United States v. Ironhawk

United States v. K. Davis

United States v. Malone

[I]t does not serve the ends of justice to allow appellant to deliberately decline to make a multiplicity challenge, even when directly asked by the military judge i f he had any such motions, at a time when the convening authority could still withdraw from the agreement; and instead wait to raise such a challenge for the first time on appeal after he has reaped all of the benefits and the convening authority can no longer withdraw. 
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This is especially true given that appellant is now contending that the domestic violence specifications at issue were so facially defective as to constitute plain error.

This is the proverbial "paper" urinalysis case, but without the paper.

the government asked its expert, "[W]hat is GC-MS?" The expert answered, "Gas chromatography mass spectrometry....[i]t is the confirmation, the one that looks for the fingerprint of the drug." Beyond this metaphor the expert offered virtually no information about the test itself, whether it is regarded as scientifically sound, and whether it was conducted in accordance with prescribed procedures in this case.2 The expert did testify the metabolite from the sample exceeded the cutoff level and did not occur naturally in the body, but there was no explanation of the cutoff level's relevance, or any other evidence indicating test controls for the possibility of innocent ingestion.

The government's case also omitted the test results themselves. Instead, the prosecution asked only for the expert's "opinion based off of your review of the results." The expert responded, "It was positive for BZE at 295 nanograms per milliliter." We are unfamiliar with any authority supporting the government's contention that an expert opinion alone is sufficient to prove wrongful drug use.

United States v. Pettry

Sentenced on 2 August 2022, entry of judgment on 27 Sep 2022. The trial counsel completed the precertification review on 3 Apr 2023. Military judge's authentication on 11 Apr 2023. The government then forwarded the record to the court without any explanation for the post-trial processing delay. The record was docketed at this court on 28 April 2023, 269 days after adjournment and 213 days after the entry of judgment. The government obtained and requested to attach a post-trial delay memo dated 24 October 2023, but that motion was denied.

In determining whether relief is appropriate, this court considers the totality of the circumstances "balancing the interplay between factors such as chronology, complexity, and unavailability, as well as the unit's memorialized justifications for any delay." See United States v. Winfield, 83 M.J. 662, 666 (Army Ct. Crim. App. 2023).
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In Winfield, this Court reinforced the requirement to provide an explanation, stating "we will scrutinize even more closely the unit-level explanations for post- trial processing delays." 83 M.J. at 665.

After reviewing the entire record and considering the totality of the circumstances, similar to our decision in United States v. Bionaz, the unexplained 188 days between entry of judgment and the trial counsel precertification review was excessive [a]ccordingly, we find that 15-day reduction to the confinement sentence is appropriate.

United States v. McCullough

A military judge, sitting as a special court-martial, convicted appellant, in accordance with his pleas, of one specification of failing to go to his appointed place of duty, five specifications of willfully disobeying a superior commissioned officer, two specifications of disobeying a noncommissioned officer (NCO), one specification of disrespect toward a noncommissioned officer, and one specification of drunken physical control of a vehicle. He sentenced the appellant to a bad-conduct discharge and 99 days of confinement.

Specified issue

In light of United States v. Scheurer, 62 M.J. 100, 110 (C.A.A.F. 2005), we also specified for briefing whether the military judge erred by accepting the appellant's plea of guilty to the drunken physical control of a vehicle. The specified issue also warrants discussion and relief.

Appellant argues the military judge erred in accepting the guilty plea because his providence inquiry was inconsistent with the stipulation of fact (more precisely, the part of that document that contained a stipulation of expected testimony from two NCOs) and because appellant admitted to facts that were legally insufficient to establish physical control. The government argues the providence inquiry and stipulation of fact are not inconsistent because appellant's assertion he was in the passenger seat and the NCOs' expected testimony that he was in the driver's seat can both be true, as he was in the vehicle multiple times.

