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CAAFlog

United States v. Ortiz

9/26/2023

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Oooops, we meant State v. Ortiz.

The Herald/Review has this tidbit today.

Terri Jo Neff, Former Army Staff Sergeant pleads guilty to state charges related to 2022 court martial (sic) 
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Court of Appeals for the Armed Forces

9/26/2023

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United States v. Jeter

Jeter gets a new trial, and 59 years after Crawford was decided and 36 years after Batson was decided, Crawford is overruled. CAAF rejects the notion in Crawford that the inclusion of a prospective member because of their race or gender is OK because it favors the accused. The opinion is straightforward. Although Judge Maggs dissented.
"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.​"
The teaching moment, however, comes at the end of the majority opinion.

Over the years, the defense has sought discovery of the member selection process. Depending on the jurisdiction or trial counsel, that discovery has been denied or resisted, sometimes with the judicial imprimatur. It seems odd that the members' selection process should be cloaked from public view, let alone from the defense. 
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.
Judge Maggs points out that in his view the court has answered the wrong question. The real question was not about the selection process but about whether, on the evidence available, the defense met its burden.
​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.
Judge Maggs then holds the second teaching moment for what should happen or be shown once the discovery is received.
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Air Force Court of Criminal Appeals

9/25/2023

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

As an introduction to a guest post, here is a statement of the case.
​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.

Read More
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Coast Guard Court of Criminal Appeals

9/22/2023

2 Comments

 

United States v. Shultz

The CGCCA in Shultz tells us,

1. When charging ‘engaging in extramarital conduct,’ it is necessary to plead that at least one of the participants was married to someone else at the time of the offense. If not, then the specification is defective. The court cites United States v. King. Presumably this language,

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).​

2. Because the deficiency was not litigated, the providence inquiry was sufficiently detailed to show no prejudice to a substantial right--thus the conviction may be affirmed. The court cited United States v. Ballan, 71 M.J. 28, 35 (C.A.A.F. 2012). From Ballan.

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.
2 Comments

Military Drug Testing is --Purrfect

9/19/2023

3 Comments

 
Let's see

Colleague and friend Patrick Korody has this list. He missed several.
  • 1995: Navy Drug Screening Laboratory Norfolk (now closed) – two employees were fired for tampering with samples to mask problems with quality control.
  • September 2004: Navy Drug Screening Laboratory Jacksonville – false positive for THC.  Negative blind quality control tests positive for THC.
  • September 2008: Navy Drug Screening Laboratory Great Lakes – false positive for d-Amphetamine/d-Methamphetamine.
  • July 2008: Tripler Forensic Toxicology Drug Testing Laboratory – heroin blind quality control replaced with random sample during testing procedure.
  • April 2012: Fort Meade Forensic Toxicology Drug Testing Laboratory – blind quality control not tested; technician lies to conceal mistake; falsification of time cards. There were earlier reports of various problems at this facility in the early 2000s which were used in Army drug cases for a while.
  • April 2012 – Navy Drug Screening Laboratory San Diego (now closed) – reports a false positive for d-Amphetamine/d-Methamphetamine.
  • June 2016 – Tripler Forensic Toxicology Drug Testing Laboratory – for approximately 18 months, the lab hired and employed a husband and wife as the QA officer and technical director.  Wife certified the husband as a negative laboratory certifying officer outside the standard process.
  • April 2017: Navy Drug Screening Laboratory Great Lakes – admits it has been reporting false positives for methamphetamine since February 2006.

The Brooks Air Force Testing Lab. Ultimately prosecutors and the appellate courts got tired of hearing about this problem and decided that after several months it was no longer relevant. See United States v. Jackson, 2003 CCA LEXIS 27 (AFCCA); United States v. Gonzalez, 2003 CCA LEXIS 57 (AFCCA); United States v. Mann, 59 M.J. 27 (AFCCA 2003).

It seems to me I recollect an issue some years ago where the tester at USACIL(?) had been using drugs and doing so when on duty. ??? (Anyone else remember that one?)


Then there was the infamous "Mobley" letter, which was not appreciated.

The "Mills" problem and USACIL. See United States v. Luke, 69 309 (C.A.A.F. 2011).
3 Comments

Court of Appeals for the Armed Forces

9/18/2023

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As a step forward, the court has a new link on its website, which will be especially helpful to practitioners at trial. 

As a basic part of pretrial preparation, we should be looking for developing or new issues to see if they should be raised in a pretrial motion--to preserve the issue for appeal.

