United States v. LoveLove 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.
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United States v. ThompsonThis 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. United States v. JonesJones 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)[1] 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." [1] 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.
The en banc published opinion in United States v. Strong, 5-4, deals with digital media and when it is being seized or is seized when chargin a violation of UCMJ art. 131e. CAAF, here we come? The “requirements” in U.S.C.A.A.F. Rule 21(b)(5)(A), (D) seem to be satisfied and the uniqueness of the charge and facts, seem grant-worthy. Read on. Appellant was convicted of negligent homicide and preventing the authorized seizure of digital evidence, for which the sentence was three years, RiR, and a BCD. Army CID executed a search authorization for Appellant's iPhone. Having physical possession, the agent tried to set the phone to airplane mode but couldn't make that happen. The agent then put the phone in a Faraday bag. Oh no! The manufacturer had mislabelled the bag and electronic signals could get through to the phone. This error allowed the Appellant to remotely factory reset the phone, destroyng the data sometime after CID had physical possession but before they made the DFE copy. CID figured out it was Appellant who had done the reset by DFE'ing other electronic devices. 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. Finding the statute and MCM unhelpful the court found a different but analogous case. 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)). The court recognizes it is dealing with "evolving technology and the ethereal nature of digital evidence." It seems that a completed seizure of digital evidence requires the agents to have (1) completely prevented any remote access, or (2) made the DFE copy. The digits being the evidence the phone merely being the briefcase. The bright line is not when the agents have physical possession of the container which Appellant had argued, but physical possession of the digital media.
*Note to JSC, the court cites 18 U.S.C. § 2232(a) as the corollary federal statute and implies the facts here would not have presented a challenge under the elements of that statute. Commentary on United States v. Tate. As his sentence did not include death, a punitive discharge, or confinement for two or more years, the accused was not entitled to automatic review of his convictions by the Army Court of Criminal Appeals (ACCA). See Article 66(b)(3), UCMJ. A reserve attorney assigned to the Army Trial Judiciary completed the Article 65 review, “found no irregularities with appellant’s court-martial and provided appellant with no relief.” United States v. Tate, ARMY 20200590 at 3 (A. Ct. Crim. App. Sep. 9, 2022). Thereafter, Appellant timely applied for relief under Article 69(a), UCMJ, which provides: “Upon application by the accused and subject to subsections (b), (c), and (d), the Judge Advocate General may modify or set aside, in whole or in part, the findings and sentence in a court-martial that is not reviewed under section 866 of this title (article 66).” (Emphasis added) The Judge Advocate General (TJAG) delegated his Article 69 authority to deny relief “to attorneys assigned to OTJAG-CLD but withheld authority to grant relief to his personal level.” Tate, at 4. An attorney in OTJAG-CLD reviewed Appellant’s case and denied relief. Appellant sought relief at ACCA, alleging multiple errors, including that the evidence was legally insufficient to support convictions as to two charges. ACCA granted that issue and specified an additional issue: whether it had jurisdiction to review the case when the Judge Advocate General of the Army had “not taken an action outlined in Article 69(c).” Tate, Order (Feb. 10, 2022). Although Appellant’s brief will not download from ACCA’s website, it is clear from the Government’s brief of March 15, 2022, the parties misunderstood the concern that resulted in ACCA specifying the issue. The Government argued that, regardless of the denial of Article 69(a) relief, as ACCA’s jurisdiction was not dependent on the outcome of the Article 69 review, the court had jurisdiction to consider Appellant’s appeal. It cited and appended two opinions—one Navy, one Air Force—in which the relevant CCA had considered an appellant’s case, although the relevant TJAG had personally denied relief under Article 69(c), UCMJ. ACCA issued a notice of a hearing in the case to be held on July 26, 2022. Tate, Notice of Hearing (June 6, 2022). Apparently recognizing that the parties misunderstood the specified issue, ACCA issued an amended notice of hearing in which it ordered the parties to “be prepared to address the following question: