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."
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.
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."
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.
In re United States v. Johnson, we concluded that the charging decision and the theory of guilt proffered at trial was not a Government bait-and-switch. But at the same time, it is reasonable--if not required--for trial defense counsel to litigate an alcohol-involved case as if it were charged under Article 120(b)(3)(A). Is not the prosecution's evidence the same for either charge and the defenses similar?
So we come to United States v. Kornickey where the charge was under Article 120(b)(2)(A), "sexual assault by bodily harm without consent." And the defense rightly proceeded as if litigating an Article 120(b)(3)(A) charge. Clearly, alcohol was involved, and the evidence gave rise to concerns about the effect of alcohol on the victim's conduct and memory. The defense made many unsuccessful efforts throughout the trial to get expert assistance and witnesses. However, the military judge erred in quite a few ways, which resulted in the conviction being set aside.
Appellant presented evidence at the motion hearing that an expert consultant could, from a review of the case, calculate an approximate BAC for victim which would indicate she was at a level of intoxication consistent with experiencing some form of blackout and the negative impact that could have on the accuracy of victim's memory perception. It was an undisputed fact at the motion hearing, conceded by the government, that victim told CID SAs that she "blacked out" in her interview conducted approximately ten months after the alleged sexual assault.
The defense also moved to compel expert testimony. Yet the MJ ultimately "ruled the requested expert testimony was "irrelevant" in light of the victim's manifestation of non-consent."
In response, the government argued: (1) the charged offense of sexual assault by bodily harm without consent occurred when victim told appellant to stop and he did not, (2) victim remembered everything correctly, and (3) any expert assistance or testimony regarding victim's intoxication was not relevant as the government's charging theory was not based on her incapacitation and the alleged offense occurred while she was awake. During the same argument, the government, however, conceded to the military judge that victim's act of "blacking out [was] relevant .... [and t]he factfinder can hear all of that, but we ask that you not elevate this to an inaccessible scientific level without any nexus to a charged offense."
How would you decide so far?
United State v. Baba should be read because of its treatment of Army Regulation 600-25. The appellant was alleged to have possessed controlled prescription medications past their expiry date. Dissecting the regulation, the court finds factual insufficiency in showing the wrongfulness of possession in that circumstance. The court affirmed his convictions for stealing drugs from the pharmacy.
NOTE: The CAAF Daily Journal for 6 July shows a petition for review filed.
United States v. Tate is a 'verbatim record' case.
20 September 2018, the appellant was sentenced to 22 months, RiR to E-3, and a BCD. (Appellant's brief.) The two issues on appeal were the MJ allowing the government to present its sentencing case a second time and whether the CA improperly approved the sentence without a "substantially verbatim transcript."
On 25 September 2020 a 2-1 majority of the ACCA set-aside the sentence but after a reconsideration en banc, in a 5-2 opinion (written by the dissenting judge in the first decision), affirmed the findings and sentence .
On 23 May 2022, the CAAF agreed with the orinial panel and set-aside the sentence and ordered a rehearing on sentence. 82 M.J. 445 (C.A.A.F. 2022).
A rehearing was held and the MJ sentenced the Appellant to the same 22 months, with one month credit for excessive post-trial delay.
An empty remedy for the Appellant. He likely would have been released at his MRD in plus or minus 18.3 months. However, he still may have remained on MSRP for the full 22 months and not received any benefit from the one month credit.
In accordance with DoDI 1325.07, “Administration of Military Correctional Facilities and Clemency and Parole Authority:” If you are not approved for or you have not accepted parole, you may be reviewed by your Military Department Clemency and Parole Board (C&PB) for release at your minimum release date under MSR. MSR is similar to parole. A prisoner released on MSR through good conduct time (GCT) and abatement credits is subject to supervision by a U.S. probation officer up to the full-term of the sentence imposed.
Love is a reminder that Grosty issues can sometimes get attention, although not always much love.
Appellant asserts three errors before this court, none of which merits discussion or relief. Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), appellant asserts nine errors before this court, one of which merits discussion but ultimately no relief.
The court notes the error is a repeat from the prior iteration of the rule.
This court addressed a nearly identical issue under a prior version of the rule in United States v. Cornelison, 78 M.J. 739 (Army Ct. Crim. App. 2019). Appellant contends, in light of Cornelison, it was error for the military judge to allow the government to conduct direct examination of the victim's unsworn statement under R.C.M. l00l(c). While we agree that it was error, the error was forfeited when appellant did not object. See Cornelison, 78 M.J. at 742 n.2.
For various reasons the Cornelison court found no prejudice partly because the prosecution argued for 30 years confinement but the members adjudged 18 months.
This case presents a government appeal of a military judge's ruling to exclude all testimony of a CID agent based on a Kastigar problem. (NB) This case might have turned out differently had the CID recorded the Appellant’s earlier statements.
1. Appellant was interrogated by CID for his involvement in the murder of two soldiers—but the interrogation was not recorded.
2. Appellant was then reinterviewed under a grant of immunity. This interrogation happened over two days for a total of about eight to 10 hours.
