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:
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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. Greer is back again after a remand to correct post-trial errors. Appellant pled guilty to one A&B and was sentenced to 60 days, RiR, BCD, and a reprimand. The court now takes up one of four errors and grants relief: is there "a substantial basis in law or fact to question Appellant’s plea of guilty to striking CG with his “hands.”" The question arises because there are some inconsistency in whether Appellant was admitting to assault with one hand or both--singular or plural. During providency the Appellant asserted he lacked a memory of what he did or said due to alcohol. But he agreed he did commit an A&B based on his review of the evidence against him. (A "drunk" plea is OK, with the proper statements during providency. See, e.g., United States v. Moglia, 3 M.J. 216, 218 (C.M.A. 1977) (inability to recall the facts relating to an offense does not preclude entering a plea of guilty if is convinced of guilt); United States v. Luebs, 20 U.S.C.M.A. 475, 43 C.M.R. 315 (1971); United States v. Butler, 20 U.S.C.M.A. 247, 43 C.M.R. 87 (1971); United States v. Wiles, 30 M.J. 1097, 1100 (N.M.C.M.R. 1989).) We find the military judge’s colloquy with Appellant did raise a substantial basis to question the providency of Appellant’s guilty plea to striking CG with his “hands” rather than one hand, and that the military judge abused his discretion by accepting Appellant’s plea without modification. In order to find the guilty plea provident, a military judge must establish that the accused believes he is guilty of the offense to which he pleaded. See Murphy, 74 M.J. at 308. In this case, Appellant told the military judge that he could not remember the offense, but he believed he used one hand to strike CG, rather than both hands as charged and pleaded. Having developed this discrepancy, the military judge failed to resolve it. Indeed, the military judge’s comments as he transitioned to a discussion of potential defenses acknowledged that Appellant was only “potentially” guilty of using both hands, but possibly only used his “dominant hand,” and that Appellant was “telling” the military judge he used his dominant hand. We note that CG noticeably suffered injuries to the left side of her face and body, suggesting that Appellant was swinging at her with his right arm as he faced her. However, what is most significant is that the military judge elicited that Appellant doubted the specification he pleaded to accurately described what actually happened. This is more than the mere possibility of a conflict. See Watson, 71 M.J. at 58. The court finds that it can affirm guilt by one hand which does not violate the terms of the PTA, and upon sentence reassessment affirms the sentence. On the issue of post-trial delay, the court said, After the parties filed their original briefs, this court decided United States v. Livak, 80 M.J. 631 (A.F. Ct. Crim. App. 2020). Specifically, Livak established an aggregated 150-day standard for facially unreasonable delay from sentencing to docketing with the Court of Criminal Appeals for cases referred to trial on or after 1 January 2019. [W]e find no facially unreasonable delay under the Moreno and Livak thresholds. Because the CAAF has never held that the specific time standards in Moreno were the exclusive means by which an appellant could demonstrate facially unreasonable delay, we have considered whether the actual delays in this case were facially unreasonable. We find the Government exercised a reasonable degree of diligence. Finally, recognizing our authority under Article 66(d), UCMJ, 10 U.S.C. § 866(d), we have also considered whether relief for excessive post-trial delay is appropriate in this case even in the absence of a due process violation. In United States v. Novelli, the appellant pled guilty to various drug related offenses: cocaine, marijuana, psilocybin, Valium, Xanax, and steroids. He was sentenced to 600 days plus a BCD for which he got 236 days Allen credit. He raised four issues.
1. Error in the EoJ--corrected in the court's decretal paragraph. 2. Unreasonable multiplication. 3. Improper TC sentencing argument. (A common issue in AF cases as to both findings and sentence.) 4. Inappropriate sentence. The decretal paragraph remands the case for corrections of the EoJ. In United States v. Monge, the appellant was convicted by an "enlisted" panel of indecent visual recording and distribution of an indecent visual recording and he was sentenced to 60 days HLWC and a DD. Appellant raises several issues, none of which get him relief.
