Colleague and friend Patrick Korody has this list. He missed several.
The Brooks Air Force Testing Lab. Ultimately prosecutors and the appellate courts got tired of hearing about this problem and decided that after several months it was no longer relevant. See United States v. Jackson, 2003 CCA LEXIS 27 (AFCCA); United States v. Gonzalez, 2003 CCA LEXIS 57 (AFCCA); United States v. Mann, 59 M.J. 27 (AFCCA 2003).
It seems to me I recollect an issue some years ago where the tester at USACIL(?) had been using drugs and doing so when on duty. ??? (Anyone else remember that one?)
Then there was the infamous "Mobley" letter, which was not appreciated.
The "Mills" problem and USACIL. See United States v. Luke, 69 309 (C.A.A.F. 2011).
While prosecuting Jarlego for two specifications of raping a child and a sexual abuse of a child, the prosecution succeeded in having the MJ admit a ""birth verification" document offered to prove the age of the victim, who did not testify." And accordingly, gets Jarlego a new trial.
The defense had objected for hearsay, hearsay within hearsay, best evidence, and relevance." They did not specifically object on confrontation grounds. The defense also argued the document was prepared "with an eye towards litigation."
ACCA declined the Government's invitation to find the defense waived the confrontation objection at trial because they did not use the magic phrase "confrontation clause" as an objection.
A specific objection with appropriate magic words is always to be commended. But, ACCA points out that objections can sometimes be good enough without magic words.
We decline and find appellant preserved the error for our review. First, we are generally reluctant to find waiver of constitutional protections. United States v. Sweeney, 70 M.J. 296 (C.A.A.F. 2011). Second, we are unaware of any requirement for opposing counsel to use a certain phrase to preserve an objection. Rather, the essential question is whether the objecting party sufficiently makes the grounds for objection known, so the trial judge can evaluate them. United States v. Killion, 75 M.J. 209, 214 (C.A.A.F. 2016). Opposing the exhibit's admission, the defense said, among other things, it was prepared "with an eye towards litigation." This is a central consideration for deciding whether a document is "testimonial" and qualifies for protection under the confrontation clause. Sweeney, 70 M.J. at 302. We are confident the trial judge recognized -- or at least should have recognized -- that appellant grounded a substantial part of his complaint in the Sixth Amendment. Therefore, we conclude appellant neither waived nor forfeited this constitutional objection.
ACCA evaluates the admissibility of Prosection 1, finding it fails the appropriate admissibility tests. The court reminds us that
Here, appellee must withstand scrutiny on two pieces of ex parte information: the birth verification—a purported examination of a custodial record; and, the accompanying affidavit, which attempts to self-authenticate the former as a hearsay exception. Even a cursory review of the birth verification reveals it was created by government request [.] These are precisely the "circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial."
Wednesday, September 13, 2023
Certificate for Review
No. 23-0250/AF. H.V.Z v. U.S. & Fewell. CCA 2023-03. Notice is given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Article 6b on this date on the following issues:
I. DID THE MILIRARY JUDGE ERR WHEN HE DETERMINED THAT H.V.Z.'S DOD HEALTH RECORD WAS IN THE POSSESSION, CUSTODY, OR CONTROL OF MILITARY AUTHORITIES PURSUANT TO RCM 701(a)(2)(A) AND RCM 701(a)(2)(B)?
II. DID THE MILTIARY JUDGE ERR WHEN HE DID NOT CONSIDER H.V.Z.'S WRITTEN OBJECTION TO PRODUCTION OF HER DOD HEALTH RECORD AS HE FOUND SHE DID NOT HAVE STANDING NOR A RIGHT TO BE HEARD?
III. WHETHER H.V.Z. MUST SHOW THE MILITARY JUDGE CLEARLY AND INDISPUTABLY ERRED FOR WRIT TO ISSUE UNDER ARTICLE 6b(e) UCMJ OR SHALL ORDINARY STANDARDS OF APPELLATE REVIEW APPLY?
And two cases, same issue.