3. Appellant’s subsequent guilty plea as an aider or abettor was set aside and a rehearing commenced.
4. In a pretrial interview with the new prosecutor’s the CID agent, according to the MJ’s finding of fact, disclosed “immunized information” to them ""after the prosecution team warned him to not reveal any immunized information to them."?"
5. Trial litigation ensued from which the military judge determined, in part, that
Not only [has SA AA's] anticipated testimony been so colored, so has his subjective belief that the non-immunized and non-'minimized' statements are the more accurate statements of the accused. At some immeasurable level, his belief stands to impact the factfinder indirectly in the form of his credibility on the stand. Stated another way, SA [AA] presents as a confident witness, resolute that his testimony accurately reflects his memory. Yet, the Government has not disproven that his confident resoluteness is in any way the product of the immunized statements.
Perhaps in the background people were wondering how the CID agent could have such a great (confident) memory of two lengthy interrogations at least four years earlier. Had the interrogation and the immunized interview been recorded, all the CID agent would have been needed for was to lay a foundation for introduction of the two interviews.
For many years investigators had resisted recording interrogations out of fear there would be more suppression litigation. Experience has shown the value of recording interrogations and interviews. People are still confessing, it's harder to challenge a recorded interview, and problems such as happened in Thompson are potentially avoided.
Jones is a reminder, primarily to military judges, that when an accused "raises" a potential defense during his sentencing case, it's a good idea to reopen the providence inquiry.
Jones pled guilty to conspiracy to sell and selling government property and use of marijuana.
The stipulation of fact and statements to the military judge in providency denied any defenses. Although there was a statement that "he was feeling "really depressed" and smoked the marijuana because he thought it would make him feel better."
During sentencing a defense witness said he thought Jones was "depressed" at the time of the offenses and during an unsworn statement Jones said he was "very depressed," had "very suicidal thoughts," and this lead him to smoke marijuana. He also referenced receiving counseling and a desire to continuance counseling. The court finds the questions from the DC to Appellant leading to the statements about mental health to be "inartful." While the facts here don't present a defense, an artful suggestion would be that his mental state can be "evidence" of extenuation and mitigation, and his statements about getting help is "evidence" of rehabilitative potential. (The statements were from the unsworn. Was there evidence through records of any screening and counseling which could support the unsworn?)
The military judge did not reopen providency.
On appeal, the court found forfeiture of the issue and proceeded to a plain error analysis of an improvident plea.
The court found "obvious error" in not following R.C.M. 912(h)(2). (Trial counsel take note. While it's the duty of the military judge to resolve inconsistencies in the plea, it may be a really good idea for the prosecution to ask the MJ to do that when a potential inconsistency arises.) But there was no prejudice and
Without a substantial question concerning the plea, we find an R.C.M. 706 inquiry unnecessary. This finding is buttressed by appellant's declination to raise the issue on appeal. This issue could have been resolved quickly by reopening the providence inquiry, and so we reiterate the requirement to resolve inconsistencies during a guilty plea remains both proper procedure and best practice.
1. If a victim testifies on sentencing--the rules of evidence apply the same as for any other witness. Article 6b does not waive the rules of evidence when a victim testifies in sentencing. (Note, the victim gave both sworn and unsworn statements.) Failure to follow the rules (even without defense, or judge, objection) gets the defense and government and court to agree there was error and a new sentencing hearing.
2. It is NEVER EVER a good idea for an accused (or one of his witness's) to impeach the verdict. Long gone are the days when we could legally seek reconsideration of the findings even through sentencing.
Although an accused is provided a wide berth in the content of his unsworn statement, there are certain limits in what matters he may raise before the sentencing authority. United States v. Grill, 48 M.J. 131 (C.A.A.F. 1998). Specifically, the Court of Appeals for the Armed Forces has recognized that an accused is generally prohibited from impeaching the findings of the factfinder.
United States v. Porter, No. ARMY 20110470, 2013 CCA LEXIS 946, at *8 (A. Ct. Crim. App. Oct. 31, 2013).
Note, Porter arose from TC arguing that the accused had failed to impeach the verdict, "Appellant now complains that trial counsel's repeated comments during sentencing argument that appellant never denied the assault during his unsworn statement was improper argument. We agree."
 See, e.g., United States v. Westcott, ACM 39936, 2022 CCA LEXIS 156 (A. F. Ct. Crim. App. Mar. 17, 2022) (unpub.) rev. denied 82 M.J. 438 (C.A.A.F. 2022).
United States v. Alsobrooks. The court finds the MJ erred in
United States v. Gloverstukes. An Article 62 appeal. The military judge had dismissed two allegations of assault because they failed to state an offense under Article 128b (DV). They
did not expressly allege that appellant committed a "violent offense" against his intimate partner, they failed to state an offense. The specifications alleged:
ACCA finds the MJ erred. See United States v. Heng, No. ARMY 20210404, 2022 CCA LEXIS 377 (A. Ct. Crim. App. Jun. 24, 2022) (unpub.) for a discussion of the maximum sentence for 128b v. 128.
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