United States v. Burnett. Officer members convicted Appellant of one sexual assault, for which they sentenced him to two months, TF, RiR, and a DD. Appellant raises 14 issues for our consideration on appeal: (1) whether the evidence is legally and factually sufficient to support his conviction; (2) whether the military judge erred by failing to give a proper instruction on the affirmative defense of involuntary intoxication; (3) whether trial defense counsel were ineffective by failing to research or request a proper instruction on involuntary intoxication; (4) whether the military judge erred by failing to give a proper limiting instruction upon the admission of human lie detector evidence; (5) whether trial defense counsel were ineffective by failing to appreciate the prejudicial effect of human lie detector evidence and failing to request a limiting instruction; (6) whether the military judge erred by failing to give a timely and proper limiting instruction regarding evidence of Appellant’s prior waiver of an administrative discharge board; (7) whether trial defense counsel were ineffective by failing to appreciate the prejudicial effect of evidence of Appellant’s discharge board waiver and failing to request a limiting instruction; (8) whether the military judge abused his discretion by admitting testimonial hearsay; (9) whether a witness immunity letter issued by the convening authority amounted to unlawful command influence; (10) whether trial counsel engaged in prosecutorial misconduct during argument on findings; (11) whether trial defense counsel were ineffective by failing to object to trial counsel’s argument; (12) whether Appellant was wrongfully denied credit against his sentence for nonjudicial punishment he previously received for the same offense for which he was convicted; (13) whether Appellant is entitled to relief for cumulative error; and (14) whether the military judge abused his discretion by limiting the time allotted for closing argument.
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Opinion in Dial. However, we are ultimately more persuaded by the second basis which contends Congress determined that unanimous verdicts would unduly impede the efficiency of military operations. That is to say, deliberations towards unanimous verdicts are likely to take longer to achieve, thereby keeping participants from their military duties for reater periods of time. See Revision of the Articles of War, United States Senate, Subcommittee on Military Affairs, Statement of Brig. Gen. Enoch H. Crowder, United States Army, Judge Advocate General of the Army (1916), p. 27 [1916 Hearing]. Most importantly, when a unanimous verdict cannot be reached and a hung jury results, the command is faced with the prospect of either engineering a retrial or returning a service member with unresolved charges to its ranks. A verified commenter says, The fear of a hung jury, as an impediment to military efficiency, is wrong. The issue is a unanimous verdict to convict, not a unanimous verdict to acquit. The court footnotes the issue and says they are unaware of any other court in the country where a single vote for acquittal results in an acquittal. Perhaps, but there is no other court that convicts on a non-unanimous vote. The equal protection analysis is a different ballgame for the accused who are convicted under Art. 134, Clause 3 offenses. That is not the issue here but it's the issue in other pending cases. The military efficiency rationale won't hold up in these cases. Cheers, Phil Cave.United States v. Deontre White. An MJ convicted the appellant of two abusive sexual contacts and two communications of indecent langauge, for which he was sentenced to four months, RiR, a BCD, and a reprimand. One of his issues asked whether the indecent language conviction was factually and legally sufficient. No, says a majority of the panel. In reading the facts I was reminded of a few lines from "Pink Floyd, The Wall." Teacher: What have we here, laddie? Mysterious scribblings? A secret code? No! Poems, no less! Poems, everybody! The language and context are quite suggestive. Appellant then asked SSgt CR if she liked poetry and if she would like to hear a poem he had written. SSgt CR said, “sure,” and Appellant began reading. As Appellant read the poem, SSgt CR perceived that it “was very sexually explicit,” so she stopped Appellant and told him, “I’m sorry. I did not realize the contents of this poem.” SSgt CR testified that she thought the poem was about “a sexual encounter that he had with a woman,” but she did not have any impression regarding whether the encounter was portrayed as consensual or not. At Appellant’s court-martial, SSgt CR only recalled two brief excerpts from the poem. The first was, “just stick the tip in,” and the second was, “[m]y hands down her pants touching her c*******.” It would appear the Appellant liked to read his poems at work. TSgt SD did not recall if