For the first time on appeal, Appellant argues that Clause 3 of Article 134, UCMJ (“Clause 3”), is unconstitutional as applied to servicemembers because it denies equal protection of the law. Appellant argues that a defendant in civilian federal court enjoys more constitutional rights than does a military accused, such as entitlement to grand jury indictment, jury size, and the requirement of a unanimous jury verdict. Consequently, according to Appellant, the Government’s election of the military forum under Clause 3 deprives him and other servicemembers of equal protection under the law because civilian federal prosecutors declined to prosecute those offenses. Appellant asks this court to set aside and dismiss Specification 2 of Charge VI (making a silencer) and Specification 5 of Charge VI (selling a firearm to a known felon), which were charged under Clause 3.
. . . 
Appellant must prove the Government has no rational basis for treating a military accused differently from a civilian federal defendant. See Paulk, 66 M.J. at 643. It is well established, however, that the Constitution applies to a military accused differently in many contexts than it does to a civilian defendant. See Easton, 71 M.J. at 175–76. We determine that Congress possessed a rational basis when it passed Clause 3, specifically, the promotion of good order and discipline by allowing military prosecution of federal crimes not necessarily enumerated in the UCMJ. We further conclude Congress possessed a rational basis for making Clause 3 offenses subject to the military court-martial system and not requiring the military provide a military accused the exact same rights as a federal civilian defendant. We also note that Appellant pleaded guilty to the Clause 3 offenses.

What Petitioner has not identified is any right to have the accused’s courtmartial dates set such that they accommodate either her or her victims’ counsel’s schedule. Instead, Petitioner’s potential absence more directly impacts the ability of the Government to present its case, which is to say that if Petitioner’s live testimony is important to the Government’s case, then it is the Government which would seek relief in order to ensure Petitioner’s presence. In this case, the Government requested a continuance for this very reason. That request was denied, and the Government has not sought relief from our court. Just as Petitioner has no legal ability to force the Government to call her as a witness, Article 6b, UCMJ, does not provide Petitioner with authority to challenge—on the Government’s behalf—the military judge’s substantive ruling on the continuance motion with respect to such matters as her availability. Victims involved in court-martial proceedings do not have the authority to challenge every ruling by a military judge with which they disagree; but they may assert their rights enumerated in Article 6b, UCMJ, in the Manual for Courts-Martial, and under other applicable laws.

Two specifications of sexual assault of a child were preferred against Appellant. These specifications related to victims Ms. Bravo and Ms. Lima. An additional charge also alleged a violation of Article 120b, UCMJ, but related to Ms. Sigma, Appellant’s high school girlfriend. All charges and specifications were alleged to have occurred before 1 January 2019.
​
Before trial, Ms. Sigma notified the Government that she no longer wanted to participate in the trial as a witness. The defense was then advised of the Government’s intent to use information regarding Ms. Sigma as propensity evidence under Mil. R. Evid. 414 as it related to the Article 120b specifications involving Ms. Bravo and Ms. Lima. The Government then withdrew and dismissed the charge related to Ms. Sigma. 

argued that the motion to exclude was supported by Kentucky state law and a Naval Criminal Investigation Service interview of Ms. Sigma. Appellant’s position was that Kentucky law did not criminalize his relationship with Ms. Sigma because the age difference between them was within the range protected by Kentucky law and, therefore, the sexual relationship did not amount to an offense.

​The military judge, in ruling on the defense’s Mil. R. Evid. 414 motion, found the issue of whether sexual relations with Ms. Sigma occurred before or after Appellant enlisted in the Marine Corps to be relevant only as to jurisdiction, noting in his ruling that “…whether or not the uncharged misconduct…occurred before or after the accused’s enlistment…would only resolve the…jurisdictional issue of whether the accused could be tried for his alleged misconduct at a court-martial.” We disagree. The military judge’s bundling of events relating to Ms. Sigma under a general concept of “sexual assault of a child” led to legal errors in his Mil. R. Evid. 414 and Mil. R. Evid. 403 analysis. 

