In United States v. Johnson, the sole issue is whether the military judge should have recused himself from presiding over the guilty plea.
Appellant was initially pending action for failing a urinalysis. He thought it might be a good idea to start a fire to destroy the evidence which resulted in charges of arson. While the case was underway another fire arose and a note was left near the scene thought to exculpate the accused. There was a delay in trial to await the results of the investigation. Investigation of the second fire was complete trial restarted. But, a few weeks before trial an exculpatory video showed up on the command's Facebook pages. Another investigation and more delay ensued. There were other delays and continuances in the case because of the pandemic. Well, Appellant ended up with more charges and negotiated a PTA.
Subsequent to entering into a pretrial agreement, Appellant filed a motion for the military judge to recuse himself. Appellant argued there was an appearance of bias because the continuances, and joinder of an additional charge for misconduct during the trial, adversely affected the military judge and his docket. The military judge invited written pleadings, and, in the hearing on the motion, allowed Appellant to voir dire him. Through this questioning, the military judge explained that during sentencing he would consider only the evidence properly admitted, that he harbored no animus towards Appellant, and this would be no different from any other time when he had to compartmentalize information while presiding over courts-martial. The military judge also informed counsel that neither the scheduling complications for the case nor the length of the court-martial caused him any personal problems. Following the military judge’s denial of the recusal motion, Appellant pleaded guilty, and elected trial by military judge alone, after being advised that the same military judge that he requested recuse himself would be his sentencing authority. The parties agreed that Appellant’s guilty plea did not waive the recusal motion on appeal.
NMCCA finds no abuse of discretion with the MJ refusing to recuse himself. It helped that the MJ sentenced Appellant to three years where the PTA allowed up to four. This was an old style PTA where the MJ didn't know the sentence cap. See n. 3.
So, the adage apparently holds that it's not the crime but the cover-up that turns an OTH into three years and a DD.
In United States v. Lizotte, the issues are
(1) the sentence limitation portion of the plea agreement contained impermissible limitations under a plain reading of R.C.M. 705(d) and should not have been accepted.
The issue is not new and n. 3. to the opinion tells us Rivero's status.
82 M.J. 629 (N-M. Ct. Crim. App. 2022) (finding that specific sentence limitations within a plea agreement do not violate the Rules for Courts-Martial or public policy), review granted, __ M.J. __, 2022 CAAF LEXIS 484 (C.A.A.F., July 11, 2022).
Court of Appeals for the Armed Forces
CAAF declines to apply the "common authority" doctrine in favor of the Government in Black.
The military judge granted Appellant’s motion, and the Government filed an interlocutory appeal with the United States Army Court of Criminal Appeals (ACCA) which reversed. Appellant appealed the ACCA’s decision to this Court, and we reverse again. The military judge did not abuse his discretion in holding: (1) PFC Avery lacked common authority to consent to the search of Appellant’s phone; (2) the Government failed to prove that the evidence was subject to the inevitable discovery doctrine; and (3) Appellant’s later voluntary consent to search the phone was not sufficiently attenuated from the unlawful search to cure that error.
Black appealed ACCA's reversal of the trial court’s decision to suppress photographic evidence of child pornography found on appellant’s cell phone. In suppressing the evidence, the trial judge reasoned that PFC A. – who discovered the photos – did not have common authority to consent to a search of PFC Black’s phone. ACCA disagreed.
Black appealed and CAAF granted review to answer the following question:
“Whether the Army Court erred in its abuse of discretion analysis by (1) creating a novel test for common authority, (2) failing to give deference to the military judge’s findings, (3) comparing a modern cell phone to a traditional “container,” and (4) finding error based on a difference of opinion.”
In deciding the issue of common authority, CAAF concluded that the Military Judge did not abuse his discretion in deciding that PFC A. did not have common authority over the phone when he consented to a search. The CAAF reasoned:
Because we are aware of no binding precedent that equates physical access with common authority or that requires express or actual restrictions on use, we disagree that the military judge misapplied the law.
In addition, there are two new grants.
No. 22-0211/AF. U.S. v. Liam C. Lattin. CCA 39859.
I. WHETHER THE LOWER COURT ERRED WHEN IT DID NOT APPLY THE EXCLUSIONARY RULE.
II. WHETHER THE LOWER COURT ERRED WHEN IT FAILED TO ADDRESS A SEARCH AUTHORIZATION'S STATED EXPIRATION DATE.
No. 22-0230/AR. U.S. v. Tristen D. Willey. CCA 20210631.
