United States v. Craven, __ M.J. ___ )N-M Ct. Crim. App. 2022), is an interesting case about the informant privilege. It's a government appeal, which NMCCA grants, but . . .
There are two informant related Rules of Evidence.
Which one would you choose with the following facts (and don't read after the break yet).
In May 2020, after a night of heavy drinking at then MASN Mike’s apartment, MASN Hotel allegedly touched MA3 Sierra on the buttocks while she was asleep. Appellee and MASN Mike were the only two witnesses to this act, for which MASN Hotel pleaded guilty at special court-martial to assault consummated by a battery. At his court-martial, MASN Hotel and the Government stipulated as fact that Appellee “told [MASN Hotel] that he would take a shot of alcohol if [MASN Hotel] touched the lower back and hips area” of MA3 Sierra.
What Rule applies--Mil. R. 506 or 507?
[W]e find no abuse of discretion in the military judge’s order that confirmation or denial of Mr. Mike’s CI status and any related privileged materials in NCIS possession be submitted for an in camera discoverability review, as such information reasonably tends to affect the credibility of Mr. Mike. Like our sister court, we find that when it “fail[s] to provide the Defense with information about the CI status of [its material witnesses], the Government essentially preclude[s] the defense from impeaching their credibility and motivation for being involved in the situation involving [Appellee] and his court-martial.” Since it is the witness’s affiliation with one party over the other that gives rise to such issues of credibility and bias, we find that the impeachment value of a witness’s CI status is not limited to the witness’s service as a CI in the particular case at hand.
No. 22-0170/AF. U.S. v. William C. McAlhaney. CCA 39979. 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:
DID THE LOWER COURT ERR BY APPLYING PLAIN ERROR REVIEW IN CONSIDERING A QUESTION OF SENTENCE APPROPRIATENESS, TO WIT: WHETHER THE WORDING OF THE REPRIMAND RENDERED APPELLANT'S SENTENCE INAPPROPRIATELY SEVERE?
New Article on Clemency
Nino C. Monea, The Reprieve Power: May the Uniform Code of Military Justice Limit Executive Clemency?, 123 W. VA. L. REV. 547 (2020).
"Article 57 of the Uniform Code of Military Justice states the President "may commute, remit, or suspend the sentence, or any part thereof, as the President sees fit. That part of the sentence providing for death may not be suspended." This seemingly contradicts Article 2 of the United States Constitution, which states that the President "shall have the power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment." This Article looks at whether the power to "reprieve" offenses includes the power to suspend sentences, including military sentences, and concludes that it does. The historical definition of "reprieve," historical practice of presidents, state court interpretations of similar language, and legislative history of Article 57 all indicate that the President may suspend sentences and Congress may not stop him. For practical reasons, challenging Article 57 would be difficult, but a court would likely declare it unconstitutional if a challenge was ever brought."
Reward of the mutiny
The Canadian military justice docket shows the following upcoming trial.
September 12, 2022 at Borden, Ontario
R. v. Kenderesi L. (Officer Cadet) (General Court Martial)
Charge 1: S. 81(b) NDA, endeavoured to persuade another person to join in a mutiny.
Charge 2 (alternate to charge 3): S. 92 NDA, behaved in a scandalous manner unbecoming an officer.
Charge 3 (alternate to charge 2): S. 129 NDA, conduct to the prejudice of good order and discipline.
Those following the case will remember this is a military cadet who refused the COVID vaccine and was allegedly counseling others to do the same.
We are advised that there are only two types of "punishment:" Dismissal from Her Majesty's Service or Dismissal with Disgrace.
United States v. Armandariz, __ M.J. ___ (N-M Ct. Crim. App. 2022).
"Enlisted" members convicted him of various sex offenses, adultery, orders violation, and adultery, and they sentenced him to 18 months and a DD.
"He was charged with an orders violation for misusing his government office for sexual activity [Charge I]; two specifications of sexual assault by bodily harm for digitally penetrating Sgt November’s vagina and for penetrating her vagina with his penis [Charge II, Specifications 1 and 2]; one specification of abusive sexual contact for grabbing Sgt November’s breast [Charge II, Specification 3]; fraternization [Additional Charge I]; and adultery [Additional Charge II]."
(Note, he was sentenced in 2017 so he will have served confinement to his MRD, minus any other good time credits.)
This sexual assault case is before us a second time. In 2019, we found legal error when Appellant’s squadron executive officer [XO] approved a search authorization. The Judge Advocate General of the Navy certified that issue to the Court of Appeals for the Armed Forces [CAAF], where our decision was reversed and the case was remanded. CAAF affirmed one of Appellant’s findings of guilt for violating a general order by fraternizing—a finding we affirmed—because the search produced no evidence pertinent to that specification. We now review Appellant’s findings of guilt of two specifications for violating a lawful general order, one specification of sexual assault by bodily harm, one specification of abusive sexual contact by bodily harm, and one specification of adultery in violation of Articles 92, 120, and 134, Uniform Code of Military Justice [UCMJ].
