, 2024). Review granted by United States v. Jacinto, 2024 CAAF LEXIS 415 (C.A.A.F., July 19, 2024) Later proceeding at United States v. Jacinto., 2025 CAAF LEXIS 123, 2025 WL 464277 (C.A.A.F., Jan. 29, 2025) (oral argument). Later proceeding at United States v. Jacinto, 2025 CAAF LEXIS 74, 2025 WL 466921 (C.A.A.F., Jan. 31, 2025). Petition for review filed by United States v. Jacinto, 2025 CAAF LEXIS 110 (C.A.A.F., Feb. 12, 2025). Would you call Lew Alcindor “Kareem Abdul-Jabbar’s predecessor person”? If not (and gosh I hope you wouldn’t), then please don’t call CoMA “CAAF’s predecessor court.” The United States Court of Appeals for the Armed Forces has had three names during its 74 years of operation. Like expecting parents anguishing over what to name their child (been there, done that), the UCMJ’s framers debated the best appellation for the new civilian high court they created for the military justice system. Uniform Code of Military Justice, Hearings on H.R. 2498 Before a Subcomm. of the House Comm. on Armed Services, 81st Cong. 673, 1276-78 (1949). Suggestions included “the Judicial Council,” “the Supreme Court of Military Appeals,” and “Military Court of Appeals.” They finally christened the bouncing baby judicial body the “Court of Military Appeals.” Uniform Code of Military Justice art. 67(a)(1), Pub. L. No. 81-506, 64 Stat. 107, 129 (1950). From the outset, CoMA made an addition to its name. Rule 1 of the court’s inaugural Rules of Practice and Procedure announced, “The Court adopts ‘United States Court of Military Appeals’ as the title of the Court.” C.M.A. R. 1, 1 C.M.A. xxiii. In 1968, that appellation became official when President Lyndon Baines Johnson signed into law a standalone statute changing CoMA’s name to the “United States Court of Military Appeals.” Act of June 15, 1968, Pub. L. No. 90-340, 82 Stat. 178 (1968). The statute explained that the United States Court of Military Appeals “is a continuation of the Court of Military Appeals as it existed prior to the effective date of this Act.” Id. at § 2, 82 Stat. at 178-79. In other words, same court, new name. The National Defense Authorization Act for Fiscal Year 1995 included a section titled, “RENAMING OF THE COURT OF MILITARY APPEALS.” Pub. L. No. 103-337, § 924, 108 Stat. 2663, 2831 (1994). The statute provided that the “United States Court of Military Appeals shall hereafter be known and designated as the United States Court of Appeals for the Armed Forces.” Id., § 924(a)(1), 108 Stat. at 2831. In other words, same court, new name. Significantly, the judges serving at the time of the moniker modification considered the renamed court to be the same judicial entity as CoMA. In their first opinion issued under the altered appellation, CAAF’s judges repeatedly referred to caselaw from the C.M.A./U.S.C.M.A. era as decisions of “this Court.” United States v. Loving, 41 M.J. 213, 236, 252, 272, 280, 290 (C.A.A.F. 1994), aff’d, 517 U.S. 748 (1996) (referring to “precedents of this Court,” “this Court’s previous cases,” “our decision in United States v. Teters, 37 M.J. 370 (CMA 1993),” “[t]he words of this Court in United States v. Teeter[, 16 M.J. 68 (C.M.A. 1983)],” and “guidance from this Court in United States v. Curtis, 33 M.J. 101 [C.M.A. 1991]”); id. at 303, 304, 309 (Sullivan, C.J., concurring) (referring to “the decision of this Court in United States v. Smith, 27 M.J. 242 (1988),” “Former Chief Judge Everett . . . opined for this Court,” “this Court has held,” “this Court’s holding in United States v. McClain, 22 M.J. 124 (1986)”); id. at 311 (Wiss, J., dissenting) (stating “[t]his Court first considered whether the sentencing scheme for capital cases in the military justice system passed constitutional muster in United States v. Matthews, 16 M.J. 354 (1983),” and “[t]he chaos continued in this Court” (referring to changes of counsel in the case in 1992). Similar examples abound. E.g., United States v. Batchelder, 41 M.J. 337, 338 (C.A.A.F. 1994) (referring to “our opinion in United States v. Howard, 20 M.J. 353 (C.M.A. 1985)”); United States v. Martinsmith, 41 M.J. 343, 344 (C.A.A.F. 1995) (“This Court granted review on November 24, 1993”); United States v. Cornelious, 41 M.J. 397, 398 (C.A.A.F. 1995) (referring to “our decision” in United States v. Carter, 40 M.J. 102 (C.M.A. 1994)). It was not until 2011 that a CAAF opinion included a reference to the Court of Military Appeals or United States Court of Military Appeals as CAAF’s “predecessor.” United States v. Pope, 69 M.J. 328, 336 (C.A.A.F. 2011) (Stucky, J., concurring) (referring to “this Court’s predecessor” when discussing a 1985 U.S.C.M.A. opinion). Kareem Abdul-Jabbar is the same person as Lew Alcindor. And the United States Court of Appeals for the Armed Forces is the same court as the Court of Military Appeals and United States Court of Military Appeals. Calling either of the latter CAAF’s “predecessor court” is a technical foul. DWIGHT H. SULLIVANAuthor: Dwight Sullivan is a senior counsel at the Air Force Appellate Defense Division and a professorial lecturer in law at the George Washington University Law School. The views expressed in this guest rant are those of the author and do not necessarily reflect the views of the Department of Defense or any of its components.Andrew W. Eichner, THE REAL IMPACT OF GENERAL DETERRENCE: EMPIRICAL INSIGHTS FROM THE ROBBERY DATA OF THREE AMERICAN CITIES. 