I. WHETHER TRIAL DEFENSE COUNSEL'S WITHDRAWAL OF A MOTION FOR APPROPRIATE RELIEF ON THE GROUNDS OF MULTIPLICITY AND UNREASONABLE MULTIPLICATION OF CHARGES WAIVED APPELLATE REVIEW OF THE MILITARY JUDGE'S ALLEGED ERROR OF ACCEPTING APPELLANT'S GUILTY PLEAS TO FACIALLY DUPLICATIVE OFFENSES.
II. WHETHER ANY OF THE OFFENSES IN THIS CASE WERE FACIALLY DUPLICATIVE, AND IF SO, WHETHER THE MILITARY JUDGE ERRED IN ACCEPTING APPELLANT'S GUILTY PLEAS TO THOSE OFFENSES.
Jake is a 2L at Villanova Law who is externing with NIMJ.
Forum shopping rejected because USMJ also had jurisdiction over search warrant. NCIS presented a search authorization that a military judge later determined was likely lacking in the showing of probable cause. To remedy that, NCIS did a new affidavit for warrant and presented it to a USMJ also with potential jurisdiction over the offense. This suggested forum shopping, but the USMJ did have jurisdiction, so the exclusionary rule would not be applied. United States v. Kunishige, 2022 CCA LEXIS 494 (N.-M. Ct. Crim. App. Aug. 23, 2022) (unpublished):
While the chain of events may initially give one pause over concerns of forum shopping, we are confident this was not the case here. First, the record establishes that the District Court had jurisdiction over both the offense and the place where the object of the search warrant was located. Second, the supporting affidavit clearly explained why NCIS was seeking authority from the District Court and not a military magistrate. As found by the military judge, NCIS went to great lengths to ensure nothing related to the earlier searches or any evidence collected after 19 January 2017 tainted the new warrant. The decision to seek a warrant from the District Court reflected the agents’ belief in the fact it was unlikely that any military judge at Camp Pendleton would be free of knowledge of the case—particularly regarding the results of the February 2020 search.
Sort of guest post
from John Wesley Hall, Fourth Amendment.com. His site is one of our daily reads.
Appellant's brief in United States v. Anderson.
Anonymous on Nelson
The problem with this opinion [is] it exemplifies an absurd result where a majority of the Court ruled that there was no waiver, and yet, the Court’s judgement is based 66% on a finding that there was waiver. The Court, speaking with the voice of the majority, determined that this was NOT legitimate. So this “judgment” determines that there was no waiver in this case, but the appellant loses because of waiver.
It seems like the appropriate (or a better) resolution of this case would have been for Maggs and Crawford to simply dissent on the waiver issue, but respecting the majority’s decision on the issue of waiver, consider the substantive issue anyways. This opinion involves two judges undermining their own Court’s majority decisions on the issue. It also raises “waiver” to some exalted status above any other issue. For waiver, you don’t need to simply convince a majority of the Court, since if any judge individually decides that there is waiver, they are going to refuse to decide the issue. So it seems all other issues are decided by the majority of the Court, but waiver is decided by individual judges. I understand the legal machinations involved in how the decision came out like it did. But I believe there was a better way to resolve it with a dissent by Maggs and Crawford regarding waiver. The issue could have been resolved one way or another, and they could have avoided issuing such a peculiar “judgement.”
CAAFLOG’s posting is also slightly inaccurate where it says “Trial defense counsel appears to have acquiesced to this remedy.” The majority of the Court disagrees with that assessment. Only Judges Maggs and Crawford believe that was true.
Finally, Judge Maggs’ waiver argument is effectively the tail wagging the dog. The gist of the question on appeal was whether or not, as a matter of law, a scope violation requires suppression of the entire statement. If the answer to that question is, “yes” then necessarily, any objection to the statement on the grounds that there was a scope violation by definition would be a request to suppress the entire statement. Judge Maggs does not contest that the issue of whether there was scope violation for the failure to report was raised, (albeit he claims it was initially raised sua sponte by the judge). His finding of waiver was based on his belief that “Appellant did not move for suppression of the entire statement on the specific ground that the NCIS agents did not warn him that he committed an offense by failing to report others.” But ‘whether or not the rule requires the remedy of total suppression as a matter of law’ is precisely the issue that the Court was supposed to be resolving! If the proper required remedy under the law was that the whole statement needed to be suppressed, then the defense’s objection and request for suppression at all would necessarily be sufficient. Simply put, depending on how the Court decides the underlying issue, an objection could necessarily equal a request for suppression of the whole statement as a matter of law. Therein lies the problem with finding waiver before deciding the issue.