The 18 November 2021 ‘Action’ is signed by Lieutenant Colonel JR for The Judge Advocate General (TJAG). What is the legal authority for TJAG to delegate the authority to take action as outlined in Article 69(c), UCMJ, to another judge advocate?” Tate, Amended Notice of Hearing (July 21, 2022). After the hearing, ACCA determined that, unlike Article 65, Article 69(c) did not allow TJAGs to delegate the authority to grant or deny relief. As the Army TJAG had not personally acted in Appellant’s case, as required by Article 69(c), ACCA held it was without jurisdiction to hear the appeal. We expect that ACCA’s decision in this case will be sufficient to induce the Army TJAG to change policy and personally decide whether relief is appropriate in applications for relief under Article 69, UCMJ. If not, an applicant could apply to the CCA for a writ of mandamus, asking it to order the JAG to take action on the case as required by Article 69(c), UCMJ. Although writs have had a troubled history in the military, recently military appellate courts have looked upon them more favorably. The All Writs Act grants the power to “all courts established by Act of Congress [to] issue all writs necessary or appropriate in aid of their respective jurisdiction and agreeable to the usages and principles of law.’’ 28 U.S.C. § 1651(a). The CCAs are such courts. Clinton v. Goldsmith, 526 U.S. 529, 534–35 (1999). The “All Writs Act requires two determinations: (1) whether the requested writ is ‘‘in aid of’’ the court’s jurisdiction; and (2) whether the requested writ is ‘‘necessary or appropriate.’’ United States v. Brown, 81 M.J. 1, 3 (C.A.A.F. 2021) (citation omitted). Whether the requested writ is “in aid of” a court’s jurisdiction is determined by the scope of the court’s jurisdiction and whether the requested writ implicates the court’s subject matter jurisdiction over the case. Id. The CCAs are courts of limited jurisdiction—limited to the powers specifically granted them by statute. The authority to grant writs is not limited to cases in which jurisdiction has already been acquired. “Potential jurisdiction exists as long as some pathway to the lower court’s statutory jurisdiction remains.’’ Id. at 5. Once TJAG acts, whether to deny or grant some relief, the CCA has statutory jurisdiction under Article 66(b)(1)(D) to grant discretionary review of an appellant’s case. To show that a writ of mandamus is necessary or appropriate, Appellant must establish three things: “(1) there is no other adequate means to attain relief; (2) the right to issuance of the writ is clear and indisputable; and (3) the issuance of the writ is appropriate under the circumstances.” Hasan v. Gross, 71 M.J. 416, 418 (C.A.A.F. 2012). In cases such as Appellant’s, in which the Government did not file an Article 62 appeal and the approved sentence to confinement did not exceed six months, the only avenue for an appellant to obtain review by a CCA is through TJAG: by referral from TJAG or by the TJAG acting on an Article 69(a) application. Article 66(b)(1). As ACCA in Tate correctly held, without TJAG personally acting, as required by Article 69, ACCA is without jurisdiction to hear the appeal. Therefore, without the issuance of a writ of mandamus, there is no other adequate means to attain relief. The right to the issuance of the writ in such cases is is clear and indisputable: TJAG failed to take action personally on Appellant’s case as required by Article 69, UCMJ. Finally, under all the circumstances, issuance of the writ would be appropriate in such cases. NIMJHernandez is ACCA' s refresher on challenges to a member, especially when it involves implied bias. He gets a new trial because the MJ declined to excuse a panel member who “expressed a strongly held belief that consent to sexual intercourse required verbal consent.” (The member's wife was a SARC which was part of the basis for challenge.) Two prospective members held the same opinion, but one was peremptorily challenged by the defense. (Keep in mind that a peremptory challenge waives the issue, and failure to peremptorily challenge, if there is only one member affected, waives the issue.) Sergeant First Class@expressed a strongly held belief that consent to sexual intercourse must be expressed verbally. When asked by the defense counsel, "[d]o you think consent to sexual intercourse has to be verbal?" SFC responded, "[y]es." Defense counsel then quoted the definition of consent that the military judge would later use in instructions. and then asked: "[s]o if you saw the words 'consent is a freely given agreement,'you would think that agreement has to be a verbal agreement?" SFC responded with: "(i]t has to be verbal without intoxication." In denying the challenge the MJ mentioned the liberal grant mandate but found the standard for either an actual or implied bias was not met.
