United States v. LaraLara pled guilty to one specification of attempt to view CP and one specification of willful dereliction of duty for failing to refrain from storing, processing, displaying, and transmitting pornography, sexually explicit material, or sexually oriented material while on duty. The military judge sentenced him to 12 months and a BCD. Prior to trial and while discussing the PTA, his ADC advised him he would not have to register for the attempted CP viewing. During providency, the MJ also advised him he would not have to register. So, off to the Brig. The court finds the GP improvident and sets aside the findings and sentence and allows a rehearing. When Appellant was released from confinement, he received a document entitled, “United States Probation System Offender Notice and Acknowledgment of Duty to Register as a Sex Offender.” This document indicated Appellant had to register as a sex offender under the federal requirements, pursuant to the Sex Offender Registration and Notification Act of 2006 (SORNA) codified at 34 U.S.C. § 20901, and he had to register as a sex offender in any state in which he resided. The court explains that There are three different, but interrelated, aspects of sex offense registration pertinent to this case: (1) the federal statute (34 U.S.C. § 20901, et seq.) which requires mandatory sex offender registration for those who are convicted of offenses within the statute’s scope; (2) DoDI 1325.7 which identifies offenses that trigger mandatory sex offender reporting; and (3) state laws concerning registration for qualified sex offenses. See United States v. Miller, 63 M.J. 452, 459 (C.A.A.F. 2006)[.] Additionally, trial “defense counsel must be aware of the federal statute that requires mandatory reporting and registration for those who are convicted of offenses within the statute’s scope, as well as DoDI 1325.7, which identifies offenses that trigger mandatory sex offender reporting.” Trial defense counsel should also state on the record of the court-martial that counsel has complied with this advice requirement.” "While failure to so advise an accused is not per se ineffective assistance of counsel, it will be one circumstance [an appellate c]ourt will carefully consider in evaluating allegations of ineffective assistance of counsel.” However, “[g]iven the plethora of sexual offender registration laws enacted in each state, it is not necessary for trial defense counsel to become knowledgeable about the sex offender registration statutes of every state.” The court finds the SORNA required registration here. Because Appellant was misadvised the GP is improvident and set aside, and there can be a rehearing.
Consider visiting SMART operated by DOJ and viewing the National Guidelines and 34 U.S.C. 20911(7)(G). 20911 lists possession, production, and distribution but not viewing. Attempt to do is listed elsewhere. Certainly SORNA is meant to be expansive. Query, is an attempt to view a registration offense under SORNA? Is there actually some ambiguity. We'd be happy to hear from those more informed. "Appellant’s case is before this court for the sixth time" begins the current decision in United States v. Rodriguez.
2013: Guilty (mixed pleas/members) to 15 specifications of violating a lawful general regulation; one specification of violating a lawful order; one specification of making a false official statement; one specification of consensual sodomy; two specifications of obstructing justice; and two specifications of adultery, one specification of aggravated sexual assault by causing bodily harm;4 one specification of abusive sexual contact by causing bodily harm; one specification of nonforcible sodomy;6 one specification of aggravated sexual contact by using strength; one specification of wrongful sexual contact; and one specification of indecent exposure. Sentenced to 27 years, DD, TF, RiR. 2015: Remand to correct post-trial errors. 2016: AFCCA dismisses several of the convictions and remands for a new sentencing hearing. 2017: Members sentence him to six years, DD, TF, RiR. 2019: CAAF sends back to AFCCCA on a Hills issue. 2020: TJAG sends back for rehearing; but that was "impractable" so CA approves six years, BCD, TF, RiR. 2021: AFCCA sends back down for post-trial errors. 2022: Back to AFCCA which affirms four years, BCD, TF, RiR. An alert reader noticed we'd not yet posted about (the unpublished opinion in) Goldsmith--the case is of some consequence. May be a CAAF candidate. Appellant's issue #3 is worthy of note. "[T]he military judge erred in considering certain matters in a victim’s unsworn statement[.]" A military judge sitting as a general court-martial convicted Appellant, in accordance with his pleas and pursuant to a plea agreement, of three specifications of willfully disobeying a superior commissioned officer, one specification of wrongfully discharging a firearm under circumstances to endanger human life, one specification of communicating a threat, two specifications of assault consummated by a battery, and four specifications of domestic violence in violation of Articles 90, 114, 115, 128, and 128b, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 890, 914, 915, 928, 928b. After the military judge announced Appellant’s sentence, the convening authority withdrew and dismissed one specification of attempted murder in violation of Article 80, UCMJ, 10 U.S.C. § 880, and one specification of domestic violence in violation of Article 128b, UCMJ, as required by the plea agreement. The military judge sentenced Appellant to a dishonorable discharge, confinement for 84 months, reduction to the grade of E-1, and a reprimand. The convening authority approved the sentence in its entirety, but deferred Appellant’s reduction in grade until judgment was entered and waived Appellant’s automatic forfeitures for a period of six months. So what was the problem?
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. 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." |
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