We are trying to research the clemency and parole process as it compares with civilian jurisdictions. Any readers who are former CPB members, and who are interested in discussing their experience, please email us.
6 November 2023, Journal entry.
No. 23-0163/AF. U.S. v. Matthew P. Leipart. CCA 39711. On consideration of a motion by Movant K.C. to compel all counsel of record to comply with C.A.A.F. R. 39 (2023) by serving her counsel with a copy of any pleading or other paper, it is noted:
(1) C.A.A.F. R. 39(a) requires service of pleadings and other paper on "all counsel of record, including amicus curiae counsel";
(2) under C.A.A.F. R. 16(a), a counsel becomes a counsel of record by filing a notice of appearance or making another filing "in the representation of a party to an action before the Court";
(3) Movant is not a party to the action before the Court, as the term "party" is used in C.A.A.F. R. 8(b), because when this Court granted Appellant's petition for review under Article 67(a)(3), Uniform Code of Military Justice, 10 U.S.C. § 867(a)(3) (2018), the Court recognized only two parties: Appellant (Technical Sergeant Matthew P. Leipart) and Appellee (the United States);
(4) Movant's counsel therefore does not represent Movant as a party to an action before the Court and therefore cannot be a counsel of record;
(5) Movant has not filed a brief as amicus curiae under C.A.A.F. R. 26(a), and therefore Movant's counsel is not amicus curiae counsel; and
(6) Movant and her counsel are therefore not entitled to service under C.A.A.F. R. 39(a).
Accordingly, it is ordered that said motion is denied.
The Joint Service Committee on Military Justice (JSC) will have a remote attendance option for its public meeting about proposed changes to the Manual for Courts-Martial on Nov. 14, 2023.
Instructions for the remote option (via Zoom) are now posted on the JSC website. You must register to attend. A direct registration link is here.
Written comments may be submitted per the instructions on the
Thursday, November 2, 2023
Order Granting Petition for Review
No. 23-0224/AF. U.S. v. Charles S. Nestor. CCA 40250. On consideration of the petition for grant of review of the decisions of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:
WHETHER UNITED STATES v. PHILLIPS, 70 M.J. 161 (C.A.A.F. 2011) WAS WRONGLY DECIDED, AND UNDER A STARE DECISIS ANALYSIS, SHOULD BE OVERRULED. IF SO, SHOULD APPELLANT'S REMAINING CONVICTION BE SET ASIDE AND DISMISSED BECAUSE THE GOVERNMENT PROVIDED INSUFFICIENT EVIDENCE AS TO THE TERMINAL ELEMENT?
In Griffin, the Appellant agreed to a GP and that a Dishonorable Discharge was required to be adjudged. He challenged that on appeal.
This case was decided under the 2016 MCM. The court finds error in the required DD as part of the PTA under the old rules. However, the court finds there is no evidence of prejudice.
Appellant and the convening authority reached a pretrial agreement, and the offer portion required the military judge to sentence appellant to a dishonorable discharge. The military judge discussed this provision in detail with appellant at the guilty plea inquiry, and he ultimately indicated it was his "expressed desire" to receive a dishonorable discharge. The military judge sentenced him to that punishment, and confinement.
In Baylor, the court addressed post-trial delay and the failure of the MJ to make a "meaningful" inquiry into the PTA. Finding no harm, the court affirms the findings and sentence. As to the delay, the court set-aside the 307 days of confinement (already served by this time) and affirmed only the BCD.
In Kibler, a GP case with Art. 128b allegations, there are complications.
1. A specification is set aside.
Applied here, the military judge erred in failing to resolve the substantial conflict and inconsistencies between: (1) whether the Article 128b offense as amended in Specification 2 of Charge V alleged a violation of Article 128b(5) (suffocation) or Article 128b(1) (violent offense); (2) the fact that the amended allegation, asserting that appellant covered his wife's chest and neck with a pillow, failed to meet the legal definition of "suffocation" (which again requires a covering of the nose or mouth); and (3) the fact that the parties amended the specification to expressly delete any reference to the face, yet appellant contended that he suffocated his wife by placing the pillow over her face. Given these contradictions, appellant was not provident to Specification 2 of Charge V, and it must be set aside for legal insufficiency. See United States v. Kim, 83 M.J. 235, 238 (C.A.A.F. 2023) ("[B]ecause a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.") (citations omitted).
