United States v. Jarlego

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.

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."

(The [i]nvolvement of government officers in the production of testimony with an eye toward trial presents unique potential for prosecutorial abuse") (citing Crawford, 541 U.S. at 56 n.7).)

Appellee argued before us the birth verification was filed in 2007 near the time of birth, and the document at trial was simply a copy of it. This was plainly incorrect and, not surprisingly, no witness so testified. Fundamentally, the government now asks us to find that a certifying affidavit proved a birth verification admissible under Mil. R. Evid. 803(9), where the underlying record it purportedly verified was inexplicably absent from trial. The Constitution and Mil. R. Evid. 803(9) require otherwise, though, lest a trial devolve into an exercise in multi-layered ex parte document gathering.

​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.
 
No. 23-0228/AR. Rene D. Alfaro, Petitioner v. Judges of the U.S. Army Court of Criminal Appeals, Respondent. CCA 2022-14. Upon consideration of the petition for extraordinary relief in the nature of a writ of mandamus and writ of prohibition, . . . 

United States v. Strong

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
trying to take back her phone, such that the Agent finally had to tell her "at ease, Sergeant." The Agent also described how that was the only time in her career that she had to give such an admonishment to the subiect o f a seizure warrant.

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).

​Neither the text ofArticle 131e, UCMJ, nor the explanation in Part IV of the MCM, define when a seizure is complete for purposes ofthe statute. 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, 4 M.J. 360, 362 (C.A.A.F. 1996) (citing United States v. Jacobsen, 466 U.S. 109, 113 (1984)). 

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.

​This framework is necessary to address both evolving technology and the ethereal nature ofdigital evidence. Moreover, it is consistent with the holding in United States v. Hahn, 4 M.J. 360 (C.A.A.F. 1996), because the only "possessory interest" of any relevance to Article 131e, UCMJ, is the capacity to destroy, remove, or otherwise dispose of the putative evidence.

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. 

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.

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[.]

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.

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.
The Navy's actions moot this appeal. So, despite the overwhelming importance of the issues presented, we lack jurisdiction to address them.