United States v. Cisti

an attorney “must be both qualified and designated” as a judge advocate in order to perform judge advocate functions, and when Capt CP had lost his standing to practice law in March 2021 he was no longer qualified to serve as a judge advocate. Therefore, the Defense reasoned, Capt CP was not eligible to administer the oath to Lt Col P in November 2021, nor to represent the Government at the preliminary hearing in January 2022, and the Charge and specifications should be dismissed. In response, the Government contended that because Capt CP’s designation as a judge advocate had not been withdrawn, he remained eligible both to administer the oath to Lt Col P and to represent the Government at the preliminary hearing.

This notice of appearance must: (a) State the jurisdiction(s) in which they are licensed and eligible to practice law, (b) Certify that they are in good standing with each jurisdiction, (c) Certify that they are not subject to any order disbarring, suspending, or otherwise restricting them in the practice of law, and 

United States v. Massey

“Regarding the picture Appellant asked for on 24 July 2018, Ms. BM asked Ms. MN, “just to clarify[,] what did he mean by I still want a pick of your kid with his penis in your mouth[?]” Ms. MN replied, “he’s asked for stuff like that before.” Ms. BM asked, “Did you do it?” Ms. MN answered, “[n]ever” and added, “He wants to f[**]k his kids.” Ms. BM later informed Ms. MN that she had confronted Appellant and that “he confessed to it after about an hour of denial.”

told the police officer who interviewed her at her house that she only listened to—and did not actively participate in—Appellant’s fantasies of sexual conduct with children. She admitted in her deposition that this was not true, as she had participated in those fantasies with Appellant and had even initiated such conversations on occasion. Ms. MN said she had lied to the officer because she did not want to get in trouble. Ms. MN testified she never alerted law enforcement about Appellant’s requests, saying: “I didn’t know I was allowed to since he was overseas and he had never physically touched my child.” She conceded that she approached Ms. BM not because she believed she was being asked to commit a crime, but because she believed Ms. BM should know what Appellant was doing behind her back.

[T]he Government contacted Ms. MN, who was living in California, in an effort to secure her appearance at trial. Ms. MN sent an email to trial counsel which read in its entirety: “I talked it over with my husband and we don’t think it will be a good fit for us, having me alway [sic] for so long. I would love to help any way I can going forward. Thank you for everything.” The Government attempted to persuade Ms. MN to change her mind, but Ms. MN persisted in refusing to travel to the United Kingdom for the trial, even though her expenses would have been paid for by the Government. She further frustrated Government efforts to secure her presence by refusing to provide the passport information needed to arrange her international travel. The convening authority then ordered the oral deposition at Travis Air Force Base, California; Appellant, his counsel, and his expert consultant in forensic psychology were present for the video-recorded proceeding. Although Ms. MN agreed to the deposition, she told the parties she still had no intention of participating in Appellant’s court a position she maintained through the Government’s last contact with her about the matter. At trial, the Government made a motion to admit Ms. MN’s deposition in lieu of her in-person testimony. The Defense objected and asked the military judge to abate the proceedings. Alternatively, the Defense asked that the “entirety of the Defense cross-examination” be admitted. The military judge granted the Government’s motion, finding Ms. MN to be unavailable within the meaning of Mil. R. Evid. 804(a). He based this conclusion on the fact that he had no authority to compel civilian witnesses to travel outside the United States and that Ms. MN had steadfastly refused to voluntarily travel. He also concluded the Government had made good faith efforts to obtain her in-person appearance. He further ruled that because the deposition was recorded and transcribed verbatim, Ms. MN’s prior testimony was “undoubtedly reliable and [met] the criteria contemplated in [Mil. R. Evid.] 804(b).” The military judge also noted that Appellant, his counsel, and expert were present, and that the Defense cross-examined Ms. MN “for over an hour on the full scope of relevant topics.” 

The court disagrees because that would require courts-martial to relocate as needed to meet the wishes of recalcitrant witnesses. This would turn the concept of “unavailability” on its head, as the Manual for Courts-Martial plainly contemplates witnesses coming to courts-martial—and not the other way around—by virtue of R.C.M. 703 which explains in detail how to procure the presence of witnesses.

