National Institute of Military Justice
  • Home
  • About
    • Officers
    • Board of Directors
    • Fellows
  • Orders Project
    • Contact Us
    • Who We Are
    • Sourcebook
  • Trans Rep. Project
  • CAAFlog
  • Global Reform
  • Library
    • Amicus Briefs
    • Position Papers & Letters
    • Reports
    • Gazette
    • Miscellaneous
    • General Military Law
  • Links
    • State Codes
    • Non-DoD Organizations
    • Foreign Systems
  • Prizes
  • Contact Us
  • Donate
  • Home
  • About
    • Officers
    • Board of Directors
    • Fellows
  • Orders Project
    • Contact Us
    • Who We Are
    • Sourcebook
  • Trans Rep. Project
  • CAAFlog
  • Global Reform
  • Library
    • Amicus Briefs
    • Position Papers & Letters
    • Reports
    • Gazette
    • Miscellaneous
    • General Military Law
  • Links
    • State Codes
    • Non-DoD Organizations
    • Foreign Systems
  • Prizes
  • Contact Us
  • Donate

CAAFlog

Court of Appeals for the Armed Forces

9/28/2023

 
Miscellaneous Docket - Filing
 
No. 23-0258/AR. Rene D. Alfaro, Petitioner v. Judges of the United States Army Court of Criminal Appeals, Respondent. Notice is given that a petition for extraordinary relief in the nature of a writ of mandamus was filed under Rule 27(a).
 
Orders Granting Petition for Review
 
No. 23-0204/MC. U.S. v. Thomas H. Tapp. CCA 202100299. It is ordered that said petition is granted on the following issue:
 
WAS APPELLANT DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO AN IMPARTIAL JUDGE?
 
No. 23-0225/AR. U.S. v. Michael L. Wilson. CCA 20210276. It is ordered that said petition is granted on the following issue:
 
WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL ERROR BY ADMITTING APPELLANT'S NOTEBOOK UNDER MILITARY RULE OF EVIDENCE 404(b).

The granted issue is not discussed in the opinion below.

The Supplements are not available online.

Courts of Criminal Appeals

9/28/2023

 

Air Force

In re KS, et. al. is another SVC writ petition.
​Petitioners are three named victims in the general court-martial at Vandenberg Space Force Base, California. The charges include, inter alia, violations of Article 128 and 128b, UCMJ, In re KS et al., Misc. Dkt. No. 2023-06 2 10 U.S.C. §§ 928, 928b.1 Petitioner KS requests we issue a writ requiring the military judge to apply certain provisions of R.C.M. 703 and Mil. R. Evid. 513.2 We deny the petition. 
Essentially the MJ was presented with a "joint" TC and DC motion to compel the production of various medical records of the alleged victims.
They continued:

     The Government’s intent would be to provide (1) the non-communication mental health records, and (2) medical records relating to physical injuries potentially consistent with the allegations in this case for the named victims during the individual charged timeframes, along with any other potentially relevant records, such as indications to medical provide[r]s as to whether they feel safe at home or not.

In its response to the Government’s motion, trial defense counsel asserted that “because the Defense has requested non-communication mental health records, both the Prosecution and Defense recognize these records fall outside of [Mil. R. Evid.] 513 pursuant to the holding by the [United States] Court of Appeals for the Armed Forces in [United States v.] Mellette, 82 M.J. 374 [(C.A.A.F. 2022)].” The military judge ruled on the government motion on 20 July 2023. In it, he ordered trial counsel to identify “non-privileged mental health records [that] are within the possession, custody, or control of military authorities, located at Vandenberg Space Force Base, . . . .” He also ordered trial counsel to “discover” ​any medical or mental health record that is subject to disclosure and “is relevant to the [D]efense’s preparation.” 
At this the petition was filed with a request to stay the proceedings. The stay was denied. KS filed a supplemental brief in which "the two other victims "do not join[.]""

Neither the Government nor the RPI filed any response to the writ filings.
​Petitioner KS alleges the military judge made three errors: (1) concluded the requested records were in the possession of a “military authority;” (2) abrogated his duty to review matters subject to Mil. R. Evid. 513; and (3) violated KS’s right under Article 6b(a)(8), UCMJ, to be treated with fairness and with respect for her privacy and dignity. We find Petitioners failed to show that the right to issuance of the writ is clear and indisputable, and that the issuance of the writ is appropriate under the circumstances.
First takeaway--records held by the military medical group are "in the possession of a "military authority.""

Second takeaway (on the facts here)--the defense request did not ask for records covered by Mil. R. Evid. 513, so there is no MJ duty to follow that Rule before ordering production.

Read More

United States v. Ortiz

9/26/2023

 
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) 

Court of Appeals for the Armed Forces

9/26/2023

 

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.

Air Force Court of Criminal Appeals

9/25/2023

 

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

Coast Guard Court of Criminal Appeals

9/22/2023

 

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.

Military Drug Testing is --Purrfect

9/19/2023

 
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).

Court of Appeals for the Armed Forces

9/18/2023

 
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.

Army Court of Criminal Appeals

9/18/2023

 

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.

September 14th, 2023

9/14/2023

 
​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, . . . 
<<Previous
    Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
    Picture
    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.

    Dockets

    Air Force

    Art. 32.
    Trial.

    Army

    Art. 32.
    Trial.

    Coast Guard

    Art. 32.
    Trial.
    ​"Records."

    Navy-Marine Corps

    Art. 32.
    Trial.
    "Records."

    Archives

    July 2025
    June 2025
    May 2025
    April 2025
    March 2025
    February 2025
    January 2025
    December 2024
    November 2024
    October 2024
    September 2024
    August 2024
    July 2024
    June 2024
    May 2024
    April 2024
    March 2024
    February 2024
    January 2024
    December 2023
    November 2023
    October 2023
    September 2023
    August 2023
    July 2023
    June 2023
    May 2023
    April 2023
    March 2023
    February 2023
    January 2023
    December 2022
    November 2022
    October 2022
    September 2022
    August 2022
    July 2022
    June 2022
    May 2022
    April 2022
    March 2022

    Categories

    All
    ByTheNumbers
    Case2Watch
    CrimLaw
    Evidence
    Fed. Cts.
    Habeas Cases
    IHL/LOAC
    Legislation
    MilJust Transparency
    NewsOWeird
    Opinions ACCA
    Opinions-ACCA
    Opinions AFCCA
    Opinions CAAF
    Opinions CGCCA
    Opinions NMCCA
    Readings
    Sentenciing
    Sex Off. Reg.
    Sexual Assault
    Supreme Court
    Unanimous Verdicts

    RSS Feed

Proudly powered by Weebly