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Do you know what cyberflashing is? The British do and it has been a crime since January. Cyber-flashing, which can involve offenders sending people an unsolicited sexual image on social media, dating apps or by other electronic communication, became a crime in England and Wales on Jan. 31. It was part of the government's Online Safety Act. The Government's writ has been denied. Unless the Govt. appeals to CAAF, in camera review of the requested documents will go forward.
United States v. WilliamsUnited States v. Flores resolves how the CCAs are to assess segmented punishments and then the total punishment. Williams says the CCA doesn't have to explain how it did that because "Our superior Court’s precedents do not require this Court to explain its reasoning when assessing the reasonableness of a sentence" citing United States v. Winckelmann, 73 M.J. 11, 16 (C.A.A.F. 2013) (“The Court of Criminal Appeals did not detail its analysis in this case; nor was it obligated to do so.”). United States v. CollettiThe appellant challenged his conviction for wire fraud in violation of 18 U.S.C. § 1343 as legally and factually sufficient. NMCCA says no, and in the process takes issue with how AFCCA decided United States v. Martinez, No. ACM 39973, 2022 CCA LEXIS 212 (A.F. Ct. Crim. App. Apr. 6, 2022) aff’d on other grounds, 83 M.J. 439 (C.A.A.F. 2023). The AFCCA began its analysis in Martinez by noting that neither party could cite precedent for charging the conduct at issue as wire fraud, and that the case raised an issue of first impression. Given that the wire fraud statute was enacted back in 1952, the absence of any precedent should have alerted the AFCCA—and subsequently the Government in this case—that it was “proceeding at flank speed…off course in thick fog, with no one on the bridge, helm or engine order telegraph.” As recently as last term, the Supreme Court again cautioned lower courts against embracing “novel” interpretations of the federal wire fraud statute. See, e.g., Percoco v. United States, 143 S. Ct. 1130, 1136 (2023), the AFCCA began its analysis by correctly holding that the federal wire fraud statute is “limited in scope to the protection of property rights[.]” But are digital images [alone] property for purposes of that statute? The AFCCA thought so. AFCCA "adopted the holding of the Second Circuit “that a defining feature of most property is the right to control the asset.” And the victim in Martinez “suffered a loss of control of her private nude photos.” NMCCA points out that "Martinez was barely a year old when the Supreme Court issued its decision in Ciminelli v. United States, 143 S. Ct. 1121 (2023). In Ciminelli, the Court overruled this line of precedent and held that the right-to-control theory “cannot be squared with the text of the federal fraud statutes, which are ‘limited in scope to the protection of property rights.’” The Government, having shifted tack, NMCCA fires a broadside to their argument and brings down the mainmast, rigging and all. The court seems to be saying that a lie by itself is unanchored from the intent and meaning of the statute, that there must be something else to moor the facts to the ship, along the lines of having "schemed to deprive the intended victims of the fraud, the girls, the talent agency, and the photographer of property and money." Does NMCCA's conclusion (alongside potentially creating a circuit split) suggest that a specification under Clause 2 might have had more success? Charging Clause 2 in the alternative was not done here. "The conduct in this case is despicable and potentially criminal under the UCMJ[.]" If the acts are despicable, it doesn't seem the government would have difficulty clearing the very low sandbar of service-discrediting conduct. Indeed, this case heralds the arrival of the parade of horribles predicted in cases like Ciminelli and Cleveland. The Government’s “exclusive use” theory of criminal liability “makes a federal crime of an almost limitless variety of deceptive actions traditionally left to state contract and tort law—in flat contradiction with our caution that ‘absent a clear statement by Congress,’ courts should ‘not read the mail and wire fraud statutes