Army Court of Criminal Appeals

United States v. Cooper becomes something of a Pyrrhic victory. The Appellant pled guilty to violating a general regulation and a sexual assault. He was sentenced, on 28 October 2020, to one year, RiR, and a DD.

On 7 November 2020, the Appellant requested speedy appellate review.

On 2 December 2020, the MJ entered the judgement.

On 14 May 2021, the TC completed a precertification review of the ROT--a total of only 453 pages in a guilty plea case. 

On 30 May 2021 the MJ authenticated the ROT.

On 28 June 2021, the ROT was received at ACCA--242 days (a little more than eight months) after the sentence was announced.

There were no explanations for any of the delays. Specifically, "There is no explanation in the
record, or appellee's brief, as to why it took 163 days after the entry of judgment for trial counsel to complete his review, which ultimately led to a 182-day delay between the entry of judgment and the final certification."

On 7 July 2022, ACCA affirmed the findings but found unreasonable post-trial delay. The court then affirmed only 11 months and 15 days confinement.

Assuming the Appellant received the regular five days a month good time credit, his MRD would be at ten months (he might have received several extra days for work abatement or such).

Thus, the "unexplained" delays post-trial created the cognizable delay but also made the resulting credit Pyrrhic.

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United States v. Hoefs presents another case of prosecutors delaying required discovery until "the eve of trial." Trial counsel had properly disclosed a CID videotape of appellant's questioning, a handwritten statement, and a typed sworn statement, in accordance with Mil. R. Evid. 304(d) (a rule that requires disclosure before arraignment).

Three days before trial in September 2020, the trial counsel disclosed to appellant's defense counsel that he had just learned that appellant had provided a second two-hour videotaped statement to CID on 12 April 2019 as a precursor to his two written statements on that same day. The government further advised appellant's counsel that CID would allow counsel to review the statement at the CID office during business hours, but that CID would require a court order to release a copy of the statement. Appellant's counsel promptly moved the military judge to compel production of the video; trial counsel did not oppose this motion, and the next day-two days before trial-the military judge ordered CID to produce the video to the defense. Appellant's counsel finally received the video around noon on the day before trial.

A footnote says further,

It is this court's understanding that CID's reluctance to release the 12 April 2019 videotaped interview stemmed from the fact that it was a so-called "pre-polygraph" interview. We stress that this CID-internal characterization of a videotaped interview of the accused is legally meaningless for the purposes of applying Military Rule of Evidence 304, or, for that matter, any other applicable discovery rules. That is to say, regardless of what CID calls it, all videotaped interviews of accused servicemembers conducted by law enforcement implicate the black letter of Rule 304(d), which is entitled "Disclosure of Statements by the Accused and Derivative Evidence." As discussed in this opinion, CID's apparent failure to recognize this fact for nearly eighteen months led directly to the suppression of a confession in this case, and could result in even more stringent sanctions in future cases.

After the litigation, the appellant pled,
(1) assault-not guilty.
(2) wrongful use of marijuana-guilty.
(3) desertion terminated by apprehension-not guilty, but guilty of the lesser
included offense of absence without leave (AWOL) terminated by apprehension.
​(4) violation of a lawful general order-not guilty.

Appellant was found guilty of all charges except for a desertion and was sentenced to 125 days and a BCD. He had served 157 days of pretrial confinement warranting almost Allen credit.

That the defense did not ask for a continuance, because "he did not desire a continuance due to his continuing pretrial confinement, where he had already served over five months, or what his counsel characterized as "approaching a reasonable amount" for the charged offenses[,]" may have saved the day for the government. Rather, the defense argued for dismissal of the affected charge(s).

In the alternative, the MJ suppressed the statements, which "fell comfortably within her zone of discretion and addressed any prejudice to appellant resulting from the late disclosure.

Further, because the appellant entered mixed pleas and was tried by military judge alone, and at some point "appellant characterized suppression as an "appropriate remedy[,]"" The court raises the question of waiver or invited error, but that question doesn't matter because the appellant got all the relief legally due. The court proffers five reasons dismissal was not appropriate.

[T]he military judge's suppression ruling blunted any tactical disadvantage that defense could have suffered-indeed, the ruling turned the late disclosure into a tactical win for the defense and appellant has not shown that the trial would have had a different outcome but for his need to respond to this late­ breaking issue. 
 