You can find some of the information on CAAF's page for grants and summary disposition.

The new link is for briefs in cases granted but not yet scheduled for oral argument. (link.) Once the hearing date you will get the briefs updated.

Hopefully, they will set up a page with a link to Supplements to Petitions where the appellant raises meritorious issues. Reading the Supplements (and Government responses), can be just as helpful in litigating issues at trial regardless of CAAF's grant or denial.
0 Comments

Army Court of Criminal Appeals

9/18/2023

1 Comment

 

United States v. Jarlego

While prosecuting Jarlego for two specifications of raping a child and a sexual abuse of a child, the prosecution succeeded in having the MJ admit a ""birth verification" document offered to prove the age of the victim, who did not testify." And accordingly, gets Jarlego a new trial.

The defense had objected for hearsay, hearsay within hearsay, best evidence, and relevance." They did not specifically object on confrontation grounds. 
The defense also argued the document was prepared "with an eye towards litigation."

ACCA declined the Government's invitation to find the defense waived the confrontation objection at trial  because they did not use the magic phrase "confrontation clause" as an objection.

A specific objection with appropriate magic words is always to be commended. But, ACCA points out that objections can sometimes be good enough without magic words.
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.
ACCA evaluates the admissibility of Prosection 1, finding it fails the appropriate admissibility tests. The court reminds us that 
  • The Sixth Amendment prohibits the admission of testimonial statements of a witness who did not appear at trial, unless the witness is unavailable to testify and the defendant had had a prior opportunity for cross examination.
  • "{i]n determining whether a statement is testimonial hearsay, we assess whether it is 'made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." 
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.
Orlando v. Nassau County DA.

SCOTUSblog.
1 Comment

September 14th, 2023

9/14/2023

0 Comments

 
​Wednesday, September 13, 2023
Certificate for Review
 
No. 23-0250/AF. H.V.Z v. U.S. & Fewell. CCA 2023-03. Notice is given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Article 6b on this date on the following issues:
 
I.  DID THE MILIRARY JUDGE ERR WHEN HE DETERMINED THAT H.V.Z.'S DOD HEALTH RECORD WAS IN THE POSSESSION, CUSTODY, OR CONTROL OF MILITARY AUTHORITIES PURSUANT TO RCM 701(a)(2)(A) AND RCM 701(a)(2)(B)?
 
II.  DID THE MILTIARY JUDGE ERR WHEN HE DID NOT CONSIDER H.V.Z.'S WRITTEN OBJECTION TO PRODUCTION OF HER DOD HEALTH RECORD AS HE FOUND SHE DID NOT HAVE STANDING NOR A RIGHT TO BE HEARD?
 
III.  WHETHER H.V.Z. MUST SHOW THE MILITARY JUDGE CLEARLY AND INDISPUTABLY ERRED FOR WRIT TO ISSUE UNDER ARTICLE 6b(e) UCMJ OR SHALL ORDINARY STANDARDS OF APPELLATE REVIEW APPLY?

And two cases, same issue.
​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, . . . 
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Army Court of Criminal Appeals

9/13/2023

0 Comments

 

United States v. Strong

The case presents a novel issue. As part of an investigation into a truck rollover during a training mission at the USMA, investigators had information to believe the driver was using her cell phone or smartwatch at or near the rollover time. Thus, a warrant to seize the digital devices was obtained and executed.
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.
Having taken physical possession of the phone, the agent followed standard procedure and put the phone in airplane mode and then in a Faraday bag. Uuum, turns out the bag was mislabelled. So, sometime after the seizure, the Appellant was able to "wipe" the phone. The issue then was whether the appellant could be convicted of violating Article 131e, UCMJ, based on the evidence. The appellant argued that the phone had already been seized when she took action to wipe it.
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)). 
The court provides a lengthy explanation of what investigators must do to secure digital evidence on a cell phone before the "seizure" is complete. With that in mind, 
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.
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Court of Appeals for the Armed Forces

9/7/2023

0 Comments

 
​No. 23-0207/AF. U.S. v. Samuel H. Smith. CCA 40202. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:
 
WHETHER APPELLANT'S CONVICTION FOR BREACH OF PEACE, BASED EXCLUSIVELY ON SPEECH, IS LEGALLY INSUFFICIENT AND UNCONSTITUTIONAL WHERE, INTER ALIA, ALL PARTIES AGREE THE CHARGED SPEECH DID NOT CONSTITUTE "FIGHTING WORDS."
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