Nothing like Volokh Conpiracy doing your work for you.
United States v. Rocha.
"The U.S. Air Force Court of Criminal Appeals doesn't resolve whether such conduct is substantively constitutionally protected from criminal punishment, but holds that military law didn't put the defendant on notice that the conduct was illegal."
A general court-martial comprised of officer members convicted Appellant, contrary to his pleas, of one specification of indecent conduct—engaging in sexual acts with a sex doll with the physical characteristics of a female child—in violation of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934. 1 Appellant was found not guilty of an unrelated specification of receiving child pornography between May 2018 and May 2019 in violation of Article 134, UCMJ, 10 U.S.C. § 934 (Manual for Courts-Martial, United States (2016 ed.)). 2 The military judge sentenced Appellant to a bad-conduct discharge, 90 days of confinement, forfeiture of all pay and allowances, and reduction to the grade of E-1. The convening authority denied Appellant’s request for waiver of forfeitures, and approved the sentence in its entirety.
20 Republicans voted Nay and 4 Repulicans did not vote.
If you are in the National Guard (or any service for that matter), don't be a member of Homeowners Association and then later sue them for defamation because they reported you to your commander.
See Coe v. Maricopa Meadows Homeowners Association, No. 1 CA-CV 21-0641, Court of Appeals of Arizona, Div. One, Filed December 13, 2022.
No. 22-0280/AF. U.S. v. D'Andre M. Johnson. CCA 39676. 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 hereby granted on the following issue:
WHETHER MILITARY OFFICIALS ACTED WITH DELIBERATE INDIFFERENCE IN SENDING APPELLANT TO LOWNDES COUNTY JAIL—A CIVILIAN CONFINEMENT CENTER WITH "A HISTORY OF INHUMANE LIVING CONDITIONS"—AND WHETHER APPELLANT SUFFERED CRUEL AND UNUSUAL PUNISHMENT THEREBY WHEN, INTER ALIA, CONFINEMENT OFFICIALS FAILED TO PROTECT HIM FROM PHYSICAL ATTACK, WITHHELD HIS MAIL, WITHHELD VISITORS, AND WOULD NOT LET HIM GO OUTSIDE WHILE HE LIVED IN UNSANITARY CONDITIONS.
Note this is an Air Force case where civilian confinement conditions are again in issue. See our earlier posts here and here.
The International Criminal Court appeals chamber in The Hague today released their opinion affirming Ugandan Lord's Resistance Army Dominic Ongwen's conviction and 25-year sentence for war crimes and crimes against humanity. The ICC's opinion extensively cites to and discusses NIMJ's amicus brief. Jim Young, Phil Cave, Frank Rosenblatt, and former NIMJ rapporteur (now an Army JA) Emily Eslinger wrote the brief. The brief focused on lack of mental responsibility (duress as a defense) and cumulative convictions (multiplicity). Earlier this year Phil Cave and Frank Rosenblatt travelled to The Hague to give the oral presentation on behalf of NIMJ.
The ICC's (over 600 page) opinion: https://lnkd.in/gUst94sU
No. 23-0027/AF. U.S. v. James T. Cunningham. CCA 40093. 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 hereby granted on the following issues:
I. WHETHER THE AIR FORCE COURT PROPERLY APPLIED UNITED STATES v. EDWARDS, 82 M.J. 239 (C.A.A.F. 2022) IN FINDING ERROR—BUT NO PREJUDICE—FOR A VICTIM IMPACT STATEMENT THAT INCLUDED VIDEOS, PERSONAL PICTURES, STOCK IMAGES OF FUTURE EVENTS, AND LYRICAL MUSIC THAT TOUCHED ON THEMES OF DYING, SAYING FAREWELL, AND BECOMING AN ANGEL IN HEAVEN.
II. WHETHER TRIAL COUNSEL'S SENTENCING ARGUMENT WAS IMPROPER UNDER UNITED STATES v. WARREN, 13 M.J. 278 (C.M.A. 1982) AND UNITED STATES v. NORWOOD, 81 M.J. 12 (C.A.A.F. 2021), RESPECTIVELY, WHEN SHE: (1) ARGUED THAT APPELLANT'S UNCHARGED, FALSE STATEMENTS WERE AGGRAVATING EVIDENCE AFTER SHE HAD PREVIOUSLY CITED CASE LAW TO THE MILITARY JUDGE THAT SAID FALSE STATEMENTS WERE NOT ADMISSIBLE AS EVIDENCE IN AGGRAVATION; AND (2) TOLD THE MILITARY JUDGE THAT HE HAD SEEN THE MEDIA AND THE WORLD WAS WATCHING, TO JUSTIFY HER SENTENCE RECOMMENDATION.