to place under federal superintendence a vast array of conduct traditionally policed by the States.” United States v. FloresUnder the new sentencing rules, the CCA must assess the appropriateness of each segment of the sentence per specification and overall. Concurrening, CJ Ohlson makes a point that reaches back to charging decisions, e.g., bridge cases. However, this can be a hazardous legal path to tread when, as here, the CCAs are applying a new statutory provision. We have entered an era where there are many changes afoot in the military justice system. Mischief will result if this Court fails not only to provide crisp, clear guidance to the CCAs about the practical effects of those changes[.] CAAF does not say what happens when the CCA finds that each segment to confinement is appropriate, but the sentence overall is inappropriately severe (probably because it wasn't a QP). The answer may be complicated depending on whether the segments are to run concurrently or consecutively. "We find that each segment of the sentence is appropriate for the specification. However, we find the effective combined sentence inappropriately severe," check the decretal paragraph. In addition to reviewing the appropriateness of each segment, the CCAs must also continue to review the appropriateness of the entire sentence. Students for Fair Admissions, Inc. v. President and Fellows of Harvard College was a blockbuster decision that set major precedent for future cases covering the involvement of racial classification in higher education admissions. The Supreme Court found that Harvard and UNC’s admissions processes were unconstitutional, as they violated the court’s principle of strict scrutiny. Specifically, the compelling interests the universities used to justify their admissions programs lacked sufficiently focused and measurable objectives warranting the use of race, unavoidably employed race in a negative manner, involved racial stereotyping, and lacked meaningful endpoints. Note 4 of their opinion created a caveat. It left open the idea that the military may have further compelling interests in race-based admissions systems that were not considered in Harvard. Shortly after the Supreme Court’s decision in Harvard, Students for Fair Admissions sued both the U.S. Military and Naval Academies, asking the courts to issue preliminary injunctions based on the controlling Harvard decision. The courts subsequently denied the requests for preliminary injunctions, as Students for Fair Admissions could not satisfy their burden of showing the likelihood of success on the merits. The court’s reasoning is heavily ingrained in the careful establishment of a record in the present cases. Alex EckhardtClass of 2026, Villanova University Charles Widger School of Law United States v. HasanThis opinion is a reconsideration. The original decision has been removed from the website. This case is one of a few cases where the accused elected to represent himself. United States v. RamirezAppellant asks this Court to decide whether the military judge improperly denied his request to ask a question about racial bias during voir dire. For the reasons set forth below, we conclude that the military judge did not clearly abuse his discretion and affirm the judgment of the CCA. ACCA decision and briefs.
The accused is Hispanic and the alleged victim is “of Caucasian descent/appearance." Join NIMJ, CAAFlog, and friends, tomorrow at 3:00PM ET to discuss the Ironhawk case noted below.
Anonymous participation (and Q&A) is allowed. For info on joining a Zoom anonymously, see this site. *** Topic: CAAFlog Popup Discussion: The Ironhawk Case Time: Mar 6, 2024 03:00 PM Eastern Time (US and Canada) Join Zoom Meeting https://villanova.zoom.us/j/93576606999 Meeting ID: 935 7660 6999 --- One tap mobile +13126266799,,93576606999# US (Chicago) +16465588656,,93576606999# US (New York) --- More evidence that the Army's criminal law group at OTJAG is serving as a centralized "thought police" -- much like Soviet-era "political officers." See pg. 29 of this PDF. We are reminded of a FOIA request we once sent to OTJAG Criminal Law asking for any documents describing the purpose and functions of the office. The Army responded that no such records exist.