Appellant asked her to listen to the poem or if her husband, SSgt SD, who worked in the same area, told her to come listen to Appellant read it. TSgt SD testified that she and SSgt SD were there for the reading, as well as her supervisor TSgt M and her co-worker SSgt EG. Before he began reading, Appellant told the group that the poem “could be read from either a female’s perspective or a male’s perspective.” Once Appellant said the word “c*******,” TSgt SD walked away because she felt uncomfortable and “didn’t want to be around that.” TSgt SD did not say how long she listened to the poem, but she described the portion she heard as “quick.” The issue was whether the words and reading was contrary to GoD, for example, When SSgt EG was asked how the reading affected good order and discipline in the unit, she answered, “It’s hard to say.” She explained that while inappropriate, the reading “didn’t bother [her],” but “[i]f you’re making people that you work with uncomfortable and maybe someone doesn’t have tough skin, that could break[ ]down like trust and stuff like that and being able to work and get the mission done.” The court describes the third element of the offense, that it “refers only to acts directly prejudicial to good order and discipline and not to acts which are prejudicial only in a remote or indirect sense.” 2016 MCM, pt. IV, ¶ 60.c.(2)(a). As explained in the Manual for Courts-Martial, “Almost any irregular or improper act on the part of a member of the military service could be regarded as prejudicial in some indirect or remote sense; however, this article does not include these distant effects. It is confined to cases in which the prejudice is reasonably direct and palpable.” Id. The requirement to prove this third element “filters out from punishment language that is colloquial vocabulary and may be routinely used by service members.” United States v. Negron, 60 M.J. 136, 144 (C.A.A.F. 2004). The court went on to say We conclude the findings of guilty for the two indecent-language specifications are neither legally nor factually sufficient. We first note the dearth of evidence in the record establishing what Appellant actually said when he read his poem. C.J. Johnson dissents in part and in the result. I acknowledge the Government was not able to introduce the exact text of the sexually explicit poem Appellant read to several noncommissioned officers (NCOs) in their workplaces in August 2018, and that the four witnesses who testified about Appellant’s indecent language had imperfect memories of the incidents. However, I find the witnesses’ testimony to be generally credible and, importantly, not significantly inconsistent. Taken together, the testimony of Staff Sergeant (SSgt) CR, Technical Sergeant (TSgt) SD, SSgt EG, and SSgt SD demonstrates Appellant’s poem described the perspective of someone pursuing unwanted sexual activity with an unwilling female, including references to touching her b****** and genitalia, and including specific phrases to the effect of “rubbing her c***” and “just stick the tip in.” C.J. Johnson's final words are, The majority asserts they are not willing to “broadly paint any discussion of sexual conduct among adults as indecent language under a theory that someone, somewhere might be aroused by it.” Neither am I. However, the definition of indecency does not require the language to be actually or potentially sexually arousing. I also agree that many things that are inappropriate to say in the workplace are not “indecent.” However, language that is grossly offensive to propriety because of its vulgar nature and violates the standards of the military community is, by definition, indecent. Cheers, Phil CaveIn Brown, the Appellant was convicted, MJA, of disrespect to a petty officer and "convicted" of violating the order against sexual harassment. He was sentenced to restriction for 30 days, RiR to E4, and a reprimand. It appears that the MJ when entering findings "excepted language from the sexual harassment specification that was necessary for guilt, effectively acquitting Appellant of the specification." Appellant asserts the evidence is legally insufficient to support his convictions for disrespect in two ways: (1) Article 91, UCMJ, does not cover disrespect by remote means of communication, such as a text message; and (2) because the Government specifically alleged he was disrespectful in deportment, as opposed to in language, it was required, but failed, to prove that the acts were done “in the presence” of the victims. We disagree and hold that Article 91 is broad enough to encompass disrespectful text messages sent directly to the victim, whether they are disrespectful in language or in deportment. On a second question, the court finds that sending a disresptful text to a petty officer is sufficiently criminal. In doing so they go wayback (without machine) to 1917 to explain what it means for language to be "toward." Similarly, going