No. 23-0202/AR. Robert M. Lundsten, Petitioner v. United States Army Court of Criminal Appeals, Respondent and United States, Real Party in Interest. CCA 20220226. Upon consideration of the petition for extraordinary relief in the nature of a writ of mandamus, it is noted that Petitioner filed a motion in the United States Army Court of Criminal Appeals (ACCA), seeking permission under Rule for Courts-Martial (R.C.M.) 1113 to examine certain sealed materials in the record. The ACCA granted the motion in part but also denied it in part because the motion did not comply with A.C.C.A. R. 6.9. Petitioner now contends that the ACCA should have granted his motion in its entirety. He asks this Court to issue a writ of mandamus directing the judges of the ACCA to permit him to examine the sealed materials at issue. It is ordered that the petition for extraordinary relief is denied. The denial of the petition is without prejudice to Petitioner's filing a motion in the ACCA that complies with A.C.C.A. R. 6.9 or challenges the validity of A.C.C.A. R. 6.9. The denial of the petition is also without prejudice to Petitioner's right to raise the matters asserted during the course of normal appellate review.
The case presents a novel issue. As part of an investigation into a truck rollover during a training mission at the USMA, investigators had information to believe the driver was using her cell phone or smartwatch at or near the rollover time. Thus, a warrant to seize the digital devices was obtained and executed.
The Agent, accompanied by a Noncommissioned Officer ("NCO") from appellant's unit, located appellant in her sleeping area, at whichtime the Agent identified herself to appellant as a CID agent. She further told appellant she had a warrant to seize appellant's cellular phone and smart watch. The Agent briefly left appellant alone with the NCO while appellant was getting dressed, instructing the NCO not to let appellant use her phone or watch. After the Agent heard the NCO say "you're not allowed to be on the phone" several times, she entered the room and saw appellant attempting to use her phone. Indeed, even after the Agent seized the phone, appellant tried multiple times to physically snatch the phone back out of the Agent's hands. Specifically, the Agent testified that appellant was "belligerent" in
Having taken physical possession of the phone, the agent followed standard procedure and put the phone in airplane mode and then in a Faraday bag. Uuum, turns out the bag was mislabelled. So, sometime after the seizure, the Appellant was able to "wipe" the phone. The issue then was whether the appellant could be convicted of violating Article 131e, UCMJ, based on the evidence. The appellant argued that the phone had already been seized when she took action to wipe it.
The statute criminalizes actions taken by an accused to prevent the seizure of property by authorized personnel. "Prevent" means to keep something from happening or existing. Therefore, by definition, any action to "prevent" a seizure of property must occur before the seizure of the property. As such, the statutory phrase, "are seizing, are about to seize, or are endeavoring to seize" contemplates the destruction, removal, or disposal of the targeted property either before the seizure or while the seizure is ongoing. As appellant observes, it is not designed to cover conduct occurring after the property is seized. See United States v. Hamilton, 82 M.J. 530, 531 (Army Ct. Crim. App. 2022).
The court provides a lengthy explanation of what investigators must do to secure digital evidence on a cell phone before the "seizure" is complete. With that in mind,
we find that the routine efforts of law enforcement to protect digital media on a seized physical device are part and parcel o f the seizure of digital media. Under this analysis, a seizure is ongoing while those authorized to seize the property execute the protocols necessary to isolate and preserve the digital media. For purposes of Art. 131e, UCMJ, we further find that digital media is "seized," and beyond the reach o f the statute, when the device containing it is secure from passive or active manipulation, even i f that does not occur until the targeted data is copied or otherwise transferred from the seized device at some other location.
No. 23-0207/AF. U.S. v. Samuel H. Smith. CCA 40202. 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 granted on the following issue:
WHETHER APPELLANT'S CONVICTION FOR BREACH OF PEACE, BASED EXCLUSIVELY ON SPEECH, IS LEGALLY INSUFFICIENT AND UNCONSTITUTIONAL WHERE, INTER ALIA, ALL PARTIES AGREE THE CHARGED SPEECH DID NOT CONSTITUTE "FIGHTING WORDS."
The JSC website now has the MCM 2023 on line. It is accompanied with this note,
The MCM (2023 edition) incorporates amendments to Parts II through V of the MCM (2019) as made by Annex 1 of Executive Order 14103 (July 28, 2023). This edition also includes Part I and Appendix 12A from the MCM (2019 edition). Of note, the MCM (2023 edition) will not include the supplementary materials typically found within the MCM, except for a forthcoming Preface, once approved. A subsequent MCM (2024 edition) will incorporate Annexes 2 and 3 of the Executive Order and should be published no later than the end of this year.
Also on that page is a floe chart of the new referral system courtesy of the USMC.
