United States v. BurchBurch is an important case on how Lautenberg applies to the various 128 offenses--wish it were published. In this case some misunderstandings during PTA negotiations and on the record led to a guilty plea being set aside and a rehearing authorized. The Appellant pled guilty to assault and battery under Article 128, for which the MJ did not impose any punishment. Initially, he was charged with four specifications under Article 120, one under Article 128b, and one under Article 90. The government subsequently dismissed the Article 128b and Article 90 specifications. PTA negotiations began. Initially, the government offered to dismiss the 120s in exchange for a plea to the 128b. The Appellant, an avid hunter, expressed that he did not want to plead to a DV charge because of Lautenberg. There was back and forth on this where there were discussions about a plea to a 128. This is where it gets squirrely. As a counteroffer, defense counsel proposed a Resignation for the Good of the Service (RFGOS). After discussing the matter with the alleged victim, the SVP told defense counsel that the victim and the government would support a RFGOS. Some of what happened might be attributable to a lack of communication by the Government.
United States v. IronhawkAn Article 62 appeal challenging the military judge's exclusion of Mil. R. Evid. 404(b) evidence: a ruling that proffered statements were not res gestae, that a statement that the accused would "kick her husband's b***" is not indicative of an intent to murder, and talking about divorce isn't even a crime, wrong, or character act for Mil. R. Evid. 404(b). United States v. K. DavisAnother Article 62 appeal which ACCA grants in a 22 page decision.
United States v. MaloneWhen an accused does not raise unreasonable multiplication before pleas (or in accordance with the trial management order--the issue is waived (unless there's plain error [United States v. Britton, 47 M.J. 195, 198 (C.A.A.F. 1997)]. United States v. Hardy, 77 M.J. 438, 440 (C.A.A.F. 2018). In Malone, there was no motion to dismiss for UMC nor one for unreasonable multiplication of charges. "To the contrary, when defense counsel affirmatively told the military judge that he had no motions to dismiss, that was a "deliberate decision" not to challenge what appellant is now claiming are "plainly erroneous" specifications." On appeal, the Appellant raises a multiplicity argument for the first time. Now what. 1. There was a PTA. 2. The PTA specifically called upon the Appellant to plead guilt to the three specifications of DV now raised in the multiplicity argument. 3. Interestingly, there was no PTA clause agreeing to waive all waivable motions. 4. Had a multiplicity motion been raised and was successful, the CA could withdraw from the PTA. [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. ACCA cites Morris [review denied] [1] and Pereira that "this is not the first time that this court has held that a negative response to the military judge's pre-plea inquiry of whether appellant has any motions to dismiss constitutes an affirmative waiver." More importantly,
[1] Remember, denial of review is not a decision on the merits. United States v. McGriff, 78 MJ 487, 487 (CAAF 2019). United States v. Carver, 260 U.S. 482, 490 (1923). See also Evans and Jordan v. Stephens, et al., 544 U.S. 942, n.1 (2005). Wednesday, May 15, 2024 Certificate for Review Filed No. 24-0156/AR. U.S. v. Ross E. Downum. CCA 20220575. I. WHETHER THE ARMY COURT ERRED IN CONDUCTING ITS LEGAL SUFFICIENCY ANALYSIS WHEN IT HELD THAT UNITED STATES V. CAMPBELL, 50 M.J. 154, 160 (C.A.A.F. 1999) REQUIRES NOT ONLY EXPERT TESTIMONY INTERPRETING URINALYSIS RESULTS BUT THE ADMISSION OF THE UNDERLYING PAPER URINALYSIS RESULTS AS WELL. II. WHETHER THE ARMY COURT ERRED WHEN IT HELD THAT UNOBJECTED TO EXPERT TESTIMONY INTERPRETING THE URINALYSIS RESULTS LACKED RELEVANCE WITHOUT THE ADMISSION OF THE PAPER URINALYSIS RESULTS. III. WHETHER THE ARMY COURT FAILED TO CONDUCT A PROPER FACTUAL SUFFICIENCY ANALYSIS UNDER ARTICLE 66(d)(1)(B). ACCA Filings. This is the proverbial "paper" urinalysis case, but without the paper. Writes Judge Penland and goes on to find legal insufficiency. 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. United States v. PettryAnother stern warning. 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. Visiting each basis for granting relief for post-trial delay, ACCA finds no Due Process violation. But visits Article 66(d)(2). 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). United States v. McCulloughA 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 issueIn 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. A cautionary note about stipulations that go with GPs. During the providence inquiry, the accused told the MJ he was sitting in the passenger seat drunk. 