all the way back to 1917—when the MCM was issued under the authority of the Secretary of War, not the President—it explained: On the acquital, Prior to trial, Appellant challenged the sufficiency of the specification on the basis that it was impossible that Appellant created a hostile work environment at PO3 C.L.’s “A” school because he had no connection to it. During argument on the motion to dismiss the specification, the military judge asked trial defense counsel whether there would be any issue if he simply struck that language. Trial defense counsel responded that would leave an insufficient specification because the language is necessary to allege a violation of the sexual harassment order. The Government did not dispute that an effect on the working environment needed to be alleged and proved. Rather, it argued that the entire Coast Guard was the working environment and that it was therefore possible for Appellant to affect it. The court opines that the military judges denial of the motion was correct because the Order required as an element that ". Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment." But, Following the close of evidence, the military judge reversed course. He found Appellant guilty of the specification except the words, “while she was attending ‘A’ school which created an offensive work environment.” He issued special findings where he now stated that “ACN 085/18 defines sexual harassment as ‘other verbal or physical conduct of a sexual nature . . .’ and ‘encompasses unwelcome display or communication of sexually offensive materials.’” App. Ex. XXVIII at 9 (ellipsis in original). He found that Appellant “was on notice that, as part of the specification, he had sexually harassed the named victim by communicating sexually offensive materials” and that while the Government had proved beyond a reasonable doubt that Appellant sent an unwelcome video, it had not proven that it created an offensive working environment. Id. In short, upon reconsideration, the military judge interpreted ACN 085/18 as not requiring the Government to prove that Appellant’s conduct created an offensive working environment. The court concluded that this course reversal wrong. We conclude that an impact on the workplace, as alleged in the specification, was required to prove a violation of ACN 085/18. By finding Appellant not guilty of that portion of the specification alleging the required workplace impact, the military judge effectively acquitted Appellant of the specification. On sentence reassessment the court finds the 30 days restriction, RiR to E6, and the reprimanc to be appropriate. They also ordered the reprimand be rewritten to be consistent with the affirmed findings. Cheers, Phil Cave.In Dixon, the Appellant was convicted MJA of one housebreaking and one communicating a threat, and he was sentenced to one year, and a BCD, and a reprimand. Note 4 tell us that the Appellant was also was charged with two sexual assaults which were dismissed w/o prejudice prior to arraignment. He was acquitted of an indecent exposure. 1. At first the Appellant pled G to housebreaking and NG to communicating a threat. The MJ was unhappy with the providency of the housebreaking, so everyone took a break. 2. Appellant entered a plea of G to an LIO of unlawful entry. The court notes the MJ never entered a finding on this offense. 3. The Government elected to prosecute both the housebreaking and communicating a threat. The MJ found Appellant guilty of both. Appellant raises five issues on appeal: (1) whether Appellant’s guilty plea is improvident because unlawful entry is not a lesser-included offense (LIO) of housebreaking; (2) whether the evidence is legally and factually sufficient to support Appellant’s conviction for communicating a threat; (3) whether the evidence is legally and factually sufficient to support Appellant’s conviction for housebreaking; (4) whether the recklessness mens rea for communicating a threat under Manual for Courts-Martial, United States (2016 ed.) (2016 MCM) 5 violates the First Amendment of the United States Constitution; 6 and (5) whether Appellant is entitled to sentence relief because he received nonjudicial punishment under Article 15, UCMJ, 10 U.S.C. § 815, for the same offense for which he was sentenced at trial.7 Because we resolve the first three issues in Appellant's favor and set aside the findings and sentence, we do not reach the remaining issues. Communicating a threat required proof BRD of, (1) Appellant communicated certain language to AG expressing a present determination or an intent to wrongfully injure her reputation, presently or in the future, by alerting MTLs to her violation of AETC dormitory rules. (2) the communication was made known to AG or to a third person. (3) the communication was wrongful. (4) under the circumstances, Appellant’s conduct was prejudicial to good order and discipline. A defense is that the "circumstances