Oh, and the cover is blue.
Friday, August 25, 2023
Petition for Grant of Review - Summary Disposition
No. 23-0004/AF. U.S. v. Humphrey Daniels III. CCA 39407. On further consideration of the granted issue, 83 M.J. (C.A.A.F. 2023), and in view of United States v. Harrington, 83 M.J. ___ (C.A.A.F. 2023), it is ordered that the decision of the United States Air Force Court of Criminal Appeals is affirmed as to findings but set aside as to sentence. The case is returned to the Judge Advocate General of the Air Force for remand to that court for a new review under Article 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c) (2016). In its review, the AFCCA should consider whether any of Appellant's challenges to the delivery of the unsworn victim statement during the sentencing phase of his court-martial have been waived, forfeited, or preserved, and address them accordingly. See United States v. Steele, 83 M.J. 188, 191 (C.A.A.F. 2023) (explaining that "[w]hether an issue is waived or forfeited is an issue of law that this Court could decide" but concluding that it was preferable to "remand the case to allow the [CCA] to rule on th[at] question in the first instance").
Appellant’s case is before us (AFCCA) for the second time. A general court-martial composed of officer members convicted Appellant, contrary to his pleas, of one specification of negligent dereliction of duty, one specification of rape, and four specifications of conduct unbecoming an officer and a gentleman in violation of Articles 92, 120, and 133, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 920, 933, corresponding to Charges I, II, and III, respectively. The court members adjudged a sentence of a dismissal, confinement for three years, and a reprimand.
Daniels initially benefitted from Manangahas but then didn't because of Briggs. Among the issues was an IAC claim,
whether Appellant’s lead civilian trial defense counsel was ineffective by failing to challenge a court member, failing to fully cross-examine the alleged rape victim, failing to request a certain findings instruction, failing to object to the alleged victim presenting her unsworn statement in question-and-answer format through trial counsel, and failing to disclose to Appellant a personal conflict of interest[.]
Here is, partly, what seems to have drawn the remand.
During presentencing proceedings, trial defense counsel objected to TS being permitted to give an unsworn statement to the court pursuant to R.C.M. 1001A on the grounds that the rule did not exist and unsworn victim statements were not authorized at the time of the offense in 1998. Trial defense counsel also objected to TS providing her unsworn statement orally in a question-and-answer format, on the grounds that R.C.M. 1001A did not specifically enumerate such an option, and to not being given an advance written copy of the unsworn statement. The trial judge ultimately overruled the first two objections, but she did require TS to present her oral unsworn statement in an Article 39(a), UCMJ, 10 U.S.C. § 839(a), session before providing it to the court members. During this Article 39(a), UCMJ, session, the military judge observed that R.C.M. 1001A(e)(2) “seem[ed] to require the victim’s own counsel do the questioning.” In response, trial defense counsel clarified that the Defense “d[id] not have an objection to the government counsel doing the question and answer.” After trial counsel additionally represented that the proposed question-and-answer presentation had been coordinated with TS’s Special Victims’ Counsel (SVC) and that it was what TS wanted, the military judge allowed it.
In their declarations, all three trial defense counsel state Mr. AC made a “strategic decision” not to object to trial counsel’s participation. As Mr. AC explained, the evident alternative was that TS’s SVC would conduct the questioning, and trial defense counsel believed questioning by the trial counsel would lead to a “more tightly constrained” and “less emotional” unsworn statement, which was preferable from the Defense’s perspective. We find this was a reasonable strategic decision to forego the objection.
I dunno. The DC statement contains sufficient language of waiver based on a reasonable tactical choice.
Perhaps the earlier objection to the TC lead Q&A confuses things, "Trial defense counsel also objected to TS providing her unsworn statement orally in a question-and-answer format, on the grounds that R.C.M. 1001A did not specifically enumerate such an option[.]"
In U.S. Navy Seals, et. al. v. Biden. et. al., the court has dismissed the case.
This appeal involves the Navy's near-categorical refusal to accommodate servicemembers' inability to receive a vaccine due to their religious convictions. The district court twice enjoined the Navy's policies as likely illegal under RFRA. After entry of those injunctions, however, Congress ordered the military branches to rescind their mandates. The Navy complied with that directive and then went above and beyond it—rescinding all the challenged policies and formally announcing that COVID-19 vaccines would not be imposed on any servicemember.
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