2. Now for something different.
Paragraph 5(e) of the Plea Agreement provides that the Convening Authority may withdraw from the plea agreement "if findings are set aside because my plea of guilty pursuant to the agreement was held improvident on appellate review."
Brown is the kick-off opinion for the new term. Chief Judge OHLSON announced the judgment of the Court, in which Judge SPARKS, Judge MAGGS, Judge HARDY, and Judge JOHNSON joined in part. Judge SPARKS filed a separate opinion concurring in part and dissenting in part, in which Judge JOHNSON joined. Judge HARDY filed a separate opinion concurring in part and dissenting in part, in which Judge MAGGS joined in part.
Sometimes a seemingly simple statute can be devilishly difficult to interpret. As reflected by the various opinions in this case, that certainly is true with Article 91(3), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 891(3) (2018), which prohibits disrespect towards a warrant, noncommissioned, or petty officer. Nonetheless, this case resolves two key points. First, a majority of this Court holds that an accused servicemember can be convicted under Article 91(3) even if his or her disrespectful conduct occurs outside the physical presence of the victim. Importantly, that means that disrespectful language or behavior towards a warrant, noncommissioned, or petty officer can be criminally actionable even when it is remotely conveyed using a digital device such as a smartphone and even when the disrespectful language or behavior is conveyed via social media. And second, a majority of this Court holds that under Article 91(3), servicemembers can only be held criminally liable if at the time they conveyed the disrespectful language or behavior the victim was then in the execution of his or her office. The reasons for these conclusions are explained below.
The opinion does not seem to change the law on disrespect to a senior enlisted person, rather it applies the statutory definitions to social media and other forms of digital communication.
Therefore, we hold that disrespectful language or behavior towards a warrant, noncommissioned, or petty officer can be criminally actionable even when it is remotely conveyed using a digital device and even when the disrespectful language or behavior is conveyed via social media
Parler is a case in which the court has set aside sexual assault convictions because of IAC.
The facts suggest that Parler had a solid mistake defense, much of which is captured in the CID interview and in a letter written by the Appellant. The defense however failed to seek admission of the evidence through a motion in limine.
In the interview, however, appellant also talked about his prior sexual experiences with the victim. Among other things, appellant described how in the past "it was kind of games," where the victim would say "no," he would stop and "she would just look at me," and then they would keep going again. Appellant also told the agent because of these past experiences, "I figured she was playing around," and she also did not mean "no" on this occasion. Appellant also described how teasing was part of the foreplay in their 4 or 5 prior sexual encounters. Finally, appellant said he held down the victim's wrist during oral sex because that was what they usually did, and in the past she had given him a "seductive no." None of this evidence (hereinafter referred to as appellant's "unadmitted statements") was before the military judge when he rendered his verdict.
Miller presents an important reminder that simple cases are not always simple.
UA cases are usually simple. You have official records showing a person is assigned to a unit, the person was absent from the unit, and they did not return to military control until a particular date. Whether the UA was just that, a UA, or a desertion, the offense is committed on the day of absence or formation of the intent to desert and is not a continuing offense.
Miller suggests that when an accused goes absent in 1978 and is not returned until 2022, after being arrested in Soddy Daisy, TN, people ought to be checking the documentation and the statute of limitations.
In 1978 the SoL was three years. In Miller, the charges were not preferred until 2022. Yep, people in Admin or Legal didn't do a preferred charge sheet at the 30 day mark when Miller was administratively considered a deserter and may not have done a DD 553.
Miller plead guilty. When asked if he understood the term to waive all waivable motions Miller said yes. When the DC was asked about any motions to be waived the reply was "no[ne]." Ooops. Because of this, no inquiry was made by the MJ about waiver of the obvious SoL defense.
Miller's case was presented on its merits.
NMCCA points out that it wasn't until the court specified the issue that any judge advocate in the process became aware of the SoL issue. And, of course points out that the Government arguments supporting waiver don't hold water if all the lawyers in the process weren't aware of the issue.
I'm assuming, without checking, that with the many years of dead time, Miller might still be processed for an OTH. Miller already has a HD for four years in the Marine Corps.
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
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