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.
Hernandez 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.
United States v. Gene Williams
In 2013, in Williams Appellant was convicted by an "enlisted" panel of rape, four forcible sodomies, and five assaults. He was sentenced to 20 years, TF, RiR, and a DD. Allegations of aggravated sexual contact with a child and child sodomy were dismissed. He got a Hills remand from CAAF. After a second ACCA affirmance, CAAF set aside the rape conviction, three of the sodomies, and the sentence. One of the sodomies was affirmed as were the five A&B.
In 2019, appellant was tried at a combined rehearing before a military judge at a general court-martial. The rehearing offenses consisted of the three specifications of forcible sodomy set aside by the CAAF, and two additional charges: one specification of aggravated sexual contact with a child and one specification of sodomy of a child under twelve. These two charges were the same charges dismissed without prejudice in appellant's first trial. One specification of rape, for which appellant was found guilty at his original trial, and which was set aside by the CAAF and authorized for rehearing, was dismissed by the government without prejudice. The two additional charges were preferred on 30 August 2018, and were received by the summary court-martial convening authority (SCMCA) on 12 September 2018. Contrary to his pleas, appellant was found guilty of the three specifications of forcible sodomy and one specification of child sodomy.' His sentence for these offenses, along with the resentencing for the five specifications of assault consummated by battery, was a dishonorable discharge, confinement for thirty-five years, total forfeitures of pay and allowances and reduction to E-1.
We are getting to the issue now. Of the "multiple assignments of error," the court finds that "the statute of limitations had expired for the child sodomy offense in the Specification of Additional Charge 11." On sentence reassessment, the court affirmed 19 years confinement.
On the issue. It was not raised at trial and the MJ "did not instruct Appellant of it as a possible defense." The court applies plain error and finds it to be "plain and obvious error not to apply [the SoL defense]." Working through the different statutes and rules applicable, the court concludes that
First, to understand how McPherson applies to the child sodomy offense under Article 125, UCMJ, of which appellant was convicted, we must determine the statute of limitations for this particular offense in this case. For this, we look to the version of Article 43, UCMJ, that was in effect at the time charges were received by the SCMCA. The Specification of Additional Charge II alleges the child sodomy of[ occurred between on or about 1 April 2009 and on or about 30 April 2009, in violation of Article 125, UCMJ. While appellant was initially charged at his first trial in 2011 with this offense, the prosecution dismissed this charge without prejudice. Appellant was again charged at his rehearing with this offense when the government re-preferred the child sodomy on 30 August 2018. The SCMCA received this charge on 12 September 2018. On 12 September 2018, X was approximately 17 years old. The Article 43(b), UCMJ, in effect at this time was codified at 10 U.S.C. $ 843() (Supp. IV 2016).
Steele presents an interesting issue of new claims on or after remand.
In addition to this initial plenary appellate review under Article 66, a non trivial number of appeals return to this court following either a remand to the trial level for a rehearing on findings and/ or sentence (like this case), or following remand from the Court of Appeals for the Armed Forces [CAAF] for additional proceedings in our court. See, e.g., United States v. Sanchez, ARMY 20140735, 2019 CCA LEXIS 164 (Army Ct. Crim. App. 10 Apr. 2019) (summ. disp). When cases come back in these ways, sometimes appellants press new claims of error that they did not raise in their first appeal. In some instances, we have reached the merits of the new claim or claims. See, e.g., United States v. Hemmingsen, ARMY 20180611, 2021 CCA LEXIS 180, at *3 (Army Ct. Crim. App. 15 Apr. 2021) (mem. op.) (concluding that considering the new issues was within the scope of the CAAF's remand order). In other appeals we have held that the newly-raised claim is not properly before us. See, e.g., United States v. Navarette, ARMY 20160786, 2022 CCA LEXIS 255, at *11 (Army Ct. Crim. App. 29 Apr. 2022) (citing United States v. Smith, 41 M.J. 385,386 (C.A.A.F. 1995), for the proposition that "[w]hile [an] appellant is entitled to plenary review under Article 66 ... he is only entitled to one such review.").
Basically, if you can't clear the test above, the issue is procedurally forfeited. The court does not that the newly alleged constitutional error was, to say the least, novel.
