Army Court of Criminal Appeals

United States v. Ironhawk

An Article 62 appeal challenging the military judge's exclusion of Mil. R. Evid. 404(b) evidence: a ruling that proffered statements were not res gestae, that a statement that the accused would "kick her husband's b***" is not indicative of an intent to murder, and talking about divorce isn't even a crime, wrong, or character act for Mil. R. Evid. 404(b).

United States v. K. Davis

Another Article 62 appeal which ACCA grants in a 22 page decision.

[T]he government asserts the military judge erred when he found unlawful command influence (UCI) and dismissed the case with prejudice. We find after a review of the record that: (1) the military judge's findings of fact are not clearly erroneous (2) the defense failed to satisfy its burden in providing some evidence that unlawful command influence occurred, and (3) the military judge abused his discretion by dismissing the charges and specifications with prejudice.

About a page of the decision is devoted to The Government's Negligence. Here is an interesting paragraph.

Even more concerning in this case is the fact that the AV [a paralegal] continued to have access to an electronic copy of the investigative file for several months with no oversight by judge advocates resulting in her accessing the file on more than one occasion. This lack of oversight resulted in the AV providing a status update to CID about the disposition of appellee's case. We wholly agree with the military judge that "[t]he lack of oversight as to AV's access and AV's lack of professional restraint in exercising access are troubling." At no point in any criminal investigation should a victim, paralegal or not, have access to the entire law enforcement file while the case is pending disposition. Restricting access to the prosecutor's copy of an investigative file rests solely with the judge advocate handling the case.

The court concluded that even if there was UCI, the remedy of dismissal with prejudice was inappropriate. Because "the military judge's ruling indicates he was more intent on punishing the government for their negligent actions in losing track of appellee's administrative separation and then preferring charges against him at the 11th hour than tailoring a remedy which would cure any actual UCI."

United States v. Secord

In this case, we face the unique situation regarding a defense motion to compel discovery when the government possessed appellant's cellphone (the container of the evidence) but the government was unable to access any of the cellphone's data (the alleged relevant evidence requested by defense). Appellant argues the military judge erred by granting, in part, the defense motion to compel the discovery of appellant's cellphone. We find the military judge did not err and,​ even assuming arguendo an error occurred, appellant was not prejudiced.

In granting the motion the military judge set some parameters: the accused would have to disclose his PIN to his DFE, the defense DFE would work in a CID space, with a government DFE present. The accused declined to do that. The court went on to assume error and assess prejudice.

Even assuming arguendo that the military judge's ruling was an abuse of his discretion, appellant must still demonstrate prejudice. Appellant cannot point to any evidence or testimony presented at trial establishing impeachment or defense relevant data existed on his cellphone -- an item the contents of which appellant was arguably in the best position to know. At the motion hearing, the defense bore the burden to establish by a preponderance of the evidence that the evidence they sought existed on the cellphone.9 Other than the trial defense counsel's mere and barely perceptible argument -- which is not evidence -- alleging a generic incantation that impeachment evidence existed on the cellphone regarding the three soldier witnesses, the defense did not offer, and after our complete review of the record we did not find, any actual evidence or testimony that any specific impeachment text messages or other data existed on appellant's cellphone that would constitute an "item... relevant to defense preparation."