In re RW

​For the reasons set forth below, we grant the petition in part. We vacate the military judge’s 27 September 2023 written order and oral supplement to that order to release Petitioner’s “mental health diagnosis and treatment records” maintained by the 31st Operational Medical Readiness Squadron Mental Health Flight (31 OMRS/MHF) located at Aviano Air Base, Italy, to Ms. CM, a civilian medical law attorney, and subsequently to Major (Maj) AW, a military medical law attorney (both of whom were assigned to JACC), for review and identification of releasable treatment and diagnosis information, and review and redaction of “any and all matters subject to privilege under [Mil. R. Evid.] 513.”

Petitioner asserts that, in issuing the order to produce certain of her mental health records, the military judge erred in three general respects: (1) failing to hold a hearing as required by Mil. R. Evid. 513; (2) failing to apply the process and procedures as required by R.C.M. 703(g)(3) (arguing the Petitioner’s mental health records physically maintained by the 31 OMRS/MHF were not “within the possession, custody, or control of military authorities” within the meaning of R.C.M. 701(a)(2)); and (3) issuing an order outside the scope of the military judge’s authority.

Having determined interpretation and application of Mil. R. Evid. 513(e)(3) was necessary—as evidenced by his order—the military judge did not address the four prerequisites for in camera review of qualifying mental health records in accordance with Mil. R. Evid. 513(e)(3)(A)–(D). Cf. In re AL, Misc. Dkt. No. 2022-12, 2022 CCA LEXIS 702, at *21 (A.F. Ct. Crim. App. 7 Dec. 2022) (order) (granting Article 6b, UCMJ, petition on Mil. R. Evid. 513 grounds where the military judge ordered production of entirety of AL’s Family Advocacy Program mental health records over AL’s claims of privilege without adhering Mil. R. Evid. 513(e) procedural safeguards)). Furthermore, even if the military judge had considered those prerequisites, Mil. R. Evid. 513(e)(3) authorizes only one person to complete in camera review: the military judge.

Jurisdiction

On 19 February 2019, while Appellant’s civilian trial for the August 2018 alleged rape of HG was pending, Appellant reached the expiration of his then current enlistment. Appellant was also under investigation by the Air Force for the 2017 alleged assaults against SK.

The Mountain Home AFB legal office delayed Appellant’s separation by requesting he be placed on “administrative hold” because he was the “Subject of an Air Force Office of Special Investigations (AFOSI) investigation, with the possibility of a future court-martial.” [1] On 18 March 2019, the administrative hold was renewed on similar grounds.

On 21 and 22 March 2019, while the civilian trial was still pending, an administrative discharge board was convened and recommended Appellant be administratively discharged with an under other than honorable conditions (UOTHC) service characterization, the basis being the alleged rape of HG pending trial in civilian court. However, following the board, Air Force authorities took no further action to effectuate the administrative discharge, either before or after Appellant was acquitted of the alleged rape of HG in April 2019.

Instead, Appellant’s administrative hold was periodically renewed on the grounds that charges would likely be preferred against him as a result of the ongoing AFOSI investigation of SK’s allegations. On 30 October 2019, Appellant’s squadron commander preferred the five specifications alleging offenses involving SK. The preliminary hearing officer submitted his report to the special court-martial convening authority on 28 January 2020.

On 28 February 2020, the squadron commander preferred the four specifications alleging offenses involving CM. On 25 March 2020, the general court-martial convening authority referred the charges and specifications for trial by general court-martial.

​Appellant was arraigned on 27 April 2020. Appellant did not challenge the court-martial’s jurisdiction over himself or the charged offenses prior to his appeal.

Appellant essentially contends the Government’s extension of his enlistment beyond 19 February 2019 for the “possibility of a future court-martial” was a subterfuge in order to administratively discharge him with a UOTHC service characterization. [2] Appellant contends it was only after the state court acquitted him of the alleged rape of HG that the Government began preparing in earnest to prosecute him. Appellant further suggests certain of the legal office’s administrative hold requests were untimely or otherwise deficient in some respect.

United States v. Cabuhut,
__ M.J. ___ (A.F. Ct. Crim. App. 2023) (en banc)

​The MJA convicted Appellant of four specifications of sexual abuse of a child under the age of 16 years on divers occasions; one specification of making an indecent recording on divers occasions; one specification of obstruction of justice; and five specifications of viewing or possessing child pornography on divers occasions.

The MJ sentenced the Appellant to ​a DD, 30 years, RiR to E-1. Appellant raised three issues on appeal: (1) the MJ abused his discretion by accepting Appellant’s guilty plea to sexual abuse of a child by indecent conduct done in the “presence” of that child without defining “presence” to mean the child had to be aware of the indecent conduct; (2) legal and factual insufficiency to one specification; and (3) sentence inappropriateness.

