In United States v. Reimers, the Appellant challenges the constitutionality of UCMJ art. 134(3). For the first time on appeal, Appellant argues that Clause 3 of Article 134, UCMJ (“Clause 3”), is unconstitutional as applied to servicemembers because it denies equal protection of the law. Appellant argues that a defendant in civilian federal court enjoys more constitutional rights than does a military accused, such as entitlement to grand jury indictment, jury size, and the requirement of a unanimous jury verdict. Consequently, according to Appellant, the Government’s election of the military forum under Clause 3 deprives him and other servicemembers of equal protection under the law because civilian federal prosecutors declined to prosecute those offenses. Appellant asks this court to set aside and dismiss Specification 2 of Charge VI (making a silencer) and Specification 5 of Charge VI (selling a firearm to a known felon), which were charged under Clause 3. In In reKK, the complaining witness sought a writ because the military judge denied a government requested continuance so she could be available for trial. (The writ of course gets such a continuance.) The court finds no basis to issue a writ. What Petitioner has not identified is any right to have the accused’s courtmartial dates set such that they accommodate either her or her victims’ counsel’s schedule. Instead, Petitioner’s potential absence more directly impacts the ability of the Government to present its case, which is to say that if Petitioner’s live testimony is important to the Government’s case, then it is the Government which would seek relief in order to ensure Petitioner’s presence. In this case, the Government requested a continuance for this very reason. That request was denied, and the Government has not sought relief from our court. Just as Petitioner has no legal ability to force the Government to call her as a witness, Article 6b, UCMJ, does not provide Petitioner with authority to challenge—on the Government’s behalf—the military judge’s substantive ruling on the continuance motion with respect to such matters as her availability. Victims involved in court-martial proceedings do not have the authority to challenge every ruling by a military judge with which they disagree; but they may assert their rights enumerated in Article 6b, UCMJ, in the Manual for Courts-Martial, and under other applicable laws.
3 Comments
United States v. Injerd is worth the read. 1. Charging decisions and word choice. 2. How calculating the actual sentence can be a bit complicated under the new rules. 3. The facts, are well, interesting. Of Counsel and Appellant's combined 15 issues, the court focuses on the two assigned errors to find a factual insufficiency for the resisting apprehension conviction, but no error as to the sentence calculation. Charging decisions? An MJ found Appellant guilty of attempting to escape custody, desertion, resisting apprehension, striking a superior noncommissioned officer, failure to obey a lawful order, unlawfully carrying a concealed handgun, assault upon a person in the execution of military law enforcement duties, fleeing apprehension, and resisting apprehension[.] Appellant was acquitted of one specification each of fleeing apprehension and assaulting a superior noncommissioned officer[.] United States v. Edwards, presents an interesting resolution of a sentence reassessment. After this court affirmed the findings and sentence, United States v. Edwards, No. ACM 39696, 2021 CCA LEXIS 106 (A.F. Ct. Crim. App. 10 Mar. 2021) (unpub. op), the United States Court of Appeals for the Armed Forces (CAAF) granted Appellant’s petition for review of the following issue: In re AL is a discovery case based on a complaining witness's Writ Petition. The defense discovery request asked for “[a]ny relevant personnel, medical, and mental health records of any complaining witness . . . to include records in the possession of the Family Advocacy Program (FAP) . . . .” Trial Counsel got "575 pages of medical records, including 42 pages of FAP records." Trial Counsel thought some information was relevant. After litigation, and over the SVC's objection the military judge ordered production to the defense without redaction or reviewing in camera. Essentially,
"As noted above, the military judge’s order did not address Mil. R. Evid. 513 at all. Therefore, we cannot be certain how the military judge analyzed the application of the rule." In United States v. Covitz, the Appellant gets a new trial because the military judge abused his discretion in "by denying challenges for cause against multiple panel members." "Appellant’s convictions arose from allegations he assaulted his former girlfriend." Beginning with 14 prospective members, agreement and challenges whittled that down to ten. But the defense had four more challenges (one of which was later resolved with a peremptory challenge)--all initially denied. AFCCA agrees that one denial was proper, so we are down to three. 