For a guilty plea to survive appeal, an appellant must personally admit to facts establishing criminal culpability; appellant did not do this. Instead, he admitted only that he sat in his vehicle's passenger seat while drunk. A scenario that would be legally insufficient to establish guilt in a contested case is similarly insufficient in a guilty plea. The stipulation did not cure this problem, for appellant only agreed others would testify he was in the driver's seat; he did not agree to this as a matter of fact. Taken together, appellant's providence inquiry and stipulation painted a scenario that was, at the very least, inconsistent on the question of guilt. For these reasons, the military judge erred in accepting the plea, resulting in material prejudice to appellant. United States v. Moratalla, 82 M.J. 1, 4 (C.A.A.F. 2021).

Military Rule of Evidence 103 states: "A party may claim error in a ruling to admit or exclude evidence only if the error materially prejudices a substantial right of the party and... if the ruling excludes evidence, a party informs the military judge of its substance by an offer of proof unless the substance was apparent from the context." (emphasis added). While we know the topic of the disputed testimony, we do not know its substance; and it is not otherwise apparent.

Assuming arguendo the error was preserved, the military judge incorrectly interpreted R.C.M. 1001(b)(5) as limiting a defense witness's testimony during sentencing; the rule applies to the prosecution but not the defense.

Despite the error - and even if we were to find it plain and obvious, but unpreserved - we conclude it did not prejudice appellant, for we are confident its exclusion did not substantially influence the adjudged sentence. The military judge sentenced appellant to a total of 99 days of total confinement, but each of the segmented sentences were below the plea agreement's maximum. Additionally, while the military judge sentenced appellant to a bad conduct discharge as required by the plea agreement, he wrote a detailed recommendation that the convening authority suspend that punishment.

Regardless of this conclusion, I commend the trial judge for taking the time to provide a recommendation to the convening authority, and particularly for providing supporting justifications.

United States v. Abdullah

United States v. Johnson

Cheers, Phil Cave

United States v. Connor

Appellant now claims the military judge erred in allowing the victim to ask for a specific sentence in his unsworn statement. For the reasons set forth, while we agree with the appellant that the military judge erred in admitting such evidence, the appellant is not entitled to any relief because the error was harmless."

Rule for Courts-Marital [R.C.M.] 1001(c)(3) states that a victim impact statement, either sworn or unsworn, "may not include a recommendation of a specific sentence." The Discussion following R.C.M. 1001(c)(5)(B) notes that "[u]pon objection by either party or sua sponte, a military judge may stop or interrupt a victim's statement that includes materials outside the scope of R.C.M. 1001(c)(3). See also United States v. Ohrt, 28 M.J. 301, 305 (C.M.A. 1989) ("The question of appropriateness of punishment is one which must be decided by the court-martial; it cannot be usurped by a witness. Thus, for the same reasons that we do not permit an opinion of guilt or innocence, or of 'truthfulness' or 'untruthfulness' of witnesses, we do not allow opinions as to appropriate sentences") (citations omitted). The Court of Military Appeals in Ohrt also criticized the use of "euphemisms" that were simply other ways to say "[g]ive the accused a punitive discharge." Id.

United States v. Buhl, __ M.J. ___ (Army Ct. Crim. App. 2023)

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.
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[A]ppellant has fallen far short of showing prejudice. He writes he "voluntarily acquiesced" to the discharge provision, but he did more than that. Appellant and his counsel specifically included the term with an offer to plead guilty and quantum dated 22 April 2022. The convening authority accepted both. After this arm's length transaction, appellant discussed and affirmed the term with the military judge, indicating he wanted a dishonorable discharge. Not surprisingly, he received the bargained-for sentence. Based on our common sense and experience as practitioners, we are confident the pretrial agreement's discharge provision worked to his favor by helping induce the convening authority to accept the proposed confinement limitation. We are also confident, based on our review of the record and experiences with similar cases, the military judge would have included a dishonorable discharge in the adjudged sentence even without the agreement's mandatory discharge provision.

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).