The ACCA focuses on the implied bias issue and notes that In Harris, the appellant pled guilty to a larceny and a robbery and was sentenced to sixteen months, RiR, and a BCD. The issue, a common one, is whether the MJ should have recused. Appellant was initially charged with, among other things, robbing another Soldier of $55,000. He negotiated a plea agreement, which included his promise to request trial by military judge alone. Appellant tried to plead guilty in accordance with the agreement, but he was not provident to all aspects of the robbery charge. The convening authority withdrew from the agreement, and the military judge said of future proceedings: The Appellant got himself a new deal and appeared before the same judge for the GP. The MJ said that he'd still be the judge and the defense challenged for implied bias based on the prior attempted guilty plea and associated providence inquiry. The MJ later asked the Appellant specifically if he was voluntarily proceeding MJA and with him still the MJ--to which the Appellant said yes. The court looks at three points to affirm.
1. An MJ has the discretion and often uses it to stay on a MJA case when she has previously rejected the providence of a guilty plea. "United States v. Winter, 35 M.J. 93 (C.M.A. 1992), is instructive on this point, for our superior court concluded that a military judge did not err in presiding over a contested bench trial after rejecting an improvident plea in the case." 2. There is no evidence of record that the forum choice was involuntary. "[H]is decision to enter a plea agreement, or his decision to remain bound by the plea agreement. These decisions are reserved to an accused at a court-martial; they cannot be outsourced to defense counsel. Florida v. Nixon, 543 U.S. 175, 187 (2004). The military judge specifically asked appellant whether his forum choice was voluntary, and he responded that it was. The military judge also asked appellant, Did you enter the agreement of your own free will?" Appellant responded, "Yes, Your Honor." Based on the circumstances, we do not doubt the voluntariness of any of appellant's decisions." While not stated, the sentence seems reasonable for robbing another Soldier of $55,000.00, so arguably the MJ was not affected by the prior failed GP. United States v. Cooper becomes something of a Pyrrhic victory. The Appellant pled guilty to violating a general regulation and a sexual assault. He was sentenced, on 28 October 2020, to one year, RiR, and a DD.
On 7 November 2020, the Appellant requested speedy appellate review. On 2 December 2020, the MJ entered the judgement. On 14 May 2021, the TC completed a precertification review of the ROT--a total of only 453 pages in a guilty plea case. On 30 May 2021 the MJ authenticated the ROT. On 28 June 2021, the ROT was received at ACCA--242 days (a little more than eight months) after the sentence was announced. There were no explanations for any of the delays. Specifically, "There is no explanation in the record, or appellee's brief, as to why it took 163 days after the entry of judgment for trial counsel to complete his review, which ultimately led to a 182-day delay between the entry of judgment and the final certification." On 7 July 2022, ACCA affirmed the findings but found unreasonable post-trial delay. The court then affirmed only 11 months and 15 days confinement. Assuming the Appellant received the regular five days a month good time credit, his MRD would be at ten months (he might have received several extra days for work abatement or such). Thus, the "unexplained" delays post-trial created the cognizable delay but also made the resulting credit Pyrrhic. In Heng, the Appellant pled guilty to two domestice violence assaults and abuse of an animal. He was sentenced to "14" months, RiR, and a BCD.
At trial, the defense, accused, trial counsel, and MJ agreed the max per assault was two years. On appeal the argument is that the max is six months. The President had not issued the maximum punishments for the assault offenses so all relied on R.C.M. 1003(c)(3)(B) to find the closely related offense of assault on a spouse. Delving into the choronology of the statutory changes and Congressional intent, the court concludes that the parties at trial were right. |
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
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