United States v. Brinkman-Coronel.

Recusal

Appellant 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.

​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.

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. Marrero

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.
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The acknowledgment from the Navy, which comes after the ship's command master chief was sent to a special court-martial, suggests the majority of the sailors involved avoided significant punishments, despite concern over the incident. The commander of the Manchester's squadron, Capt. Douglas Meagher, said in the investigation results that he had "never seen such heinous and egregious conduct by [a] command master chief and an entire CPO Mess."
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Meagher ordered more than a dozen chief petty officers and one officer to receive non-judicial punishments for their role in the Wi-Fi network. Cmdr. Cindy Fields, a spokeswoman for the commander of Naval Surface Forces, confirmed to Military.com in a statement Friday that 18 chiefs and senior chiefs and one officer did, in fact, go to Captain's Mast.

​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.
. . .
We review sentence appropriateness de novo. Appellant must show that her case was “closely related” to that of her co-actors and that her sentence was “highly disparate.” If Appellant succeeds, the Government must show that there is a rational basis for the disparity.

​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”).

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

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.”

n.1. The basis for the defense request for a continuance was the Government’s “bombshell” disclosure “on the eve of trial” that E.B. had been prescribed Thorazine for psychotic agitation while also being diagnosed with “PTSD and major depressive disorder without psychotic features.” Trial defense counsel explained that the question of whether E.B. was experiencing psychotic agitation at the time of her accusation against Appellant “goes to the heart of [E.B.’s] credibility, memory, and ability to accurately perceive events.”

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.

The week before the trial began, the hospital produced the required records. While at the hospital, Emily was prescribed Tylenol and four other medications, including Thorazine. It was the Thorazine that was at issue. This medication was prescribed for "psychotic agitation." Appellant had a child psychologist provide expert testimony that Thorazine was a "known antipsychotic medication" used to assist patients who may be "stimulated internally by things that are not actually going on" or who could be "laboring under the burden of delusions." But Emily was diagnosed with "depression without psychotic features"19 and the Thorazine was prescribed "as needed. There was also no evidence Emily ever exhibited psychotic agitation or ever took Thorazine. The military judge denied Appellant's motion for in camera review of Emily's mental health records and denied his motion for a continuance based on the timeline of the disclosure of the records. The day before trial, Appellant moved the military judge to reconsider his denial of the continuance; the military judge denied the motion to reconsider.

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.”

​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.”

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.

DWIGHT H. SULLIVAN

Author: 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.

​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.

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]).
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In People v. Kennedy, we considered whether an individual convicted of a sex crime by a Naval Court Martial was required to register as a sexually violent offender as a result of their conviction in a foreign jurisdiction (7 NY3d 87, 89-90 [2006]). We observed that the foreign registration clause "requires that the conviction result in the offender's obligation to register in the `other jurisdiction' i.e., where defendant was convicted—here the United States Navy" (id. at 91)[2]. Thus we held that, because defendant was not required to register as a sex offender with any Naval authority, he was not required to register in New York under Correction Law § 168-a. Similarly, as defendant here was not required to register as a sex offender with the federal government, he was improperly designated as a sexually violent offender under Correction Law § 168-a(3)(b).

United States v. Ellis

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. 

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.

"When an alleged violation of art. 133 is based on an officer's private speech, the test is whether the officer's speech poses a 'clear and present danger' that the speech will, 'in dishonoring or disgracing the officer personally, seriously compromises the person's standing as an officer." Hartwig, 39 M.J. at 128 (citing Part IV, Para. 59c(2), Manual for Courts-Martial (1984)). The military judge incorrectly withheld the military-specific "clear and present danger" standard from the factfinder. Along with evaluating the unique facts of a case, the factfinder must be aware of the relevant law. While the law requires us to presume a military judge understands it - it is equally clear a panel does not enjoy the same presumption.

Instead, panel members must obtain all operative legal guidance from the judge. Without proper explanation as to the "clear and present danger" legal standard applicable to a case involving an officer's private speech, appellant's panel was unable to consider this critical factor in reaching its guilty finding.