United States v. Saul

United States v. Moore
__ M.J. ___ (N-M. Ct. Crim. App. 2024)

As the Scottish poet Robert Burns observed, the best-laid plans of mice and men often go awry. And Appellant’s plea, which was best-laid, quickly unraveled as the Government opened its sentencing case.

But Appellant now levels a broadside at the bargain he struck below asserting six assignments of error: (1) whether Appellant’s conviction for assault consummated by a battery was improvident; (2) whether the military judge abused his discretion when he accepted Appellant’s guilty plea for extramarital sexual conduct; (3) whether the military judge abused his discretion by allowing the Government to introduce aggravation evidence beyond the scope of the charge for which Appellant pleaded guilty; (4) whether the military judge abused his discretion by allowing a victim impact statement that went beyond the scope of the charge for which Appellant pleaded guilty; (5) whether Appellant’s defense counsel ineffectively represented him during his court-martial; and (6) whether the sentence adjudged is inappropriately severe.

In an apparent effort to obtain a sentence on the higher end of the bargained-for three-to-six-month sentencing range for confinement, the Government introduced a number of reports of interviews taken by agents from the Naval Criminal Investigative Service (NCIS) during its investigation of CPT Mike’s allegation that Appellant sexually assaulted her. While these interviews do contain matters in aggravation, they also squarely raise the mistake of fact defense to the alleged assault and present a substantial basis in both law and fact to question Appellant’s plea to that Charge.
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An affirmative defense to a charged offense would, by definition, constitute matter inconsistent with a plea of guilty and a military judge must resolve the apparent inconsistency or reject the plea. That said, not every mitigating statement or word requires further inquiry, and a military judge is not required to reopen a plea and inquire further where an accused raises the “mere possibility of a defense.” But if a party sets up matter raising a possible defense, then the military judge is required to make further inquiry and resolve any apparent ambiguity or inconsistency.

Rule for Courts-Martial 916(j)(2) places no limitation on the source or the kind of evidence that may establish a mistake of fact defense. And the evidence supporting that defense “can come from evidence presented by the defense, the prosecution, or the court-martial.”

For now, Appellant has evinced his intent to withdraw from the plea agreement by challenging the providence of his pleas to all the charges and specifications and by alleging that his trial defense counsel were ineffective in negotiating the plea agreement in this case, which he alleges no reasonable attorney would have done. We hold that the conditions allowing the parties to withdraw from the plea agreement have been met. And under the facts of this case, we set aside the findings and sentence so the Government and Appellant may fully avail themselves of the remedies available to them below, which may include, but are not limited to, permitting Appellant to plead anew or proceed to trial.

United States v. Cole

[AFCCA] uph[eld the Appellant's] sentence for offenses that he pled guilty to, which included simple assault with an unloaded firearm. Despite finding that the military judge erred during the providence inquiry by “indicating that Appellant was charged with the offense of assault consummated by a battery and in advising and conducting a colloquy on matters that were not part of the charged offense,” [T]he AFCCA concluded that “such errors did not substantially influence Appellant’s adjudged sentence,[and affirmed the sentence]. We disagree and reverse the decision of the AFCCA as to the sentence.

[W]​e hold that the military judge improperly identified [the] Specification as assault consummated by battery, and his erroneous view of the elements of the offense alleged makes it unclear whether he sentenced Appellant for aggravated assault with a dangerous weapon or simple assault with an unloaded firearm, thereby materially prejudicing Appellant’s substantial right to be sentenced for the correct offense based on a consideration of the nature, circumstances, and seriousness of the offense.

We reject as clearly erroneous the AFCCA’s finding that “[t]he record does not indicate that the military judge considered extra aggravating factors during sentencing.” According to the AFCCA, the military judge knew that the weapon used by Appellant was not a dangerous weapon because it was unloaded, and thus the military judge knew that it could not inflict death or grievous bodily harm. Even though the military judge understood that the firearm was unloaded, his questions to Appellant indicate that he still believed it was a dangerous weapon. Additionally, the military judge improperly advised Appellant that he “must have intended to do the bodily harm.” (Emphasis added.) Then the military judge elicited Appellant’s agreement that his actions met this higher intent standard than what is required for the offer-type simple assault charged. In requiring Appellant to testify that he used a dangerous weapon and intended to do bodily harm, the military judge amplified both the means and the intent beyond what was required for the offense alleged in Specification.

Here, there is clear evidence from the military judge’s errors regarding Specification 2 of Charge II that he did not know the applicable law, and thus any presumption that he knew and followed the law is lost.

​On appeal, Appellant raises two assignments of error, claiming: (1) Appellant’s trial defense counsel were ineffective “for at least six reasons,” specifically when they: (i) failed to request a sanity board under Rule for Courts-Martial (R.C.M.) 706, (ii) failed to adequately investigate Appellant’s traumatic brain injury (TBI) for mitigation, (iii) failed to adequately investigate the impact of Appellant’s alcoholism on the charged offenses, (iv) failed to object to improper evidence and argument presented by trial counsel during presentencing, (v) presented a short sentencing argument that did not effectively lay out a case for leniency at sentencing, and (vi) advised Appellant to waive clemency on an incorrect legal basis; and (2) the military judge’s failure to conduct further inquiry into Appellant’s TBI made his pleas of guilty improvident.