United States v. Jeter

"We hold that to the extent Crawford allows a convening authority to depart from the factors present in Article 25(d)(2), UCMJ, by seeking, even in good faith, to use race as a criterion for selection in order to make the members panel more representative of the accused’s race, it has been abrogated by Batson, 476 U.S. 79.​"

As a final matter, much of the information concerning the selection process in this case came to light during its lengthy appellate review. True, the trial defense team was presented the opportunity to pursue more evidence to support its claim of purposeful exclusion but chose not to avail themselves of this opportunity. To be fair, however, neither the trial participants nor the lower court could have anticipated our conclusion that Crawford is abrogated, thereby changing the legal landscape. Going forward, it is our hope that trial participants will understand that many of the questions that arose in this case might have been resolved through detailed discovery requests and generous government responses to such requests.

​The precise question at issue is whether Appellant has shown, either by affirmative evidence in the record or through unrebutted evidentiary presumptions, that racial discrimination occurred in this case. For the reasons explained below, I agree with both the NMCCA and the military judge that Appellant has not established that the convening authority acted improperly. I therefore respectfully dissent from the Court’s judgment setting aside the findings and sentence in this case.

United States v. Cabuhut,
__ M.J. ___ (A.F. Ct. Crim. App. 2023) (en banc)

​The MJA convicted Appellant of four specifications of sexual abuse of a child under the age of 16 years on divers occasions; one specification of making an indecent recording on divers occasions; one specification of obstruction of justice; and five specifications of viewing or possessing child pornography on divers occasions.

The MJ sentenced the Appellant to ​a DD, 30 years, RiR to E-1. Appellant raised three issues on appeal: (1) the MJ abused his discretion by accepting Appellant’s guilty plea to sexual abuse of a child by indecent conduct done in the “presence” of that child without defining “presence” to mean the child had to be aware of the indecent conduct; (2) legal and factual insufficiency to one specification; and (3) sentence inappropriateness.

AFCCA ordered oral argument on three additional issues relating to Appellant’s assignments of error and an additional issue, not raised by Appellant, that was identified during this court’s Article 66(d), UCMJ, 10 U.S.C. § 866(d), review of facially unreasonable appellate delay.

AFCCA found Appellant’s convictions both legally and factually sufficient, and no error materially prejudicial to the substantial rights of Appellant occurred. And overruled United States v. Burkhart, 72 M.J. 590 (A.F. Ct. Crim. App. 2013).

Findings and sentence affirmed.

United States v. Shultz

As an allegation of mere wrongful sexual intercourse, the specification lacks an averment (and proof) of “such conditions of publicity or scandal as to enter that area of conduct given over to the police responsibility of the military establishment.” United States v. Snyder, supra at 427, 4 CMR at 19. As an allegation of “adultery,” it lacks utterly the essence of the offense—that at least one of the parties is married to another person. See generally 2 Am.Jur.2d Adultery and Fornication § 24 at 976; United States v. Neville, 7 CMR 180, 190 (ABR), pet. denied, 7 CMR 84 (1952).​

While in the case of a guilty plea where the appellant raises the validity of a specification for the first time on appeal, the Court “view[s] [the] specification[ ] with maximum liberality,” United States v. Bryant, 30 M.J. 72, 73 (C.M.A.1990); see also United States v. Watkins, 21 M.J. 208, 209 (C.M.A. 1986), such construction still does not permit us to “necessarily imply” a separate and distinct element from nothing beyond allegations of the act or failure to act itself.

Error alone does not, however, warrant dismissal. While the rules state that a charge or specification that fails to state an offense should be dismissed, R.C.M. 907(b)(1), a charge that is defective because it fails to allege an element of an offense, if not raised at trial, is tested for plain error. . .  In Fosler — a contested case where the appellant objected — we dismissed the charge. 70 M.J. at 226. In Girouard—a contested case with no objection where the specification of which the appellant was convicted was not an LIO of the charged offense and did not allege all of the elements — we applied plain error review and tested for prejudice. 70 M.J. at 11-12. However, neither of those eases involved a guilty plea, and thus they did not address prejudice or the ramifications of a guilty plea in the unique context of the military justice system.

United States v. Jarlego

We decline and find appellant preserved the error for our review. First, we are generally reluctant to find waiver of constitutional protections. United States v. Sweeney, 70 M.J. 296 (C.A.A.F. 2011). Second, we are unaware of any requirement for opposing counsel to use a certain phrase to preserve an objection. Rather, the essential question is whether the objecting party sufficiently makes the grounds for objection known, so the trial judge can evaluate them. United States v. Killion, 75 M.J. 209, 214 (C.A.A.F. 2016). Opposing the exhibit's admission, the defense said, among other things, it was prepared "with an eye towards litigation." This is a central consideration for deciding whether a document is "testimonial" and qualifies for protection under the confrontation clause. Sweeney, 70 M.J. at 302. We are confident the trial judge recognized -- or at least should have recognized -- that appellant grounded a substantial part of his complaint in the Sixth Amendment. Therefore, we conclude appellant neither waived nor forfeited this constitutional objection.