1. Implied bias challenge based on "based on his knowledge of both Appellant and Maj RW, whom trial defense characterized as “a central witness[.]” ” Trial defense counsel pointed to Maj MP’s “very high opinion” of Maj RW and told the military judge that Maj RW was “very financially well off” based upon some profitable investments he had made. The relevance of Maj RW’s financial status, according to trial defense counsel, was that Maj MP essentially said he “goes to [Maj RW] for financial advice. . . . It’s where [Maj MP] is literally going to somebody who has had a significant amount of success financially and both [sic] in his career and asked him for advice.” Trial defense counsel argued that Maj MP was relying on Maj RW’s advice on “potentially major life and financial decisions.” Trial defense counsel pointed to the length of the conversations and the fact that Maj MP and Maj RW had a long conversation just days before the court-martial, as well as the fact that Maj RW was an adverse witness to Appellant—in no small part because Maj RW was in a relationship with Ms. CC, Appellant’s former girlfriend and victim in the case. The Defense also noted Maj RW’s affiliation with the potential defense witness, Capt SS. The Government opposed because "that because Maj MP knows Appellant, a Government witness (Maj RW), and a Defense witness (Capt SS), that outside observers “would see that as potentially balancing out in a way.” When denying the challenge the MJ said he had considered the liberal grant mandate and that he did “not find it to be a particularly close call based upon [witness/member] limited interaction. 2. The member had apparently rented a home from the Appellant (where the alleged offenses happened) and he had a sister-victim. A question came up about the members knowledge of the house layout and some "sound barrier" problems which migh tbe relevant in testimony. The MJ responded similarly to #1. 3. Same result as #1, 2, based on [A]pproximately eight months before Appellant’s court-martial, she started volunteering at a local shelter for women who were victims of domestic violence. Maj JR’s role was to lead hour-long yoga classes once or twice a month. The shelter prohibited volunteers from talking to the shelter residents about the abuse they suffered and from interacting with the women at all outside the shelter. [S]he went through a four-hour volunteer orientation at the shelter before she started leading the yoga classes, but there was no discussion of domestic violence itself during the orientation. The Defense challenged Maj JR under an implied bias theory based upon her volunteering at the shelter. Trial defense counsel said the Defense might call an expert witness to testify about “biases within the system when they know the victim of domestic violence,” which might conflict with Maj JR’s experience at the shelter. The Government perempted a different member and the defense perempted #3 above.
Thus, there were eight members and quorum. The AFCCA concludes that the MJ erred as to #1 and #2 above. There is a good analysis of the implied bias and liberal grant mandate. It seems the AFCCA takes the position that the decision was a close call on the facts and the liberal grant mandate should have resulted in a granted challenge. Appellant Nix was convicted MJA of an assault and battery on his ex-wife, for which the MJ sentenced him to 135 days, RiR, a BCD, and a reprimand. Appellant raises one assignment of error with six underlying allegations that trial defense counsel was constitutionally ineffective during his representation of Appellant by failing to: (1) object to improper findings testimony; (2) call a defense expert witness; (3) object to admission of incomplete personnel records; (4) object to an improper victim impact statement; and (5) investigate favorable defense witnesses. In addition, Appellant claims (6) trial defense counsel’s “misplaced concern for the named victim amounted to an actual conflict of interest which adversely impacted his representation” of Appellant by withdrawal of a valid objection during sentencing. Initially the IAC claims items (1) - (5) was a Grosty. The court ordered DC declarations. Upon receipt of the declaration, appellant's counsel added item (6) and also moved the issues from the Grosty table to a merits issue. (Note. This is another case where sometimes a Grosty issue gets the court's attention and sometimes, although not here, gets relief.)
1. Improper findings testimony. A witness testified about lingering pain and about the appellant's "personal morals." There was no objection. However, the MJ sua sponte said he'd only consider the testimony for the limited purpose of "why the witness remembers the conversation." Even if error, no prejudice on these facts. 2. Not calling an expert. Baker is remanded because "the convening authority violated Appellant’s basic due process rights when she decided to take no action on sentence before allowing Appellant five days to respond to the victim’s post-trial submission of matters in accordance with Rule for CourtsMartial (R.C.M.) 1106(d)(3)"
Appellant pled guilty to three sexual abuses of a child and of receiving and viewing CP; for which he was sentenced to 15 months, RiR, and a DD. That leaves two issues on table when the case comes back one of which asks "whether trial counsel’s sentencing argument improperly referenced victim impact and criticized Appellant’s apology when no victim impact evidence had been admitted." Note to DC. "Appellant did not file a motion with the military judge alleging convening authority error, as permitted under R.C.M. 1104(b)(2)." In remanding, the court notes that "In this case, “some colorable showing of possible prejudice” is demonstrated because the R.C.M. 1106A submission contained new information, Appellant has articulated how he would have responded to the victim’s submission had he been given the required opportunity, that his response would have been different from his initial clemency submission, and the convening authority could have granted some clemency