Email sent by SJA to OTJAG Criminal Law:
United States v. MasseyMassey has two issues of interest: (1) admission of a witness’s deposition after the MJ finds the witness unavailable, and (2) multiplicity. The MJA trial was held at Lakenheath, UK, on charges of wrongfully soliciting: the rape of a [two month old] child, the production of child pornography, and the distribution of child pornography. The events were communications over social media. The events came to light because the victim/mother contacted the appellant's fiancee/spouse, which according to the deposition led to this exchange. “Regarding the picture Appellant asked for on 24 July 2018, Ms. BM asked Ms. MN, “just to clarify[,] what did he mean by I still want a pick of your kid with his penis in your mouth[?]” Ms. MN replied, “he’s asked for stuff like that before.” Ms. BM asked, “Did you do it?” Ms. MN answered, “[n]ever” and added, “He wants to f[**]k his kids.” Ms. BM later informed Ms. MN that she had confronted Appellant and that “he confessed to it after about an hour of denial.” Interestingly, the victim/mother had told the police officer who interviewed her at her house that she only listened to—and did not actively participate in—Appellant’s fantasies of sexual conduct with children. She admitted in her deposition that this was not true, as she had participated in those fantasies with Appellant and had even initiated such conversations on occasion. Ms. MN said she had lied to the officer because she did not want to get in trouble. Ms. MN testified she never alerted law enforcement about Appellant’s requests, saying: “I didn’t know I was allowed to since he was overseas and he had never physically touched my child.” She conceded that she approached Ms. BM not because she believed she was being asked to commit a crime, but because she believed Ms. BM should know what Appellant was doing behind her back. The deposition became an issue because the victim/mother was located in California and didn't want to travel, which led to (redacted) [T]he Government contacted Ms. MN, who was living in California, in an effort to secure her appearance at trial. Ms. MN sent an email to trial counsel which read in its entirety: “I talked it over with my husband and we don’t think it will be a good fit for us, having me alway [sic] for so long. I would love to help any way I can going forward. Thank you for everything.” The Government attempted to persuade Ms. MN to change her mind, but Ms. MN persisted in refusing to travel to the United Kingdom for the trial, even though her expenses would have been paid for by the Government. She further frustrated Government efforts to secure her presence by refusing to provide the passport information needed to arrange her international travel. The convening authority then ordered the oral deposition at Travis Air Force Base, California; Appellant, his counsel, and his expert consultant in forensic psychology were present for the video-recorded proceeding. Although Ms. MN agreed to the deposition, she told the parties she still had no intention of participating in Appellant’s court a position she maintained through the Government’s last contact with her about the matter. At trial, the Government made a motion to admit Ms. MN’s deposition in lieu of her in-person testimony. The Defense objected and asked the military judge to abate the proceedings. Alternatively, the Defense asked that the “entirety of the Defense cross-examination” be admitted. The military judge granted the Government’s motion, finding Ms. MN to be unavailable within the meaning of Mil. R. Evid. 804(a). He based this conclusion on the fact that he had no authority to compel civilian witnesses to travel outside the United States and that Ms. MN had steadfastly refused to voluntarily travel. He also concluded the Government had made good faith efforts to obtain her in-person appearance. He further ruled that because the deposition was recorded and transcribed verbatim, Ms. MN’s prior testimony was “undoubtedly reliable and [met] the criteria contemplated in [Mil. R. Evid.] 804(b).” The military judge also noted that Appellant, his counsel, and expert were present, and that the Defense cross-examined Ms. MN “for over an hour on the full scope of relevant topics.” Apparently, there was no motion to change venue, and the Appellant argues the military judge abused his discretion in finding Ms. MN “unavailable” under the theory that Ms. MN was willing to participate live at the Appellant’s court-martial, just not travel to the United Kingdom. In finding no error, the court footnotes that "the discussion under R.C.M. 906(b)(11) indicates a change of the place of trial may be necessary “to obtain compulsory process over an essential witness.” We do not understand that statement to require a military judge to sua sponte order a change in venue, especially when the witness’s testimony has been otherwise preserved through a deposition. In the body of the opinion, The court disagrees because that would require courts-martial to relocate as needed to meet the wishes of recalcitrant witnesses. This would turn the concept of “unavailability” on its head, as the Manual for Courts-Martial plainly contemplates witnesses coming to courts-martial—and not the other way around—by virtue of R.C.M. 703 which explains in detail how to procure the presence of witnesses. Note, the deposition was video-recorded so the MJ could see and hear the witness testify, but was not able to ask questions.
CAAF may take this case to examine whether the criticality of a witness should be a significant factor in moving a trial and may construe the defense arguments at trial as the functional equivalent of asking for a change of venue. The defense had asked for the drastic remedy of a mistrial, and a lesser remedy would be a change of venue? This brings to mind a British Army court-martial some of us witnessed in the courtroom at Andrews AFB, MD some years ago. The trial was "bifurcated" in that proceedings were held at Buford, UK, moved to Andrews to take the testimony of the sexual assault victim, and then moved back to Buford to do the remainder of the case. It was a members case and they traveled. He was found not guilty. Signs of an expeditionary court-martial system. I was most amused by a picture of The Queen hanging behind the judge, in his wig and robe; bewigged civilian counsel, and watching people entering or leaving the courtroom who were required to bow or salute if in uniform. The Brigadier President of the panel, as is allowed publicly admonished the officer thus: |
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
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