The Supreme Court found that a trial court did not need to make a finding by a preponderance of the evidence that the acts occurred in order to admit such evidence. Instead, this type of evidence should be admitted if there is sufficient evidence such that the jury could conclude, based on a preponderance of the evidence, that the defendant committed the similar act. Put differently, the trial court only needs to assess whether there is enough evidence for a reasonable jury to reach the conclusion under a preponderance standard.

The military judge’s ruling indicates his view that “[t]he [Appellant’s] admissions, corroborated by Ms. K.W. and statements of [Ms. Sigma]…is a primary source for both the uncharged misconduct as well as the charged offenses [pertaining to the other victims].” This is notable in that Appellant denied any post-enlistment sexual relations with Ms. Sigma, K.W. clarified that the statements in question were about Ms. Bravo not Ms. Sigma and Ms. Sigma never testified in this case. Having reviewed all the evidence in this case, even in light of the holding in Huddleston, we have doubts that a jury could have reasonably found by a preponderance of the evidence that Appellant had sexual relations with Ms. Sigma, at some time after his enlistment. However, we need not resolve the Mil. R. Evid. 401 and 402 issue at this stage because in addition to the three-part test established by Mil. R. Evid. 414, the military judge must also conduct a Mil. R. Evid. 403 balancing analysis. We find that the military judge abused his discretion in applying the Mil. R. Evid. 403 balancing test, and thus do not need to reach the issue of relevance under Mil. R. Evid. 104(b).
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Thanks to GMJR for the alert on this pending rules change.

1. The Defendant has been charged with an offence of causing death by careless driving on the 26th of August 2022.

2. She was, at the relevant time, a serving airman with the United States Air Force (‘USAF’) based at RAF Lakenheath.

3. She was driving in her vehicle after a PT instruction session at the base to her home address located some 30 minutes (22 miles) away from the RAF base.

​4. En route, her vehicle was involved in a collision with a motor bike. 

primary [] to jurisdiction as regards offences ‘arising out of any act or omission done in the performance of official duty’ lies with the sending state[,]

[A] certificate issued by or on behalf of the appropriate authority of the sending country, stating that the alleged offence, if committed by him, arose out of and in the course of his duty as a member of that force or component, as the case may be, shall in any such proceedings as aforesaid be sufficient evidence of that fact unless the contrary is proved. 

We thank Brigadier (Ret) Paphiti at ​Aspals for bringing this case to our attention.

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. 

However, in a different factual context, the Court of Appeals for the Armed Forces (CAAF) held that property is seized when there is "meaningful interference with an individual's possessory interest in that property." United States v. Hahn, 44 M.J. 360, 362 (C.A.A.F. 1996) (citing United States v. Jacobsen, 466 U.S. 109, 113 (1984)).
. . . 
Based upon the foregoing, we find that the routine efforts of law enforcement to protect digital media on a seized physical device are part and parcel of 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. 131 e, UCMJ, we further find that digital media is "seized," and beyond the reach of the statute, when the device containing it is secure from passive or active manipulation, even if that does not occur until the targeted data is copied or otherwise transferred from the seized device at some other location. 

Whether, to establish that a statement is a "true threat" unprotected by the First Amendment, the government must show that the speaker subjectively knew or intended the threatening nature of the statement, or whether it is enough to show that an objective "reasonable person" would regard the statement as a threat of violence.

 (1) Whether the jury clauses of Article III and the Sixth Amendment or the due process clause of the Fifth Amendment bar a court from imposing a more severe criminal sentence on the basis of conduct that a jury necessarily rejected, given its verdicts of acquittal on other counts at the same trial; (2) whether the Supreme Court‘s decision in United States v. Watts should be overruled; and (3) whether, in avoidance of the constitutional question, the rules of issue preclusion, as applied in federal criminal cases, bar imposition of an aggravated sentence on a factual predicate necessarily rejected by the jury at trial in the same case.