"The Army notified Flynn in a May 2 letter, obtained by The Washington Post, that it would seek to recoup $38,557.06 from him, zeroing in on money and in-kind compensation he received for a gala dinner celebrating the 10th anniversary of RT, the Kremlin-run news agency....
Craig R. Schmauder, an Army lawyer, wrote in the letter that Flynn’s failure “to obtain the approvals of the Secretary of the Army and the Secretary of State resulted in a violation of the Emoluments Clause,” a provision of the U.S. Constitution that prohibits retired military personnel from receiving money from foreign governments without prior authorization. “When there is a finding that a military retiree has violated the Emoluments Clause, the United States Government may pursue a debt collection,” Schmauder wrote to Flynn. Schmauder added that the Army was requesting that the Defense Financing Accounting Service “seek recoupment from you of a debt in the amount of $38,557.06.” The money will be held from his retired pay. More here. In United States v.Flowers, an "enlisted panel" convicted him of three abusive sexual contacts and sentenced him to a BCD. He raises three issues, none of which bring him relief. (1) Appellant’s company commander committed apparent unlawful command influence by stating, “there’s a predator in our midst,” in a meeting called specifically to address recent allegations of sexual assault, and the Government failed to prove beyond a reasonable doubt that the unlawful command influence did not place an intolerable strain upon the public’s perception of the fairness of the military justice system. (2) The MJ abused his discretion in admitting evidence of the charged acts to prove Appellant’s absence of mistake and intent to commit the charged acts under Military Rule of Evidence [Mil. R. Evid.] 404(b). (3) the sentence of a bad-conduct discharge is inappropriately severe. Here, the military judge found that Major Bravo’s comments during the company meeting did not place an intolerable strain on the public perception of the military justice system. We agree. While it is certainly a commander’s prerogative to conduct climate checks and safety surveys in the wake of sexual misconduct allegations, particularly those occurring in the work environment, the use of pejorative terms like “predator” is both ill-advised and strongly discouraged, as it could be viewed as pre-judging an accused whom the law presumes to be innocent until proven guilty. Even where the subject of the allegations is not referred to by name, it is far too probable that the circulation of rumors will make the accused’s name known for commanders to use language that might reasonably be perceived as publicly condemning an accused while he or she is pending investigation or trial for an alleged offense. On the Mil. R. Evid. 404(b) issue, the court found admission for that purpose reasonable when the defense raised the issue of lack of intent and mistake. While we give the military judge’s ruling little deference because he did not articulate his reconsidered Mil. R. Evid. 403 balancing on the record, we find his conclusion under Reynolds’ third prong reasonable. We find the evidence of Appellant’s conduct toward MA3 Madison and MA3 Hotel probative regarding the issues of intent and lack of mistake with respect to his subsequent conduct toward MA3 Mike, particularly in light of the mistake-of-fact instruction pertaining to MA3 Mike that the military judge gave at Defense request. Although the incidents occurred eight months and two years prior, respectively, they involve similar one-on-one conduct by Appellant using his supervisory role to commit repeated, nonconsensual touching of a sexual nature upon isolated, female subordinates despite their protests. As this evidence was already before the members on the charged offenses, it required no additional time to prove at trial, presented no possible distraction to the factfinder, and was the least prejudicial evidence possible under the circumstances. The evidence is also strong, as it is corroborated by Appellant’s admissions that he touched both MA3 Madison and MA3 Hotel on the buttocks because he was attracted to them, and that MA3 Hotel was shocked when he did so. In United States v. Keago, the appellant was convicted by members of attempted sexual two sexual assault, four burglarys, and one obstructing justice. He was sentenced to 25 years, TF, and a dismissal. Counsel raised six errors and four were Grosty. (1) The MJ erred by denying defense counsel’s challenges to three members for actual and implied bias. (2) Appellant’s convictions for sexual assault and burglary involving Midshipman [MIDN] Sonntag, MIDN Morse, and MIDN Metcalf are legally and factually insufficien. (3) Appellant’s sentence is inappropriately severe. (4) The MJ abused his discretion by admitting the testimony under Mil. R. Evid. 404(b). (5) The MJ abused his discretion by denying Appellant’s motion to dismiss based on failure of law enforcement to prevent the loss of potentially useful evidence. (6) Appellant, who is African American, was denied due process when the mostly Caucasian venire resulted in his being tried by a panel comprised of Caucasian and Asian members. The defense had " challenged 14 members of the venire panel for cause. The military judge granted six defense challenges and denied the other eight. Of those eight[.]" Some of the questionable answers include,
As to LCDR Card, the court found, [the almost rape of] LCDR Card’s mother in 1975 was a non-issue in terms of his ability to serve as a panel member. The military judge noted that he observed no emotional reaction in LCDR Card’s recitation of having learned about his mother’s kidnapping. The military judge further found that LCDR Card’s involvement as a Fleet mentor in the SAPR program was more about finding a way to be involved with students than it was related to the specific content of the program, and that LCDR Card had never been involved in the sexual assault prevention aspects of the program. The military judge also found that LCDR Card affirmatively stated that he would not hold Appellant’s silence against him if he chose not to testify, and that LCDR Card’s statement that something must have happened in order for the court-martial to take place was a literal answer and did not indicate he believed something illegal must have happened. In United States v. Monge, the appellant was convicted by an "enlisted" panel of indecent visual recording and distribution of an indecent visual recording and he was sentenced to 60 days HLWC and a DD. Appellant raises several issues, none of which get him relief.
