United States v. Thompson is the first opinion of the new season. Judge Maggs writes for a unanimous court (with Senior Judge Erdmann sitting in the fifth chair).
Appellant argues that the United States Air Force Court of Criminal Appeals (AFCCA) erred in affirming a judgment that he sexually assaulted a fifteen-year-old girl. Appellant asserts the AFCCA erred in conducting its factual sufficiency review by requiring him to prove his mistake of fact defense with “direct evidence.” We agree that certain language in the AFCCA’s opinion supports Appellant’s argument. We therefore set aside the AFCCA’s decision and remand the case for a new factual sufficiency review.
AFCCA's unpublished opinion is here. While noting AFCCA's description of the legal rules "at length" relating to factual sufficiency, Judge Maggs then goes on to say (and quote AFCCA)
Transforming Military Justice
The Fiscal Year 2022 National Defense Authorization Act (FY22 NDAA) works enormous change to the Military Justice System. Spurred by concerns over the Department of Defense’s (DoD) poor handling of sex related and other serious offenses, Congress took the heretofore unprecedented step of removing Commanders from the decisions to prosecute enumerated “covered offenses.” Rather, each Service now has a 1-Star led Office of the Special Trial Counsel (OSTC) responsible for the preferral, referral, and prosecution of all such offenses. In this post, I argue that this is a mere half measure of doubtful efficacy; and that if Congress can – and must – go farther. Congress should strip military commanders and uniformed personnel of all criminal prosecution functions, and leave commanders with a revised Article 15 (Non-Judicial Punishment) authority to preserve good order and discipline.
United States v. Ballard, 79 M.J. 675 (A. F. Ct. Crim. App. 2019) pet. denied 79 M.J. 420 (C.A.A.F. 2020).
Ballard pled guilty to (1) one specification of rape of a child, six specifications of aggravated sexual contact with a child, and one specification of indecent liberties with a child, in violation of Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920;1 (2) one specification of rape of a child and three specifications of sexual abuse of a child, in violation of Article 120b, UCMJ, 10 U.S.C. § 920b;2 and (3) three specifications of sodomy of a child, in violation of Article 125, UCMJ, 10 U.S.C. § 925.3 The military judge sentenced Appellant to a dishonorable discharge, confinement for 50 years and one day, forfeiture of all pay and allowances, and reduction to the grade of E-1. The convening authority approved only 40 years of confinement in accordance with the PTA and approved the remainder of the adjudged sentence.
On appeal, he argued a lack of authority to recall him for prosecution from retirement and therefore lack of jurisdiction. AFCCA denied relief and CAAF denied his petition.
Ballard then filed a pro se petition for habeas corpus against the Secretary of the Air Force in the U. S. District Court for the District of Columbia.
In dismissing the petition the district court relied on three principles: a military prisoner (or one otherwise entitled to habeas relief) must file under 28 U.S.C. § 2241 not 2255, the respondent is the person in charge of the confinement facility, and venue is where the prison facility is located.
Ballard must now file in the federal district court in Kansas; where he is likely to lose based on the 10th Circuit’s case law regarding “full and fair consideration” of his legal issues in the military courts. Interestingly, the court did write on the merits of the claim and considered the Circuit’s decision in Larrabee.
A federal court may grant habeas corpus relief where a prisoner demonstrates that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c). However, a federal court's review of court-martial proceedings is limited. Thomas v. U.S. Disciplinary Barracks, 625 F.3d 667, 670 (10th Cir. 2010). The Supreme Court has explained that "[m]ilitary law, like state law, is a jurisprudence which exists separate from the law which governs in our federal judicial establishment," and "Congress has taken great care both to define the rights of those subject to military law, and provide a complete system of review within the military system to secure those rights." Nixon v. Ledwith, 635 F. App'x 560, 563 (10th Cir. Jan. 6, 2016) (unpublished) (quoting Burns v. Wilson, 346 U.S. 137, 140, 73 S. Ct. 1045, 97 L. Ed. 1508 (1953)). "[W]hen a military decision has dealt fully and fairly with an allegation raised in [a habeas] application, it is not open to a federal civil court to grant the writ simply to re-evaluate the evidence." Thomas, 625 F.2d at 670 (quoting Burns, 346 U.S. at 142). Instead, it is the limited function of the civil courts "to determine whether the military have given fair consideration to each of the petitioner's claims." Id. (citing Burns, 346 U.S. at 145).