Here, appellee must withstand scrutiny on two pieces of ex parte information: the birth verification—a purported examination of a custodial record; and, the accompanying affidavit, which attempts to self-authenticate the former as a hearsay exception. Even a cursory review of the birth verification reveals it was created by government request [.] These are precisely the "circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial."

(The [i]nvolvement of government officers in the production of testimony with an eye toward trial presents unique potential for prosecutorial abuse") (citing Crawford, 541 U.S. at 56 n.7).)

Appellee argued before us the birth verification was filed in 2007 near the time of birth, and the document at trial was simply a copy of it. This was plainly incorrect and, not surprisingly, no witness so testified. Fundamentally, the government now asks us to find that a certifying affidavit proved a birth verification admissible under Mil. R. Evid. 803(9), where the underlying record it purportedly verified was inexplicably absent from trial. The Constitution and Mil. R. Evid. 803(9) require otherwise, though, lest a trial devolve into an exercise in multi-layered ex parte document gathering.

​No. 23-0202/AR. Robert M. Lundsten, Petitioner v. United States Army Court of Criminal Appeals, Respondent and United States, Real Party in Interest. CCA 20220226. Upon consideration of the petition for extraordinary relief in the nature of a writ of mandamus, it is noted that Petitioner filed a motion in the United States Army Court of Criminal Appeals (ACCA), seeking permission under Rule for Courts-Martial (R.C.M.) 1113 to examine certain sealed materials in the record. The ACCA granted the motion in part but also denied it in part because the motion did not comply with A.C.C.A. R. 6.9. Petitioner now contends that the ACCA should have granted his motion in its entirety. He asks this Court to issue a writ of mandamus directing the judges of the ACCA to permit him to examine the sealed materials at issue. It is ordered that the petition for extraordinary relief is denied. The denial of the petition is without prejudice to Petitioner's filing a motion in the ACCA that complies with A.C.C.A. R. 6.9 or challenges the validity of A.C.C.A. R. 6.9. The denial of the petition is also without prejudice to Petitioner's right to raise the matters asserted during the course of normal appellate review.
 
No. 23-0228/AR. Rene D. Alfaro, Petitioner v. Judges of the U.S. Army Court of Criminal Appeals, Respondent. CCA 2022-14. Upon consideration of the petition for extraordinary relief in the nature of a writ of mandamus and writ of prohibition, . . . 

United States v. Strong

The Agent, accompanied by a Noncommissioned Officer ("NCO") from appellant's unit, located appellant in her sleeping area, at whichtime the Agent identified herself to appellant as a CID agent. She further told appellant she had a warrant to seize appellant's cellular phone and smart watch. The Agent briefly left appellant alone with the NCO while appellant was getting dressed, instructing the NCO not to let appellant use her phone or watch. After the Agent heard the NCO say "you're not allowed to be on the phone" several times, she entered the room and saw appellant attempting to use her phone. Indeed, even after the Agent seized the phone, appellant tried multiple times to physically snatch the phone back out of the Agent's hands. Specifically, the Agent testified that appellant was "belligerent" in
trying to take back her phone, such that the Agent finally had to tell her "at ease, Sergeant." The Agent also described how that was the only time in her career that she had to give such an admonishment to the subiect o f a seizure warrant.

The statute criminalizes actions taken by an accused to prevent the seizure of property by authorized personnel. "Prevent" means to keep something from happening or existing. Therefore, by definition, any action to "prevent" a seizure of property must occur before the seizure of the property. As such, the statutory phrase, "are seizing, are about to seize, or are endeavoring to seize" contemplates the destruction, removal, or disposal of the targeted property either before the seizure or while the seizure is ongoing. As appellant observes, it is not designed to cover conduct occurring after the property is seized. See United States v. Hamilton, 82 M.J. 530, 531 (Army Ct. Crim. App. 2022).

​Neither the text ofArticle 131e, UCMJ, nor the explanation in Part IV of the MCM, define when a seizure is complete for purposes ofthe statute. However, in a different factual context, the Court of Appeals for the Armed Forces (CAAF) held that property is seized when there is "meaningful interference with an individual's possessory interest in that property." United States v. Hahn, 4 M.J. 360, 362 (C.A.A.F. 1996) (citing United States v. Jacobsen, 466 U.S. 109, 113 (1984)). 

we find that the routine efforts of law enforcement to protect digital media on a seized physical device are part and parcel o f the seizure of digital media. Under this analysis, a seizure is ongoing while those authorized to seize the property execute the protocols necessary to isolate and preserve the digital media. For purposes of Art. 131e, UCMJ, we further find that digital media is "seized," and beyond the reach o f the statute, when the device containing it is secure from passive or active manipulation, even i f that does not occur until the targeted data is copied or otherwise transferred from the seized device at some other location.

​This framework is necessary to address both evolving technology and the ethereal nature ofdigital evidence. Moreover, it is consistent with the holding in United States v. Hahn, 4 M.J. 360 (C.A.A.F. 1996), because the only "possessory interest" of any relevance to Article 131e, UCMJ, is the capacity to destroy, remove, or otherwise dispose of the putative evidence.