relief." In Wermuth, the Appellant had several issues including trial counsel's sentencing argument. Appellant asserts trial counsel’s statement that the court had “heard no evidence” that Appellant had “actually gotten help” during the “yearand-a-half” of investigation was improper because the Defense had no obligation to put on evidence. The implication of trial counsel’s comment was that the Defense had failed to introduce such evidence. We agree this argument by trial counsel was, at a minimum, poorly phrased. Trial counsel is generally not permitted to comment on the failure of the defense to produce evidence. Taylor, 47 M.J. at 324 (C.A.A.F. 1997). Although Taylor and the cases cited therein dealt specifically with evidence for findings, with regard to sentencing evidence this court has noted: “Whenever trial counsel chooses to argue that an accused has not ‘shown’ the sentencing authority something, counsel treads backwards into a mine field in over-sized galoshes while wearing a blindfold.” United States v. Feddersen, No. ACM 39072, 2017 CCA LEXIS 567, at *9 (A.F. Ct. Crim. App. 21 Aug. 2017) (unpub. op.). In response, the Government cites United States v. Edwards for the principle that trial counsel may comment on an accused’s expression of remorse in an unsworn statement that “can be arguably construed as being shallow, artificial, or contrived.” 35 M.J. 351, 355 (C.M.A. 1992) (citations omitted). However, this response misses the mark. The concern is not that trial counsel commented on Appellant’s unsworn statement, but that he did so by implying the Defense failed to introduce evidence substantiating Appellant’s statement, rather than referring to “other evidence in the record which gives rise to the inference that [the] accused [wa]s not remorseful.” Interested readers might also want to wade through the discussion of victim impact statements that are attached to the stipulation of fact.
United States v. Calloway. In September 2017, the Appellant pled guilty to wrongful use of cocaine on divers occasions and wrongful use of 3,4-methylenediox- United States v. Calloway, No. ACM S32509 (f rev) 2 ymethamphetamine of and was sentenced to 30 days, 30 days HLWC, RiR-E-2, a BCD, and a reprimand. At Calloway's first appearance AFCCA set aside the sentence. A rehearing being considered "impractical" a sentence of "no punishment" was approved. On redocketing, the case was remanded again because, "the convening authority because the convening authority’s 4 May 2020 action purporting to approve the original findings was “not only erroneous and ultra vires, but confusing and misleading.” On redocketing, there being no assignments of error and no specificied issues, the findings and sentence were affirmed. United States v. Geier. Appellant pled guilty to wrongful use of controlled substances and dereliction of duty in vi 105 days and a BCD. He was sentenced in September 2020. The case was docketed with the court in January 2021 and was relatively quickly returned to correct post-trial errors. The Appellant had three assignments of error: (1) whether a plea agreement provision requiring the military judge to adjudge a bad-conduct discharge is legally permissible; (2) whether Appellant received adequate sentence relief for his pretrial confinement credit; and (3) whether his sentence is inappropriately severe. In re D.D. Charges were preferred July 29, 2022. United States v. Maurer. This is the fourth appearance at AFCCA the case having been remanded three times to correct post-trial errors. The findings and sentence are affirmed. The Appellant was sentenced in April 2019. United States v. Pacheco. In a GP, the Appellant was convicted of conspiracy to distribute marijuana, wrongful distribution of marijuana on divers occasions, and wrongful possession of marijuana. She was sentenced to effectively 45 days, RiR, and BCD. On appeal the sole issue is sentence appropriateness. United States v. Mar involves a "waive all waiveable motions" provision in a PTA. Mar got himself 12 months, RiR, and a BCD in exchange for a GP "dereliction of duty, two specifications of wrongful use of marijuana, two specifications of wrongful use of cocaine, one specification of wrongful use of psilocybin mushrooms, one specification of wrongful use of 3,4-methylenedioxymethamphetamine (ecstasy), one specification of wrongful distribution of marijuana, one specification of wrongful possession of marijuana, one specification of solicitation of distribution of ecstasy, and one specification of breaking restriction[.] Prior to trial the accused had been on restriction and later pretrial confinement. The court specified several issues. In light of Rule for Courts-Martial (R.C.M.) 705(c)(1)(b), did the military judge err when she: Velasquez pled guilty to two assaults consummated by a battery upon two women by touching their buttocks with his hand, and one assault consummated by a battery upon his spouse, on divers occasions, by touching her legs, back, and buttocks with his hand. He was sentenced to six months, TF, RiR, a BCD, and a reprimand.
On appeal he complains the sentence is too severe and accuses his defense counsel of failing to “request disapproval of the adjudged forfeitures, any deferments, or a waiver of automatic forfeitures from the convening authority.” The court finds no error. As to the IAC, there was no evidence presented to AFCCA that Appellant personally requested any clemency or that he asked his counsel to do that and they didn't. |
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