Brown is the kick-off opinion for the new term. Chief Judge OHLSON announced the judgment of the Court, in which Judge SPARKS, Judge MAGGS, Judge HARDY, and Judge JOHNSON joined in part. Judge SPARKS filed a separate opinion concurring in part and dissenting in part, in which Judge JOHNSON joined. Judge HARDY filed a separate opinion concurring in part and dissenting in part, in which Judge MAGGS joined in part.
Sometimes a seemingly simple statute can be devilishly difficult to interpret. As reflected by the various opinions in this case, that certainly is true with Article 91(3), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 891(3) (2018), which prohibits disrespect towards a warrant, noncommissioned, or petty officer. Nonetheless, this case resolves two key points. First, a majority of this Court holds that an accused servicemember can be convicted under Article 91(3) even if his or her disrespectful conduct occurs outside the physical presence of the victim. Importantly, that means that disrespectful language or behavior towards a warrant, noncommissioned, or petty officer can be criminally actionable even when it is remotely conveyed using a digital device such as a smartphone and even when the disrespectful language or behavior is conveyed via social media. And second, a majority of this Court holds that under Article 91(3), servicemembers can only be held criminally liable if at the time they conveyed the disrespectful language or behavior the victim was then in the execution of his or her office. The reasons for these conclusions are explained below.
The opinion does not seem to change the law on disrespect to a senior enlisted person, rather it applies the statutory definitions to social media and other forms of digital communication.
Therefore, we hold that disrespectful language or behavior towards a warrant, noncommissioned, or petty officer can be criminally actionable even when it is remotely conveyed using a digital device and even when the disrespectful language or behavior is conveyed via social media
Parler is a case in which the court has set aside sexual assault convictions because of IAC.
The facts suggest that Parler had a solid mistake defense, much of which is captured in the CID interview and in a letter written by the Appellant. The defense however failed to seek admission of the evidence through a motion in limine.
In the interview, however, appellant also talked about his prior sexual experiences with the victim. Among other things, appellant described how in the past "it was kind of games," where the victim would say "no," he would stop and "she would just look at me," and then they would keep going again. Appellant also told the agent because of these past experiences, "I figured she was playing around," and she also did not mean "no" on this occasion. Appellant also described how teasing was part of the foreplay in their 4 or 5 prior sexual encounters. Finally, appellant said he held down the victim's wrist during oral sex because that was what they usually did, and in the past she had given him a "seductive no." None of this evidence (hereinafter referred to as appellant's "unadmitted statements") was before the military judge when he rendered his verdict.
Miller presents an important reminder that simple cases are not always simple.
UA cases are usually simple. You have official records showing a person is assigned to a unit, the person was absent from the unit, and they did not return to military control until a particular date. Whether the UA was just that, a UA, or a desertion, the offense is committed on the day of absence or formation of the intent to desert and is not a continuing offense.
Miller suggests that when an accused goes absent in 1978 and is not returned until 2022, after being arrested in Soddy Daisy, TN, people ought to be checking the documentation and the statute of limitations.
In 1978 the SoL was three years. In Miller, the charges were not preferred until 2022. Yep, people in Admin or Legal didn't do a preferred charge sheet at the 30 day mark when Miller was administratively considered a deserter and may not have done a DD 553.
Miller plead guilty. When asked if he understood the term to waive all waivable motions Miller said yes. When the DC was asked about any motions to be waived the reply was "no[ne]." Ooops. Because of this, no inquiry was made by the MJ about waiver of the obvious SoL defense.
Miller's case was presented on its merits.
NMCCA points out that it wasn't until the court specified the issue that any judge advocate in the process became aware of the SoL issue. And, of course points out that the Government arguments supporting waiver don't hold water if all the lawyers in the process weren't aware of the issue.
I'm assuming, without checking, that with the many years of dead time, Miller might still be processed for an OTH. Miller already has a HD for four years in the Marine Corps.
Zimmerman has a couple of interesting points.
(3) Did the Appellant receive ineffective assistance of counsel.
(5) Did the military judge abuse his discretion when admitting propensity evidence under Military Rules of Evidence (Mil. R. Evid.) 404(b) and 413.