III. WHETHER APPELLANT WAS DEPRIVED OF THE RIGHT TO A UNANIMOUS VERDICT UNDER RAMOS v. LOUISIANA, 140 S.CT. 1390 (2020), AFTER THE MILITARY JUDGE DENIED HIS MOTION FOR UNANIMITY, DENIED HIS REQUEST TO POLL THE PANEL ON WHETHER ITS VERDICT WAS UNANIMOUS, AND THE AIR FORCE COURT DISMISSED THE ISSUE WITH NO DISCUSSION.
United States v. Jordan Jones is a published decision where
Officer and enlisted members sitting as a general court-martial convicted Appellant, contrary to his pleas, of sexual assault in violation of Article 120, Uniform Code of Military Justice [UCMJ]. Appellant was also convicted, pursuant to his pleas, of desertion, absence without leave, escape from custody, false official statement, wrongful possession of a controlled substance, and wrongful appropriation in violation of Articles 85, 86, 87a, 107, 112a, and 121 UCMJ, respectively. Appellant asserts three assignments of error [AOE]: (1) the admission of his statement, “I’m going to tap that” implicated Appellant’s substantial right to be presumed innocent under the Due Process Clause of the Fifth Amendment, and but for that error, the outcome of the proceeding would have been different[.]
A first point to consider is whether to give, and what must be included in a notice under Mil. R. Evid. 404(b).
Prior to trial the Government provided notice under Mil. R. Evid. 404(b) that it intended to offer certain non-hearsay statements of Appellant. Among this evidence was a statement Appellant made earlier in the evening to Machinist’s Mate Third Class [MM3] Charlie (one of the other Sailors present at the hotel), in which Appellant stated that “he was going to have sex ‘regardless’ that night, or that he was ‘going to get some tonight,’ or words to that effect.”8 The Government made clear in its notice that it was not conceding that the statements were covered by 404(b) however, “out of an abundance of caution” it was providing notice.9 The Government’s notice did not specifically contain Appellant’s alleged statements including the words “tap that,” “hit that,” or words that conveyed the same meaning. Appellant subsequently filed a motion to exclude evidence listed in the Government’s motion; however, Appellant’s motion was limited to other unrelated evidence in the Government’s notice pertaining to an alleged violation of a protective order. The Government ultimately elected not to introduce that evidence. Appellant’s motion to exclude did not include Appellant’s alleged statements “he was going to have sex ‘regardless’ that night” or, that he was “going to get some tonight.”
#2 for this season is United States v. Day.
The sole assigned issue in this appeal is “[w]hether attempted conspiracy . . . is a viable offense under the UCMJ.” Consistent with our holding in United States v. Riddle, 44 M.J. 282, 285 (C.A.A.F. 1996), we answer this question in the affirmative. We therefore affirm the judgment of the United States Air Force Court of Criminal Appeals (AFCCA).
This was a guilty plea case with what appears to be standard language to waive all waivable motions.
In short, Appellant informed JM that she wanted to kill her husband to obtain the benefits of a life insurance policy. Appellant and JM agreed to meet in a Walmart parking lot so that JM could supply Appellant with a substance for poisoning her husband. When they met, Appellant paid JM $100, and JM provided Appellant with a clear plastic bag containing a white substance that JM said was fentanyl. Appellant did not know that JM was working as an informant for Air Force investigators and that the substance JM provided was not actually fentanyl.
So the first question for Judge Maggs, writing for the court (including Sr. Judge Effron) was whether the issue presented was waived as a result of the unconditional guilty plea.
At trial the MJ went through the usual colloquy with counsel about what potential issues would be waived. At no time, they were asked four times, did the defense raise a failure to state an offense as a potentially waived issue. The unconditional guilty plea continued through sentencing.
To be “clearly erroneous” a finding of fact “must be more than just maybe or probably wrong; it must strike us with the force of a five-week-old unrefrigerated dead fish.”
United States v. Rivera, __ M.J. ___ (N-M. Ct. Crim. App. 2022) citing United States v. Cooper, 80 M.J. 664, 672 n.41 (N-M. Ct. Crim. App. 2020).
To quote brother Pat McLain, that is all.
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
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