[A]ppellant seemingly claims that the government may have bargained away the assault specification had trial counsel known of the existence of the video. This is pure speculation, and belied by the fact that the government went forward with the assault specification even after the suppression ruling.

[A]ppellant claims that he suffered prejudice because the military judge, as fact-finder, was
unduly influenced by her exposure to the [supressed statements]. This claim also rings hollow. The sifting of admissible and inadmissible evidence is routine to the judicial function, and the law recognizes that judges are "presumed to know the law and to follow it absent clear evidence to the contrary."

Appellant could have requested [a] change [in] forum selection for the contested specifications from judge alone to panel.

[A]ppellant did not so much as voir dire, much less challenge, the military judge at trial for what he now claims on appeal was an issue prejudicial to his case. See United States v. Sanchez, 81 M.J. 501, 506 (Army Ct. Crim. App. 2021) ("In criminal litigation, the trial is the 'main event,' and not 'simply a tryout on the road to appellate review."').

Query, is it proper to ask what the trial counsel was doing when communicating with CID and getting access to all of the appellant's statements. The law is clear that information in the hands (OK, files) of CID is in the hands of the trial counsel.

"Trial counsel must exercise due diligence in reviewing not only the evidence in his or her possession, but also that in the possession, control, or custody of other government authorities, to determine the existence of discoverable information. See United States v. Simmons, 38 M.J. 376, 381 (C.M.A. 1993); United States v. Williams, 50 M.J. 436, 441 (C.A.A.F. 1999). Trial counsel is required to review "files of law enforcement authorities that have participated in the investigation of the subject matter of the charged offenses."

Rereading Simmons is encouraged--it involves a TC's failure to get an alleged victims statements to a CID polygrapher. While the case is not about a failure to get the accused's statements, the generaly principle and duty of TC to act in apposite. There the C.M.A. said, "We hold that legal error occurred when trial counsel failed to discover and disclose evidence of contradictory statements of the rape prosecutrix made to a government polygrapher prior to trial. RCM 701(a)(2) and (6), Manual for Courts-Martial, United States, 1984; cf. United States v. Brooks, 966 F.2d 1500, 1502-04 (D.C.Cir.1992).

If upon finding existence of the undisclosed video, the CID balks at providing access. the trial counsel should send a Vaugh letter to the defense and move for production under Criminal Investigation Command Regulation 195-1, Criminal Investigation Operational Procedures [CID Reg. 195-1].

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In United States v. Frasur, he pled guilty to AWOL, larceny, and communicating a threat. He was sentenced to 110 days and a BCD. The issue on appeal was the erroneous admission of an Article 15 punishment.

During the presentencing phase of appellant's court-martial, the government moved to admit into evidence a company grade Article 15 that appellant received less than two years prior to his court-martial while assigned to his current General Court-Martial Convening Authority (GCMCA). Appellant's defense counsel objected to its admission "on the basis of authentication and hearsay ··." In response, the government argued the Article 15 bore "an attestation memorandum from the paralegal that pulled the Article 15 from a system of records regularly maintained and regularly used by that paralegal." Defense counsel argued that the business records exception should not apply because the "attestation should be coming from S 1 as this document is appropriately maintained in Private Frasur's AMHRR; that's where it's stored.? The military judge clarified that the Article 15
was pulled from Military Justice Online (MJO) and not appellant's AMHRR­.

Finding error, the court concludes that 90 days is the appropriate sentence of confinement.

Pursuant to our recent opinion in United States v. Lewis, ARMY 20210179, 2022 CCA LEXIS 303 (Army Ct. Crim. App. 20 May 2022), we find that the unit paralegal copy in MJO does not constitute a "file in which the record is properly maintained by regulation" within the meaning of AR 27-10. AR 27-10, para. 5-37a(4). The outlined purpose of MJO is to be the primary tool for: (1) "creating, processing, and managing administrative reprimands, administrative separation, NJP, and courts-martial[;] and, (2) "for generating data and conducting analysis related to the execution of administrative actions and the practice of military justice." AR 27-10, para. 14-la. The MJO application is not a personnel file but rather, an application for creating and processing adverse administrative actions and NJP and for data analysis.