Cheers, Phil Cave.
Opinion in Dial.
However, we are ultimately more persuaded by the second basis which contends Congress determined that unanimous verdicts would unduly impede the efficiency of military operations. That is to say, deliberations towards unanimous verdicts are likely to take longer to achieve, thereby keeping participants from their military duties for reater periods of time. See Revision of the Articles of War, United States Senate, Subcommittee on Military Affairs, Statement of Brig. Gen. Enoch H. Crowder, United States Army, Judge Advocate General of the Army (1916), p. 27 [1916 Hearing]. Most importantly, when a unanimous verdict cannot be reached and a hung jury results, the command is faced with the prospect of either engineering a retrial or returning a service member with unresolved charges to its ranks.
A verified commenter says,
The fear of a hung jury, as an impediment to military efficiency, is wrong. The issue is a unanimous verdict to convict, not a unanimous verdict to acquit. The court footnotes the issue and says they are unaware of any other court in the country where a single vote for acquittal results in an acquittal. Perhaps, but there is no other court that convicts on a non-unanimous vote. The equal protection analysis is a different ballgame for the accused who are convicted under Art. 134, Clause 3 offenses. That is not the issue here but it's the issue in other pending cases. The military efficiency rationale won't hold up in these cases.
Cheers, Phil Cave.
United States v. Wilkinson. Appellant was convicted, by a military judge, in absentia of indecent viewing, attempted indecent viewing, two sexual abuses of a child, and indecent exposure. The MJ sentenced him to three years and a dismissal. ACCA had to decide whether the Appellant was voluntarily absent and burdens of proof. The court was satisfied trial could proceed in the Appellant's absence.
On a different note. It is not clear from the opinion when, if ever, the Appellant elected MJA. We know that forum is one of the four or five decisions only the accused can make. The R.C.M. 804 in effect says the accused "shall" be present and that the trial is his "place of duty." Once arraigned, trial may proceed if the accused's absence is voluntary. R.C.M. 903 regulates forum selection. The Discussion to Rule 903(a) says that "If an accused makes no forum selection, the accused will be tried by a court-martial composed of a military judge and members, as specified in the convening order." This is what we old folks called the default. But see, as did ACCA, United States v. Chandler, 80 M.J. 425, 429, n.2 (C.A.A.F. 2021) ("The provisions of a discussion section to the R.C.M. are not binding but instead serve as guidance."). R.C.M. 903(b) requires a written election or one made on the record. See also UCMJ art. 16(b)(3). R.C.M. 903(c)(2) requires affirmative action by the MJ to ensure an election for MJA is voluntary.
United States v. Amos, 26 M.J. 806 (A.C.M.R. June 24, 1988); United States v. Jungbluth, 48 M.J. 953 (N-M. Ct. Crim. App. 1998) are of some help with my question.
I acknowledge it's entirely possible that the Appellant had elected forum on the record before he went UA to some other place. It would seem proper then, if that's the case for a MJA trial to proceed. Cf. United States v. Stiner, 30 M.J. 860, 861 (N.M.C.M.R. 1990).
Does anyone know when and how forum was selected in this case?
If no written request or oral request on the record, perhaps United States v. Turner, 45 M.J. 531 (N-M. Ct. Crim. App. 1996) might be helpful in finding that the trial could not proceed MJA. See also, United States v. Mozie, No. 20130065, 2016 CCA LEXIS 273 *1 n.1 (A. Ct. Crim. App. Apr. 28, 2016). In United States v. Sharp, 38 M.J. 33 (C.M.A. 1993), cited by ACCA, the accused was tried by members.
The court concludes that,
In sum, the question before us is not whether we think it is more likely that appellant perished in the mountains or voluntarily absented himself from his trial. Rather, we can only provide relief if we find that the military judge's ruling constitutes an abuse of discretion. See Gore, 60 M.J. at 187 ("[T]he abuse of discretion standard of review recognizes that a judge has a range of choices and will not be reversed so long as the decision remains within that range.") (citation omitted). As such, based on our review of the entire record and for all of the reasons stated above, we conclude that the military judge did not abuse his discretion in: (1) finding that the government met its burden to prove by a
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