reveal that the communication was made “in jest or for an innocent or legitimate purpose” so the communication is not wrongful. See Rapert, 75 M.J. at 169." AFCCA observes that, "In United States v. Whitfield, ARMY 20130212, 2015 CCA LEXIS 184 (A. Ct. Crim. App. 14 Apr. 2015) (unpub. op.) (per curiam), rev. denied, 75 M.J. 32 (C.A.A.F. 2015), the appellant threatened to reveal another soldier’s misconduct to her chain of command. The ACCA found "that “appellant’s threat to truthfully reveal [the victim’s] misconduct to the chain of command falls short of the requirement that appellant’s communication be ‘wrongful."" But see, United States v. White, 62 M.J. 639 (N.M. Ct. Crim. App. 2006), rev. denied, 64 M.J. 225 (C.A.A.F. 2006), which AFCCA distinguishes. Accordingly, AFCCA sets aside the communicating a threat conviction. On to housebreaking. The AFCCA sets aside the housebreaking conviction and holds that unlawful entry is not an LIO of housebreaking because unlawful entry requires the GoD element not found in housebreaking. And, citing Coleman that “[T]he terminal element of an Article 134, UCMJ, offense is not inherently included within other elements and is instead a separate and distinct element that the [G]overnment must prove.” United States v. Coleman, 79 M.J. 100, 104 (C.A.A.F. 2019). Appellant was not charged separately with unlawful entry. Relying on United States v. Nealy, 71 M.J. 73 (C.A.A.F. 2012) and United States v. Girouard, 70 M.J. x, 10 (C.A.A.F. x), the AFCCA finds an accused can't be convicted because " due process “does not permit convicting an accused of an offense with which he has not been charged” and ‘“the Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged’” (citation omitted) (quoting Patterson v. New York, 432 U.S. 197, 210 (1977))." Accordingly, the AFCCA sets aside the unlawful entry plea because a court-martial has no jurisdiction to enter findings for an offense not charged. Judge Key concurs in part and in the result. Judge Key notes that the proper charge was extortion. Keep in mind that even though the AFCCA dismissed the charges with prejudice, the question then becomes, has the Appellant been in jeopardy on the extortion, or for that matter the unlawful entry? Thoughts? Also, Judge Key concludes, in my words, that on the facts of this case the discussion about unlawful entry being an LIO is an advisory opinion and he "do[es] not subscribe to the majority's analysis on this point." Cheers, Phil Cave.Adam Lamparello, writing for Appellate Advocacy blog gives some reminders on to increase the persuasive value of your arguments. 1. Keep it simple, talk like a normal human being, and get out of the weeds. 2. Address the court’s questions and concerns. 3. Acknowledge weaknesses in your argument.
4. Be passionate and emotional (when appropriate). It’s important, as an advocate, to show that you care. For example, Camille Vasquez’s cross-examination of Amber Heard demonstrated that Vasquez believed strongly that Heard was lying and that Depp had been defamed. In essence, believing in your argument increases the persuasive value of what you say. 5. Be likable and relatable. Gere v. CO, NAVCONBRIG Charleston. Gere is currently confined in the Navy Consolidated Brig in Charleston, South Carolina, brings this application for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Respondent moved for summary judgment. Petitioner presents two grounds for relief: (1) he was deprived of due process of law when the military judge denied defense counsel's request to compel production of SN's cell phone and (2) defense counsel was ineffective for not asserting prosecutorial misconduct based on the prosecution's failure to secure SN's cell phone. Respondent asserts the discovery issues were extensively litigated throughout Petitioner's military proceedings and thus are not properly reviewable here. Respondent also contends Petitioner did not argue his defense counsel was ineffective before the military courts and thus defaulted that claim. The magistrate judge hearing the case recommend granting the dismissal motion. In 2016, Petitioner's girlfriend's teenage daughter, SN, accused Petitioner of sexually assaulting her. In January 2019, Petitioner was found guilty by a military judge, sitting as a general court-martial, of attempted sexual assault of a child, sexual abuse of a child, and sexual assault of a child. Petitioner has exhausted his military appeals and now presents habeas claims concerning a discovery dispute over messages allegedly contained on SN's cell phone and ineffective assistance of counsel. In 2020, AFCCA affirmed Gere's findings and sentence. CAAF denied review 81 M.J. 168 (C.A.A.F. 2021). The denial of review forclosed Gere from a direct appeal to the U.S. Supreme Court. A direct appeal available to every person, civilian or military and detainee at Gitmo, convicted in their courts. At AFCCA Gere had raised the following issues.
