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.
. . . 
[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."
. . . 
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.
. . . 
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.
. . .
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.

United States v. Jarlego

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.

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 [i]nvolvement of government officers in the production of testimony with an eye toward trial presents unique potential for prosecutorial abuse") (citing Crawford, 541 U.S. at 56 n.7).)

Appellee argued before us the birth verification was filed in 2007 near the time of birth, and the document at trial was simply a copy of it. This was plainly incorrect and, not surprisingly, no witness so testified. Fundamentally, the government now asks us to find that a certifying affidavit proved a birth verification admissible under Mil. R. Evid. 803(9), where the underlying record it purportedly verified was inexplicably absent from trial. The Constitution and Mil. R. Evid. 803(9) require otherwise, though, lest a trial devolve into an exercise in multi-layered ex parte document gathering.

United States v. Strong

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
trying to take back her phone, such that the Agent finally had to tell her "at ease, Sergeant." The Agent also described how that was the only time in her career that she had to give such an admonishment to the subiect o f a seizure warrant.

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).

​Neither the text ofArticle 131e, UCMJ, nor the explanation in Part IV of the MCM, define when a seizure is complete for purposes ofthe statute. 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, 4 M.J. 360, 362 (C.A.A.F. 1996) (citing United States v. Jacobsen, 466 U.S. 109, 113 (1984)). 

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.

​This framework is necessary to address both evolving technology and the ethereal nature ofdigital evidence. Moreover, it is consistent with the holding in United States v. Hahn, 4 M.J. 360 (C.A.A.F. 1996), because the only "possessory interest" of any relevance to Article 131e, UCMJ, is the capacity to destroy, remove, or otherwise dispose of the putative evidence.

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 combination of victim's statement and the defense evidence presented by the experts demonstrated: (1) an expert was necessary to assess the victim's BAC range and her description of the sexual assault in light of the science of the impact of alcohol on the formation and accurate recall of memory; (2) each expert would use the evidence to assist the defense to prepare an alternate theory of the case than the government; and (3) the inability of the defense counsel to calculate a BAC or interpret scientific evidence explaining the impact of alcohol on the formation and recall of memory. The military judge abused her discretion in denying the defense with expert consultants to prepare their case.

[In fn. 3] We pause to note victim's intoxication and potential memory loss were corroborated at trial by the SANE[.]

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."

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. 

United States v. 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. 

Appellant [personally] asserts the military judge erred when he allowed the government to question the victim during his unsworn statement. While we agree this was error, we find the error was forfeited when appellant did not object and based on the overall tenor of the examination, as compared to the victim's narrative statement, the error was harmless. 

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. 

United States v. Thompson

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.

United States v. Jones

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.

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.

did not expressly allege that appellant committed a "violent offense" against his intimate partner, they failed to state an offense. The specifications alleged: 

     SPECIFICATION 3: In that [appellant] did, at or near Cameron, North Carolina, on or about 13 May 2021, unlawfully pick up and throw the body of [the victim], an intimate partner of the accused, on a desk. 

      SPECIFICATION 4: In that [appellant] did, at or near Cameron, North Carolina, on or about 11 May 2021, unlawfully strike[the victim], an intimate partner of the accused, in the face with his hand.

The military judge ultimately concluded that because the specifications did  not contain "direct, that is to say, express language to apprise the accused of the government's theory of criminality under Article 128b," the "omission of the words 'violent offense' .... constitute a failure to state an offense of domestic violence under Article 128b." During argument, the military judge also cut off trial counsel when he tried to argue lack of prejudice, ruling "I don't even reach prejudice on a jurisdictional issue."