(1) The evidence was legally and factually sufficient to support his convictions for sexual assault and assault consummated by a battery; and (2) Appellant was deprived of his right to a unanimous verdict. United States v. Bunton. Enlisted members convicted Appellant of "sexual assault and abusive sexual contact, conspiracy to commit extortion [a different victim], F2go, and false official statement. Sentenced to two years, TF, RiR, and a DD. But, he will get a retrial on the sexual assault and abusive sexual contact and the sentence. The NMCCA identifies the following issues. (1) MJ error denying civilian defense counsel’s continuance requests. NMCCA finds waiver when the Appellant voluntarily released the CDC. He might of had a decent argument otherwise. There were two COVID related delays totaling three months. The TC objected to a CDC delay because of witness issues and the VLC objected to this first (two month) delay from either party. CDC offered as part of the justification, "two emails between the military judge and the parties. In those emails, the military judge criticized filings by the military defense counsel and suggested that they acted “negligently,” cautioned them that they were officers of the court and not to compromise [their] license to practice law,” and suggested that counsel were “either unaware of [R.C.M.] 707 or planting poison pills in the record.”" (2) the taint of systematic exclusion of junior enlisted Marines as potential panel members was not alleviated when two Corporals junior in date of rank to accused were added to the list of potential members. (3) Ramos v. Louisiana. (4) & (5) MJ (and NMCCA) error in failing to release medical and Physical Evaluation Board records. (6) MJ error denying the testimony of a forensic psychiatrist as a witness. This error gets Appellant a new trial on some charges and sentence. (7) IAC by failing to try and suppress statements to NCIS. NMCCA finds appropriate reasons offered by DC for not raising the motion. They thought the value added of the statements outweighed any devaluation--the statements supported their theme and theory and the appellant would not need to testify. (8) Conviction for false official statement--factual insufficiency? Yup, good enough. * MJ error denying the testimony of a forensic psychiatrist as a witness. The MJ erred because, While we take no issue with a finding that most adults in the United States have a general understanding that alcohol can impair one’s memory, we sharply disagree with the military judge’s additional finding of fact that it could be assumed the members who would sit in judgment of Appellant would, based on either their personal drinking experience or what they had seen in movies, on television, or on social media, have sufficient knowledge in a case such as this, where the complex phenomenon of an alcohol-induced blackout was it issue, to properly evaluate the ultimate issue. Indeed, the military judge’s finding of fact that the members would possess sufficient lay knowledge so as to render expert testimony unnecessary was made in the face of a directly contrary—and unrebutted—assertion by Dr. Sierra[.] The error is not HBRD (Government argued a different standard).
Cheers. |
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
Co-editors:
Phil Cave Brenner Fissell Links
SCOTUS CAAF -Daily Journal -2025 Ops ACCA AFCCA CGCCA NMCCA JRAP JRTP UCMJ Amendments to UCMJ Since 1950 (2024 ed.) Amendments to RCM Since 1984 (2024 ed.) Amendments to MRE Since 1984 (2024 ed.) MCM 2024 MCM 2023 MCM 2019 MCM 2016 MCM 2012 MCM 1995 UMCJ History Global Reform Army Lawyer JAG Reporter Army Crim. L. Deskbook J. App. Prac. & Pro. Archives
February 2025
Categories
All
|