(1) Whether the military judge erred by denying a defense motion to compel production of a cellular phone belonging to the victim, SN. (2) Legal and factual sufficiency. (3) whether the military judge erred by admitting expert testimony at sentencing regarding the long-term effects of child sexual abuse in general. (4) Post trial error. (5) Post trial error. The discovery issues arise from a common problem in many cases involving smartphones and various applications such as Snapchat. Remember, MCIOs almost never ask a victim for permission to do a DFE on their smartphone. And of course prosecutors never use their power to obtain a search warrant. Often times they will rely on the victim's word or cherry-picked screenshots. This failure of course can impact the defense months later when charges are referred--in Gere, about 36 months later. In Salinas, a writ on behalf of a complaining witness, the court denies the writ. On 25 May 2022, pursuant to Article 6b(e), UCMJ, Petitioner filed a Petition for Extraordinary Relief in the Nature of a Writ of Mandamus to Quash Order to Produce Victim for Testimony at Mil. R. Evid. 412 Hearing and Application For a Stay of Proceedings. Petitioner seeks a Writ of Mandamus vacating the trial court’s ruling that Petitioner’s testimony is necessary and relevant to the Article 39(a) session scheduled for 1 June 2022, vacating the trial court’s order for Petitioner’s production and testimony at the Article 39(a) session, and denying the Accused’s motion for a hearing under Mil. R. Evid. 412. The court finds that testimony in a motion is not equivalent to a deposition.
The MJ and VLC are trusted to follow the law. There is no clear and indisputable right to the writ. Could the court have also said that nothing in Article 6b gives an alleged victim the right to testify or not to testify, they are after all a witness. The only right to participate or not is UCMJ art. 6b(a)(4)(B), 10 U.S.C. § 806b(a)(4)(B) which provides a right to be reasonably heard--during presentencing. An "enlisted" panel convicted Martinez of sexual assault and an attempted sexual assault. He was sentenced to six years, TF, RiR, and a DD. Of 11 issues, the motion for the MJ's recusal is the most interesting. Appellant argues the military judge was biased against the lead trial defense counsel, and the military judge should have therefore recused himself from Appellant’s court-martial. Appellant argues as a second basis for relief that the military judge should have recused himself based upon the appearance of bias on the military judge’s part. As a remedy, Appellant asks us to set aside the findings and sentence. In support of his argument, Appellant cites to a number of events occurring both before and during his court-martial; we only address the most significant events raised. It appears that in the motion for a mistrial, after findings, The Defense advanced two grounds: (1) inadequate notice with respect to the specification alleging an attempted sexual assault on Ms. ES (and relatedly, a perceived incongruity between a conviction for that offense and an acquittal for abusive sexual contact arising out of the same conduct), discussed in greater detail in Section II.D., infra; and (2) disparate treatment of the parties by the military judge. With respect to the second ground, trial defense counsel asserted there were “countless examples” of such disparate treatment, but they specifically referred to three instances they believed supported their argument: (1) discovery related to opening and closing slides; (2) objections to the Defense’s opening statement regarding the military judge’s Mil. R. Evid. 412 ruling; and (3) selective enforcement of the military judge’s scheduling order. At one point, the court opines, While many aspects of the interaction between the military judge and trial defense counsel may be subject to valid criticism, we conclude the record does not support a conclusion the military judge abused his discretion in not recusing himself. There are numerous events during the trial worth considering for the future. But, The military judge was also quick to lecture the Defense about following his rulings, asking rhetorically at one point, “Do people not care what my rulings are if they’re going to sort of go around them?” This question, of course, came in the middle of a longer critique of the Defense which had been initially spurred by the military judge’s erroneous recollection of his own written Mil. R. Evid. 412 ruling. Rather than admit his error, the military judge suggested the ruling was just “inartfully drafted,” sua sponte reconsidered the ruling “to provide a little bit more clarity,” and sustained two of the Government’s objections to the Defense’s opening statement—even though that opening statement fell within the bounds of the military judge’s original ruling. But, Government counsel, on the other hand, largely escaped unscathed. For example, when trial counsel suggested trial defense counsel had engaged in “bad lawyering”—a comment flowing from trial counsel’s incorrect recollection of the military judge’s written Mil. R. Evid. 412 ruling—the military judge charitably referred to the comment as “a momentary lapse of hyperbole, an emotion based on a contentious issue.” When trial counsel defied the military judge’s ruling prohibiting evidence of Ms. ES’s prior allegations of sexual assault, the military judge not only allowed Ms. ES’s arguably false answer to stand, but he simply told trial counsel to “tread lightly” and “be more careful than ever.” There also did not appear to be a reaction to a comment in a Government motion along the lines of, "General gripes about the Government’s charging in this case may be therapeutic to express in a motion, but they do not give rise to the requested remedy."
Ultimately the Appellant got some relief with one charge set-aside without prejudice (based on an instructional error) and the sentence was set-aside. |
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