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."
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Applied here, given our finding that appellant was improvident of Specification 2 of Charge V, the Convening Authority may now elect to withdraw from the Plea Agreement and proceed to trial on all of the specifications and charges to which appellant pled guilty. On the other hand, given that we have exercised our discretion to dismiss Charge III and its specification and Charge IV and its specification with prejudice, even if the Convening Authority withdraws from the Plea Agreement, the government still is precluded from moving forward on those two charges and specifications.
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To reiterate, other than setting aside Specification 2 of Charge V, at this point we are not making any ruling with respect to the findings of guilt pertaining to any of the remaining charges and specifications to which appellant pled guilty. Indeed, we will not take any further action on the remaining findings in this case until after we receive the answer from the Chief Trial Judge as to whether or not the Convening Authority for the Seventh Army Training Command wishes to withdraw from the Plea Agreement. Likewise, given the very limited scope of our remand, the Convening Authority for the Seventh Army Training Command, or whichever convening authority is directed to provide support for this remand, will not have the authority or jurisdiction to take any further action on any of the remaining charges and specifications in this case. See United States v. Carter, 76 M.J. 293, 295-96 (C.A.A.F. 2017) ("But even when acting on remand, a convening authority may still only take action 'that conforms to the limitations and conditions prescribed by the remand.") citing United States v. Montesinos, 28 M.J. 38, 42 (C.M.A. 1989). See also Article 66(O(3), UCMJ (remand hearings shall be "subject to such limitations as the Court may direct and under such regulations as the president may prescribe.")

In sum, if in response to our Order the Convening Authority for the Seventh Army Training Command indicates that he or she is electing to withdraw from the Plea Agreement, we will issue a ruling providing that Convening Authority, or any other convening authority, with the jurisdiction to proceed with a rehearing on all of the specifications and charges to which appellant pled guilty, including Specification 2 of Charge V. On the other hand, if the Convening Authority for the Seventh Army Training Command elects not to withdraw from the Plea Agreement, this Court will issue a further ruling addressing the remaining specifications and sentence.

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. 

Mr. DC never asked about these prior instances during cross examination of the alleged victim, or the special agent who conducted the interview. While the defense certainly should have known about these statements, Mr. DC made no attempt to elicit testimony about them on cross, even after discussing the potential of Mil. R. Evid. 412 evidence in an R.C.M. 802 session.

In fact, when certain Mr. DC never asked about these prior instances during cross examination of the alleged victim, or the special agent who conducted the interview. While the defense certainly should have known about these statements, Mr. DC made no attempt to elicit testimony about them on cross, even after discussing the potential of Mil. R. Evid. 412 evidence in an R.C.M. 802 session. Mr. DC doubled down on this "strategy" by claiming he was only speaking to prior instances on the same day as the alleged assault.
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Applied here, appellant's unadmitted statements that his past sexual encounters with the victim were "kind of games" where she would tell him "no" and then question why he stopped, are clearly relevant, material, and favorable to the mistake of fact defense asserted at trial. This is especially true given appellant's letter describing how, after he found the victim smiling in the closet, he "figured now that we were playing - - now we were playing around and [I] just followed along." See United States v. Roberts, 69 M.J. 23, 27 (C.A.A.F. 2010) (holding that there is a "low threshold for relevant evidence" under Mil. R. Evid. 412); United States v. Yepez, ARMY 20210236, 2023 CCA LEXIS 12 at *6 (Army Ct. Crim. App. 11 Jan. 2023) (mem. op.) (finding military judge erred in relying on Mil. R. Evid. 412 to exclude evidence making it more likely for a fact finder to conclude appellanthonestly and reasonably believed the victim consented). 

Having determined that appellant's unadmitted statements were likely admissible under Mil. R. Evid. 412(b )(2) and (b )(3) and constitute "remaining portion" of appellant's admissions to the agent that were introduced against appellant, we turn to counsels' purported reasoning for not seeking their admission either before or during trial. See Mil. R. Evid. 304(h). First, to the extent counselclaimed appellant would not have made a good witness at trial, this purported justification ignores the fact that, because appellant made the unadmitted statements in his already recorded interview, their admissibility was in no way dependent on his testifying at trial, or even in a Mil. R. Evid. 412 hearing.