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. A cautionary note about stipulations: They may help get damaging information in front of the MJ without the need to call a witness, but they are not a substitute for the accused's admissions during the providence inquiry. A second cautionary note is that when the MJ excludes defense testimony, it may be necessary to make a proffer of expected testimony. If the military judge refuses to let you do that, it's on her. In that situation, put the proffer in writing and submit it to the convening authority citing Article 38(c), UCMJ. Assuming no EoJ, submit the proffer as a motion to attach as the next appellate exhibit to the record for appellate purposes. 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. See United States v. Eslinger, 70 M.J. 193 (C.A.A.F. 2010). In this case the BCD was disapproved. 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. Judge Hayes dissented on the reassessment finding. In a footnote, 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. AbdullahA GP SPCM. We have another case in which ACCA addresses the inadequate and perfunctory delay explanations for dilatory post-trial processing. Abdullah was a one-day case, and the transcript was 101 pages. The court notes it took 96 days, a little over a page a day. United States v. Johnson"The first assignment of error asserts the military judge erred in admitting three statements under the excited utterance exception to hearsay." The defense objected to two of the statements. ACCA found an error but no prejudice. The third statement was not objected to, was considered forfeited, and was examined under the plain error test. The court jumped the question of error and went straight to the prejudice analysis. Generally, ACCA found the two objected-to statements were indicative of "reflection and deliberation as opposed to being spontaneous, excited, or impulsive." ACCA points out that the MJ failed to "put his full analysis on the record and did not address the elements required under Arnold [25 MJ 129, 132 (CMA 1987)], nor did he provide analysis for the third element using the Donaldson factors, thereby affording him less deference by this court. United States v. Flesher, 73 MJ 303, 312 (CAAF 2014)." This failure was meaningful because "Although we acknowledge this is a close call, we afford the military judge little deference due to his failure to place his full analysis on the record." Cheers, Phil CaveUnited States v. Connor The Conner case is another addressing what a victim can say in an impact statement. We know that sentencing witnesses cannot opine on a punitive discharge or a specific sentence. The newer question is whether a victim can say something similar in an impact statement. The court finds an error but gives no relief. 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." In its restatement of the law the court says: 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. There was no objection by either the defense or the military judge, so the court used the plain error standard of review. Interestingly, given its law restatement, is the court applying the plain error rule to the military judge's failure to sua sponte interrupt as well as to defense counsel? We know the discussion to R.C.M.s is not binding, but in 1001(c)(5)(B), it seems clear the President intended to place some onus on the military judge to intercede. Thus, there is a difference with many other objections where the onus to object is entirely on the defense.
At the end of the opinion, the court recognizes that "notwithstanding the judge's mistake in permitting the [recommendation,]" there is no prejudice. Slip op. at 5 (emphasis added). (We also might why the special victim counsel and trial counsel did not address the issue in pretrial preparations before it came before the court.) United States v. Buhl, __ M.J. ___ (Army Ct. Crim. App. 2023)Where the government overreached in its second prosecution -- after a general court-martial acquitted the appellant of the same act charged under a different article - we grant relief by setting aside the result. Our decision renders the appellant's assigned error moot.
The court first decided that the Appellant had preserved the issue for appeal. The court decides, the issue is preserved absent a formal motion or objection. The court considers that "the defense protested at length to the trial judge (and the convening authority) about the government's repeated efforts to punish appellant for the same act[,]" preserves the issue. The court had ordered briefs on whether there was prosecutorial overreach in light of R.C.M. 906(b)(10). And, "among other things giving the government an opportunity to explain the case's trajectory." The government argued that the NJP refusal justified the referral to court-martial, which 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." |
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