AFCCA ordered oral argument on three additional issues relating to Appellant’s assignments of error and an additional issue, not raised by Appellant, that was identified during this court’s Article 66(d), UCMJ, 10 U.S.C. § 866(d), review of facially unreasonable appellate delay.

AFCCA found Appellant’s convictions both legally and factually sufficient, and no error materially prejudicial to the substantial rights of Appellant occurred. And overruled United States v. Burkhart, 72 M.J. 590 (A.F. Ct. Crim. App. 2013).

Findings and sentence affirmed.

[T]rial counsel requested a special instruction with regard to the bad-conduct discharge punishment option. Trial counsel requested that instead of the standard instruction on a bad-conduct discharge, that the members be provided the following:
     A bad[-]conduct discharge is less severe than a dishonorable discharge and is designed as a punishment for bad conduct rather than as a punishment [*4]  for serious offenses of either a civilian or military nature. It is also appropriate for an accused who has been convicted repeatedly of minor offenses and whose punitive separation appears to be necessary.
The military judge heard the parties' positions on this proposed instruction at that time. Trial defense counsel objected to this instruction arguing that the language was confusing and that it simply served to bolster the Government's argument.

When uncharged misconduct is part of a continuous course of conduct involving similar  crimes and the same victims, it is encompassed within the language directly relating to or resulting from the offense of which the accused has been found guilty under R.C.M. 1001(b)(4). United States v. Nourse, 55 M.J. 229, 231–32 (C.A.A.F. 2001). . . . see also United States v. Wingart, 27 M.J. 128, 135 (C.M.A. 1988) (holding that R.C.M. 1001(b)(4) allows a trial counsel to “present evidence as to any aggravating circumstances directly relating to or resulting from the offenses of which the accused has been found guilty”).

(1) whether the military judge abused his discretion by considering as aggravation evidence Prosecution Exhibit 8, a video depicting CP, without determining whether Appellant knowingly possessed it and without properly weighing its probative value[.]

United States v. Johnson

"Bait-and-Switch?"

On appeal, Appellant argues the Government violated his due process rights by switching the events that Specification 1 of the Charge was meant to address. Specifically, Appellant argues he, his trial defense counsel, and “everyone else involved in the court-martial believed that Specification 1 alleged a nonconsensual touching of GH’s buttocks while bending over in the kitchen to put cookies in the oven.” He further claims the inclusion of him touching GH’s buttocks on the air mattress was a “bait and switch” that deprived him of a fair trial. We find the record does not support Appellant’s claim.

1. Specification 1 of the Charge has never changed. It reads the same post-trial as it did when it was preferred by Appellant’s commander. Notably, Appellant did not request a bill of particulars to clarify the Government’s evidence supporting Specification 1.

2. Appellant makes no argument that he was not provided discovery in this case, therefore, he had pretrial access to GH’s statements that Appellant had his hand down the back of her underwear while she slept. Appellant also received discovery of his own statements to AFOSI during the investigation where he discussed at least a dozen times touching GH’s buttocks on the air mattress. We also note the Government’s opening statement made no mention of the incident in the kitchen, but focused heavily on Appellant’s conduct on the air mattress. Similarly, the Government’s closing argument clearly indicated that the abusive sexual contact on the air mattress was the Government’s “primary” focus of prosecution. We find no support for Appellant’s claim his due process right to notice was violated.
. . . 
 Appellant argues the military judge permitted the Government to argue the abusive sexual contact occurred while GH was asleep, as opposed to how it was charged—without her consent. Again, we find the record does not support this argument.
. . .
We see no reason why the Government may not use evidence that GH was asleep— ordinarily the focal point of a prosecution under the theory of while asleep—as circumstantial evidence of the lack of actual consent in a prosecution under a theory of without consent.
. . . 
[W]e find nothing in the record to suggest that trial counsel misled the members or asked them to convict Appellant of any offense other than the one for which he was charged. The Government submitted evidence of both Appellant’s conduct in the kitchen and on the air mattress. "It makes no difference how many members chose one act or the other, one theory of liability or the other. The only condition is that there be evidence sufficient to justify a finding of guilty on any theory of liability submitted to the members." United States v. Brown, 65 M.J. at 359 (quoting United States v. Vidal, 23 M.J. at 325). 