Appellant raises 11 assignments of error.
1. Factual and legal insufficiency.
2. One of the three presiding military judges had a conflict of interest.
3. MJ abuse of discretion denying a motion to suppress evidence seized from his body, phones, vehicle, and wall locker.
5. MJ abused discretion in granting the Government’s Mil. R. Evid. 412 motion.
6. MJ erred letting the TC argue a “false exculpatory” statement.
7. MJ abused discretion when he declined to give the members an adverse inference instruction for the complaining witness’ refusal to provide her cell phone or for the Government’s decision not to obtain a search authorization for her phone.
8. TC's improper argument by speculating that a member’s question indicated the member already believed Appellant was guilty.
9. MJ abused his discretion in denying Appellant’s M.R.E. 412 motion as untimely.
10. Ramos v. Louisiana.
11. Cumulative errors.
A recurring discussion on #AppellateTwitter and #LegalWriting Twitter is the importance (or lack thereof) of proper citation format. A recent post said that time spent learning to cite properly was not time well spent. I don’t take the author of that post to mean that citations are unimportant, but the view expresses a writer-centric view of citations rather than a reader-centric view. As writers, and particularly as appellate advocates, we must take a reader-centric view of writing. So, let me explain why I think that time spent learning to cite properly is time well spent.
Charles Oldfield, Bluebooking. June 28, 2022, from Appellate Advocacy Blog.
In Heng, the Appellant pled guilty to two domestice violence assaults and abuse of an animal. He was sentenced to "14" months, RiR, and a BCD.
At trial, the defense, accused, trial counsel, and MJ agreed the max per assault was two years. On appeal the argument is that the max is six months. The President had not issued the maximum punishments for the assault offenses so all relied on R.C.M. 1003(c)(3)(B) to find the closely related offense of assault on a spouse. Delving into the choronology of the statutory changes and Congressional intent, the court concludes that the parties at trial were right.
In Vance, an "enlisted" panel convicted hin of attempted sexual assault of a child, attempted sexual abuse of a child, and attempted extramarital sexual conduct, in violation of Article 80, Uniform Code of Military Justice [UCMJ], and for communicating indecent language to and attempting to have sex with a person Appellant believed was 13-years-old. They sentenced him to 15 months, RiR, and a DD. Issues raised.
(1) The military judge abused her discretion by removing two members over defense objection and not granting a defense implied-bias challenge to another member.
(2) The panel was improperly constituted where at least one member was solicited and volunteered. The court finds no United States v. Dowty, 60 M.J. 163, 173 (C.A.A.F. 2004) problem, but gives a caution for the future (in a footnote).
(3) The military judge erred by denying production of the undercover law enforcement agent who had pretended to be the underage girl on the phone.
(4) the military judge erred by not allowing the Defense to argue in closing that the Government had to prove Appellant’s predisposition to commit the offense beyond a reasonable doubt.
(5) The military judge erred by failing to issue a tailored entrapment instruction.
(6) The military judge erred by admitting Appellant’s communications with others to show propensity.
(7) the record of trial is incomplete.
(8) the evidence is legally and factually insufficient to sustain Appellant’s convictions.
(9) Cumulative error.
(10) Unanimous verdict instruction.
Some of which are discussed, but the court finds no prejudicial error and affirms.
In Tribble, the Appellant pled guilty to a 107, aggravated assault, and disorderly conduct, for which he was sentenced to six months and a BCD.
The sole issue on appeal:
Appellant asserts in his sole assignment of error [AOE] that the Government failed to comply with the plea agreement when it reduced Appellant to paygrade E-1, when no statute or regulation authorized automatic reduction in rank and the terms of the plea agreement disallowed the military judge from imposing reduction in rank. We find no prejudicial error and affirm.
The court agrees that an automatic reduction was not authorized, relying on its powers under UCMJ art. 66. They find they only have the power to review the actual sentence announced, and, in limited circumstances, the conditions of post-trial confinement.
However, the case precedent does not support that Article 66 empowers this Court to resolve pay disputes resulting from an apparent administrative error by the Defense Finance and Accounting Service [DFAS]. Nor need we take such remedial action to resolve Appellant’s AOE. Here, insofar as the United States Government acted without authority by paying Appellant at paygrade E-1, it was not due to a violation of the plea agreement. The plea agreement’s term that “[n]o reduction in rank will be adjudged” was complied with when the military judge did not adjudge a sentence that included a reduction in rank and the convening authority took no action to approve one. 13 Since Appellant has not shown that the Government failed to comply with that term of the plea agreement, we find his AOE to be without merit. We therefore conclude it is beyond the purview of this Court of limited jurisdiction to take remedial action to resolve what amounts to an administrative pay dispute.
There are administrative remedies. Also, it could be a Court of Federal Claims case (where the filing fee is $400.00).
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