By finding waiver, Maggs essentially answered the granted issue in the negative without doing any substantive analysis. Simply put, if the statute requires total suppression, then the issue was raised at trial the moment the TDC moved/objected after the issue was noticed by the judge. Notably, the rule does not require any specific request for a remedy in order to preserve the issue. And if the statute requires one specific remedy, then the remedy is necessarily included in the objection. Thus, it was improper of Judge Maggs and Crawford to decide waiver without first resolving a predicate legal issue that implicitly underpins their decision. Ultimately, the issue of waiver on the grounds Maggs found could not logically be resolved without resolving the underlying issue. But Maggs does so without any substantive analysis on the issue itself. Thus, there is a logical pillar missing in his argument.
It is important to remember that CAAF’s precedent already acknowledges a circumstance like this – where the issue needs to be resolved prior to deciding if there was waiver. This is true because as CAAF has said, there cannot be waiver if the law is unsettled. The CAAF’s precedent is that if the law is not clearly resolved on an issue, there cannot be a waiver. "[W]hen there is a new rule of law, when the law was previously unsettled, and when the [trial court] reached a decision contrary to a subsequent rule...it is enough that an error be plain at the time of appellate consideration.” United States v. Oliver, 76 M.J. 271, 274 (C.A.A.F. 2017) (quoting Henderson v. United States, 568 U.S. 266) (2013).) Here, all members of the Court seem to acknowledge that this is an unsettled issue. So his finding of waiver also violates CAAF precedent. And it seems his decision strays from the fundamental concept regarding waiver that it is “an intentional relinquishment of a known right.” If CAAF doesn’t even know whether he had the right to have the whole statement suppressed, how was the defense counsel supposed to know? And if he (and the appellant) didn’t know, how then could it be waiver? At a minimum, he and Judge Crawford should have conducted a plain error analysis.
Thus, it’s an unfortunate opinion based on shaky logic that ignores CAAF precedent.
News of the Weird
There have been varying conclusions on the gossip channel about why no court-martial. Regardless, a recently unceremoniously JA has been removed from the promotion year group, an event he apparently didn't appreciate. The U.S.A. for the Western District of Virginia seems to have something to say on it.
An attorney and former Army Officer assigned to the United States Army Judge Advocate General’s Legal Center and School (JAG School) in Charlottesville, was arrested over the weekend in Arkansas and charged with cyberstalking.
U.S.A./DoJ presser here.
In the overnight hours between February 6 and 7, 2022, and while his Army discharge was pending, [he] attempted to delete, without authorization, online JAG training materials. [he] filmed himself doing so and narrated his motivations. In the video, [he] stated, “I’m gonna f*** you,” and “I’m going to bring their house down on them.” The same evening, [he] contacted Victim 1 and informed her that Russia reached out to him, wanted to know what he knew, and that he intended to travel to Russia. [His] cellphone records indicate he contacted the Russian embassy.
Rules of Evidence
Mil. R. Evid. 1102 says that changes to the Fed. R. Evid. become effective "by operation of law 18 months after the effective date of such amendments, unless action to the contrary is taken by the President."
Here are some proposed changes to the Fed. R. Evid. The federal rules making process is slow.
United States v. Gilmet. MJ ruling reversed.
Appellant argues that the 2019 amendment to Article 37, UCMJ, eliminated apparent UCI as a basis for appellate relief. Effective 20 December 2019, the relevant new language in Article 37 states: “No finding or sentence of a court-martial may be held incorrect on the ground of a violation of this section [i.e., UCI] unless the vi olation materially prejudices the substantial rights of the accused.”We need not address whether the issue before this court involves a “finding or sentence of a court-martial,” as we find that, even if apparent UCI is still a viable basis for relief, there was no apparent UCI here.
The issue of actual UCI focuses on how and why Appellee's defense counsel were removed from the case.
The military judge ruled that Appellee’s loss of his IMC and ADC, both of whom had been on the case for over a year, demonstrated that the Government had not disproven any prejudicial effect of the alleged UCI. We disagree.
For those who have tried cases in the Middleeast or Asia, for example with local witnesses, here's something may interest you. Note, the same can happen in court or with counsel's interviews of witnesses.
Picture this. You are in a foreign country. The police arrest you and realise that you don’t speak the language. So, they organise someone to translate. If you’re lucky, the person they contact is a professional interpreter. If you’re unlucky, the person is a multilingual police officer who happens to speak your language just well enough to scrape through an interview. Either way, you are now having to talk through someone else.
Dr. Julia Shaw, Translation errors in police interviews could send innocent people to jail. Science Focus, August 14, 2022.
Disclaimer: Posts are the authors' personal views and do not reflect the position of any organization or government agency.
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