Sentencing for Acquitted Conduct

On 16 May 2023, pursuant to Article 6b, Petitioner requested this court issue a writ of mandamus and stay of proceedings in the pending court-martial of United States v. Technical Sergeant MFK (the Accused). Petitioner requests this court “vacate the trial court’s decision [dated 11 May 2023] to order disclosure of extensive medical records” of Petitioner. On 19 May 2023, this court issued an order staying the court-martial proceedings and staying further implementation of the trial court’s 11 May 2023 order to the 56th Medical Group (56 MDG), pending further order by this court. This court ordered briefs and [h]aving considered [everything], we deny the petition. 

to grant the defense motion in part. The military judge’s findings of fact included, inter alia, that Petitioner was the “primary witness against the [A]ccused” on each of the charged offenses; that Petitioner and the Accused were married at the time of the alleged offenses; and that Petitioner had told multiple individuals she had sought medical and mental health treatment due to injuries allegedly caused by the Accused, and had spoken with Family Advocacy personnel. The military judge noted the responses to the defense motion from the Government and from Petitioner, but stated he had not considered the latter due to Petitioner’s “lack of standing before this trial court,” citing In re HK.
. . .
In furtherance of his ruling, on 11 May 2023 the military judge also issued a separate order to the 56 MDG located at Luke AFB to “provide any medical, mental health, or Family Advocacy records [pertaining to Petitioner] maintained by the [56 MDG] or any subordinate clinic.” The military judge directed the 56 MDG to work with a medical law attorney (ed. note, which helps avoid the problem we saw in In re B.M.), to “ensure any and all matters subject to privilege under Military Rule of Evidence 513 are redacted prior to providing the information” to trial counsel “as soon as practicable and no later than 1700 local on 24 May 2023.” The military judge further ordered that only the Prosecution and Defense (to include appointed expert consultants), as well as Petitioner and her Victims’ Counsel, were to have access to the disclosed records.

Appellant retained new counsel, Mr. CH, who filed a notice of appearance with the trial court on 17 April 2023. On 19 April 2023, the Defense filed a motion to continue the trial to a date no earlier than 1 August 2023. On the same date, Mr. CH clarified that his appearance was limited to his request for a continuance, as he would not be able to represent the accused if the request was denied. 

The Prosecution opposed the defense motion in writing on 24 April 2023. The Prosecution asserted as fact that On 24 April 2023, counsel for named victim [VM] provided a memo from [VM] in which she states she suffered pecuniary loss from the long waiting period before trial and expect[s] to suffer further loss if there is any further delay. The loss is due to legal fees because the Accused’s divorce from [VM] has been continued due to the court-martial.

The military judge considered the parties’ filings, but did not consider the separate responses from the detailed victims’ counsel for VM and the child. Citing In re HK, 2021 CCA LEXIS 535 (A.F. Ct. Crim. App. 22 Oct. 2021) (order), the military judge explained in a footnote: “This court received the responses but did not consider them due to lack of standing before this trial court.” VM’s counsel’s response totaled 49 pages, comprised of an 8-page document from counsel and 7 attachments, including VM’s memorandum and attachment. VM’s counsel asserted the Defense had not established a reasonable basis for a continuance; a continuance is not just as it violates VM’s Article 6b, UCMJ, rights; and the accused’s interest in “convenience” does not outweigh VM’s Article 6b, UCMJ, rights. 

Importantly, absence of a specific statutory right to be heard does not mean that a military judge is prohibited from considering a victim’s effort to exercise Article 6b, UCMJ, rights. To the extent the military judge in this case believed otherwise based on the unpublished order In re HK, he was mistaken, but any such mistake in this case is not dispositive on the issues before us.

The military judge denied VM the opportunity to be heard through counsel, but otherwise allowed her exercise of rights to proceedings free from unreasonable delay and to be treated with fairness under Article 6b, UCMJ. VM was not entitled “to a trial date of her choosing,” but her circumstances were “factor[s] for the military judge to consider in balancing competing interests and making scheduling decisions.” In re KK, 2023 CCA LEXIS 31, at *16–18. The military judge considered VM’s personal statement and its attachment, as well as the argument from the Prosecution on VM’s behalf. He considered how a delay would affect VM and her family. He balanced VM’s rights with the accused’s rights, and ultimately ruled in favor of the accused.