Drinkert v. Johnston, No. 22-3045-JWL, 2022 U.S. Dist. LEXIS 152522, at *9 (D. Kan. Aug. 24, 2022). For those who wonder about the many times an appellate court has said that 'it considered the issues but find they lack merit--that is all' or words to that effect.
"An issue has been given full and fair consideration when it has been briefed and argued at the military court, even if that court summarily disposed of the issue." Williams v. Ledwith, 671 F. App'x 719, 721 (10th Cir. 2016) (unpublished) (citing Roberts, 321 F.3d at 997; Watson v. McCotter, 782 F.2d 143, 145 (10th Cir. 1986)); see also Squire, 674 F. App'x at 826 ("Even a military court's summary disposition of a claim can show adequate consideration of the issues involved."); Burke v. Nelson, 684 F. App'x 676, 680 (10th Cir. 2017) (unpublished) (citing Watson, 782 F.2d at 145) ("[W]hen it comes to court-martial rulings on constitutional claims, our review is sharply limited: so long as the claim was briefed and argued before a military court, we must deny the claim.").
Id, at *11 (emphasis added).
"The U.S. Marine Corps has charged a former drill instructor with negligent homicide and other offenses in the death of a recruit during a grueling training exercise last year, a Marines spokesman said."
Read the story here.
This shows the breadth of a negligent homicide statute.
For those of us who follow Prof. Berman's Sentencing Law & Policy blog, he had this to say.
The question in the title of this post is inspired by today's national holiday, Veterans Day. Based on the latest data from Bureau of Justice Statistics, from this March 2021 report "Survey of Prison Inmates, 2016: Veterans in Prison," veterans make up over 5% of the federal prison population (and nearly 8% of state prison populations). Moreover, as an important new initiative from the Council for Criminal Justice has highlighted, roughly "one third of veterans report having been arrested and booked into jail at least once in their lives, compared to fewer than one fifth of non-veterans." In other words, at both the federal and state level, there are surely no shortage of justice-involved veterans who could and should be a focus of concern and attention on this important day and for whom clemency consideration would be justified.
No. 22-0234/AR. U.S. v. Byunggu Kim. CCA 20200689. 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 issues:
I. WHETHER A GUILTY PLEA TO AN OFFENSE WAIVES A CHALLENGE THAT THE CONDUCT IS NOT A COGNIZABLE OFFENSE UNDER THE UNIFORM CODE OF MILITARY JUSTICE.
II. WHETHER, IN THIS CASE, INTERNET SEARCH QUERIES FOR "DRUGGED SLEEP" AND "RAPE SLEEP" ARE INDECENT CONDUCT; IN THE ALTERNATIVE, WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY FAILING TO ABIDE BY THE HEIGHTENED PLEA INQUIRY REQUIREMENTS UNDER UNITED STATES v. HARTMAN, 69 M.J. 467 (C.A.A.F. 2011).
No. 22-0277/NA. U.S. v. Adam M. Pyron. CCA 201900296R. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862 (2018), it is ordered that said petition is hereby granted on the following issues:
I. WHETHER THE LOWER COURT EXCEEDED THE SCOPE OF REVIEW UNDER ARTICLE 62, UCMJ, AND DEPARTED FROM THIS COURT'S PRECEDENT SET IN UNITED STATES v. VANGELISTI BY ATTACHING MATERIALS TO THE RECORD THAT WERE NOT PROFFERED AT TRIAL AND USING THEM TO APPELLANT'S DETRIMENT.
II. WHETHER THE MILITARY JUDGE CORRECTLY CONCLUDED APPELLANT'S TESTIMONY FROM HIS FIRST COURT-MARTIAL WAS INADMISSIBLE WHERE THE GOVERNMENT FAILED TO PROVE APPELLANT TESTIFIED FOR REASONS UNRELATED TO HIS BIASED MEMBERS PANEL.
The Supplement to the Petition is here, and the Government Answer here.
Oral argument is scheduled for December 7, 2022.
Disclaimer: Posts are the authors' personal views and do not reflect the position of any organization or government agency.
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