(6) Did the military judge abuse his discretion in admitting certain sentencing evidence.
(7) Did trial counsel commit prosecutorial misconduct during his argument on sentencing.
The defense had information that
[A]pproximately seven months before the sexual assault she had gone on one date with Appellant. SP told the agents that during the date she and Appellant had “made out,” and that he had consensually kissed her when he dropped her off at a friend’s house after the date. However, Appellant and SP did not continue to date thereafter and had no further romantic relationship.
The defense made a deliberate choice not to make a Mil. R. Evid. 412 motion, nor did they raise the 412 information during cross-examination.
DC explained that not seeking to confront SP with evidence of her prior date with Appellant was an intentional strategic and tactical choice. DC explained the Defense assessed the date had low probative value as to whether SP was attracted to Appellant and consented to sexual intercourse approximately seven months later. To the contrary, the fact that there was only one date followed by seven months of inactivity could be interpreted as evidence of SP’s lack of sexual interest in Appellant. In addition, trial defense counsel anticipated SP would be a canny adverse witness who would likely portray her date with Appellant in a negative light on cross-examination, potentially further damaging the Defense’s case. DC explained how he intended to use other methods—such as the perceived improbability of certain aspects of SP’s account, certain allegedly inconsistent statements SP made about the sexual assault, and her motives to fabricate the allegation—to undermine SP’s credibility, such that attempting to confront SP about the date was unnecessary, risky, and of dubious probative value.
Not unreasonably, the court did not find IAC. The opinion suggests the DC did what we do in making a value-added--devaluation analysis. The analysis can be more important to the defense. What value is added to the defense case, how might the prosecution case be devalued, and, just as importantly, what value-added tax may be imposed by the prosecution's rebuttal or use of that evidence?
United States v. Davis
Date & Time:15 Nov 23 at 1300
Location:Judge Abraham Lincoln Marovitz Courtroom - Chicago-Kent College of Law, Illinois Institute
United States v. Jennings
31 Oct 23 - 10003
Panel 3 (AFCCA)
American University Washington College of Law
United States v. Sergeant CHAS E. PHILLIPS
Hearing Date/Time Oct 16, 2023 13:00
Location: Campbell University School of Law
Counsel for Appellant Lam; Talley
Panel 2 (ACCA)
Counsel for Appellee Todorow; Rodriguez
Judges Fleming; Penland; Pond
GO TO CASE for the briefs.
Tuesday, October 10, 2023
Order Granting Petition for Review
No. 23-0210/AR. U.S. v. Isac D. Mendoza. CCA 20210647. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:
WHETHER APPELLANT'S CONVICTION FOR SEXUAL ASSAULT WITHOUT CONSENT WAS LEGALLY SUFFICIENT.
In Lake, "A panel of officer members convicted Appellant of 14 specifications of fraudulent use of a credit card, debit card, or other access device, and two specifications of larceny"--the proceeds of which amounted to over $16K from the Navy Exchange.
The primary issue is the admissibility of evidence of a "layered" conspiracy offered under Mil. R. Evid. 404(b). The facts are interesting, to say the least.
The scheme began in May 2019, after Appellant’s boyfriend AA and his friend CH put Appellant in contact with AP, a former military member, who they said could help Appellant make money by using her military status to purchase gift cards and electronics for AP at the NEX. The evidence presented at trial showed Appellant received fraudulent prepaid debit cards from AP that contained stolen credit card account information on the magnetic strip, but did not contain a security chip.
The effort to track down the Appellant are also interesting in their complexity.
Tuesday, October 3, 2023
Order Granting Petition for Review
No. 23-0215/CG. U.S. v. Mark J. Grijalva. CCA 1482. On consideration of the petition for grant of review of the decision of the United States Coast Guard Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:
WHETHER THE UNENUMERATED ARTICLE 134, UCMJ, OFFENSE CHARGED IN SPECIFICATION 2 OF CHARGE III IS PREEMPTED BY ARTICLE 117a, UCMJ, WHICH CONGRESS ENACTED TO ADDRESS THE WRONGFUL BROADCAST OR DISTRIBUTION OF INTIMATE VISUAL IMAGES.
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