74 Cath. U. L. Rev. 625 (2025). General deterrence theory relies on the critical assumption that prospective offenders will be deterred from committing crimes when they are aware of the apprehension and punishment of others. This idea has been reiterated across thousands of years of Western political thought and has significant implications in modern American criminal sentencing, though it has not been historically subjected to rigorous testing. The recent availability of voluminous crime data permits a deeper examination of the real impact of sentencings on crime trends and allows the opportunity for previously impossible analyses regarding the efficacy of general deterrence. To examine whether there is evidence to support the critical assumption underlying general deterrence, this article examines five years of robbery data from three geographically, politically, and demographically diverse American cities: Boston, Massachusetts; Mesa, Arizona; and Washington, District of Columbia. By analyzing robbery trends in relation to the announcement of robbery sentences in these cities, the author seeks to determine whether there is an offense-relative general deterrence relationship between sentences and subsequent robberies committed within each community. An integrative data analysis also examines the aggregate data from these three cities to identify broader patterns indicative of the efficacy of general deterrence in criminal sentencing. The Wager is a decent read. Harkens back to law school and R. v. Dudley and Stevens.
People v. Sherlock exemplifies the difficult sometimes when deciding if a court-martial conviction will result in sex offender registration. What was the person convicted of and in what state is the person resident (or otherwise required to register if visiting for an extended period of time). Often the "foreign registration clause" of the applicable statute is is the issue. Sherlock was convicted in federal district court of possessing CP. The Court in Sherlock reaffirmed that Applying the clear and unambiguous statutory language in this case, defendant cannot be designated as "sexually violent" because he was not required to register as a sex offender in the jurisdiction in which his conviction occurred. This is so because the federal government does not maintain a sex offender registry of the sort that states are required to operate by federal mandate. Although the federal government maintains two sex offender databases, the information contained in them merely represents a collection of registration information acquired from registries maintained by individual state and territorial jurisdictions (see 34 USC § § 20921; 20922). Further, although federal law requires sex offenders convicted of federal sex offenses to register in each jurisdiction where they live, work or go to school (34 § USC 20913[a]), significantly, for purposes of this statutory scheme, the law defines "jurisdiction" as a state or territory and contains no requirement that federally-convicted sex offenders register with the federal government (34 USC § 20911[10]). The result is that Sherlock must still register as a sex offender, but not as a sexually violent offender. That affects his classification level and the requirements attached to that, for example how long the person will be on the register or the publicly available information about the person.
A FOIA request has produced the following Joint Service Committee’s Report on the Adoption of Unanimous Verdicts in the Uniform Code of Military Justicein Accordance with Section 536 of the National Defense Authorization Act for Fiscal Year 2024. November 2024. Your browser does not support viewing this document. Click here to download the document. United States v. EllisLTC Ellis was convicted because of certain acts, to wit: with the intent to humiliate, harass, or degrade the spouse of the accused, sent said a video in which he describes said clothing as, "[Prostitute] dresses," and stating, "I guess my cousin taught you real good how to dress like a [prostitute], right," or words to that effect; and Three, that under the circumstances the accused's acts constituted conduct unbecoming an officer. First the Court notes that the private speech raises a First Amendment issue. The problem then becomes a failure to instruct the members The parties continue to disagree whether appellant's private speech to his wife was lawful, but one point is virtually undeniable - the case presents fundamental considerations of the First Amendment's reach and limits. See United States v. Hartwig, 39 M.J. 125, (C.M.A. 1994). Here, the military judge did not explain why he omitted any instructions regarding the First Amendment interests plainly presented in the case. As best we can tell, he apparently assessed appellant's speech was unprotected and therefore, no specific instructions regarding constitutional implications were required. Conviction set aside a retrial may be conducted.
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