(1) The evidence was legally and factually sufficient to support his convictions for sexual assault and assault consummated by a battery; and (2) Appellant was deprived of his right to a unanimous verdict. United States v. Burnett. Officer members convicted Appellant of one sexual assault, for which they sentenced him to two months, TF, RiR, and a DD. Appellant raises 14 issues for our consideration on appeal: (1) whether the evidence is legally and factually sufficient to support his conviction; (2) whether the military judge erred by failing to give a proper instruction on the affirmative defense of involuntary intoxication; (3) whether trial defense counsel were ineffective by failing to research or request a proper instruction on involuntary intoxication; (4) whether the military judge erred by failing to give a proper limiting instruction upon the admission of human lie detector evidence; (5) whether trial defense counsel were ineffective by failing to appreciate the prejudicial effect of human lie detector evidence and failing to request a limiting instruction; (6) whether the military judge erred by failing to give a timely and proper limiting instruction regarding evidence of Appellant’s prior waiver of an administrative discharge board; (7) whether trial defense counsel were ineffective by failing to appreciate the prejudicial effect of evidence of Appellant’s discharge board waiver and failing to request a limiting instruction; (8) whether the military judge abused his discretion by admitting testimonial hearsay; (9) whether a witness immunity letter issued by the convening authority amounted to unlawful command influence; (10) whether trial counsel engaged in prosecutorial misconduct during argument on findings; (11) whether trial defense counsel were ineffective by failing to object to trial counsel’s argument; (12) whether Appellant was wrongfully denied credit against his sentence for nonjudicial punishment he previously received for the same offense for which he was convicted; (13) whether Appellant is entitled to relief for cumulative error; and (14) whether the military judge abused his discretion by limiting the time allotted for closing argument. United States v. Deontre White. An MJ convicted the appellant of two abusive sexual contacts and two communications of indecent langauge, for which he was sentenced to four months, RiR, a BCD, and a reprimand. One of his issues asked whether the indecent language conviction was factually and legally sufficient. No, says a majority of the panel. In reading the facts I was reminded of a few lines from "Pink Floyd, The Wall." Teacher: What have we here, laddie? Mysterious scribblings? A secret code? No! Poems, no less! Poems, everybody! The language and context are quite suggestive. Appellant then asked SSgt CR if she liked poetry and if she would like to hear a poem he had written. SSgt CR said, “sure,” and Appellant began reading. As Appellant read the poem, SSgt CR perceived that it “was very sexually explicit,” so she stopped Appellant and told him, “I’m sorry. I did not realize the contents of this poem.” SSgt CR testified that she thought the poem was about “a sexual encounter that he had with a woman,” but she did not have any impression regarding whether the encounter was portrayed as consensual or not. At Appellant’s court-martial, SSgt CR only recalled two brief excerpts from the poem. The first was, “just stick the tip in,” and the second was, “[m]y hands down her pants touching her c*******.” It would appear the Appellant liked to read his poems at work. TSgt SD did not recall if Appellant asked her to listen to the poem or if her husband, SSgt SD, who worked in the same area, told her to come listen to Appellant read it. TSgt SD testified that she and SSgt SD were there for the reading, as well as her supervisor TSgt M and her co-worker SSgt EG. Before he began reading, Appellant told the group that the poem “could be read from either a female’s perspective or a male’s perspective.” Once Appellant said the word “c*******,” TSgt SD walked away because she felt uncomfortable and “didn’t want to be around that.” TSgt SD did not say how long she listened to the poem, but she described the portion she heard as “quick.” The issue was whether the words and reading was contrary to GoD, for example, When SSgt EG was asked how the reading affected good order and discipline in the unit, she answered, “It’s hard to say.” She explained that while inappropriate, the reading “didn’t bother [her],” but “[i]f you’re making people that you work with uncomfortable and maybe someone doesn’t have tough skin, that could break[ ]down like trust and stuff like that and being able to work and get the mission done.” The court describes the third element of the offense, that it “refers only to acts directly prejudicial to good order and discipline and not to acts which are prejudicial only in a remote or indirect sense.” 2016 MCM, pt. IV, ¶ 60.c.(2)(a). As explained in the Manual for Courts-Martial, “Almost any irregular or improper act on the part of a member of the military service could be regarded as prejudicial in some indirect or remote sense; however, this article does not include these distant effects. It is confined to cases in which the prejudice is reasonably direct and palpable.” Id. The requirement to prove this third element “filters out from punishment language that is colloquial vocabulary and may be routinely used by service members.” United States v. Negron, 60 M.J. 136, 144 (C.A.A.F. 2004). The court went on to say We conclude the findings of guilty for the two indecent-language specifications are neither legally nor factually sufficient. We first note the dearth of evidence in the record establishing what Appellant actually said when he read his poem. C.J. Johnson dissents in part and in the result. I acknowledge the Government was not able to introduce the exact text of the sexually explicit poem Appellant read to several noncommissioned officers (NCOs) in their workplaces in August 2018, and that the four witnesses who testified about Appellant’s indecent language had imperfect memories of the incidents. However, I find the witnesses’ testimony to be generally credible and, importantly, not significantly inconsistent. Taken together, the testimony of Staff Sergeant (SSgt) CR, Technical Sergeant (TSgt) SD, SSgt EG, and SSgt SD demonstrates Appellant’s poem described the perspective of someone pursuing unwanted sexual activity with an unwilling female, including references to touching her b****** and genitalia, and including specific phrases to the effect of “rubbing her c***” and “just stick the tip in.” C.J. Johnson's final words are, The majority asserts they are not willing to “broadly paint any discussion of sexual conduct among adults as indecent language under a theory that someone, somewhere might be aroused by it.” Neither am I. However, the definition of indecency does not require the language to be actually or potentially sexually arousing. I also agree that many things that are inappropriate to say in the workplace are not “indecent.” However, language that is grossly offensive to propriety because of its vulgar nature and violates the standards of the military community is, by definition, indecent. Cheers, Phil CaveIn Dixon, the Appellant was convicted MJA of one housebreaking and one communicating a threat, and he was sentenced to one year, and a BCD, and a reprimand. Note 4 tell us that the Appellant was also was charged with two sexual assaults which were dismissed w/o prejudice prior to arraignment. He was acquitted of an indecent exposure. 1. At first the Appellant pled G to housebreaking and NG to communicating a threat. The MJ was unhappy with the providency of the housebreaking, so everyone took a break. 2. Appellant entered a plea of G to an LIO of unlawful entry. The court notes the MJ never entered a finding on this offense. 3. The Government elected to prosecute both the housebreaking and communicating a threat. The MJ found Appellant guilty of both. Appellant raises five issues on appeal: (1) whether Appellant’s guilty plea is improvident because unlawful entry is not a lesser-included offense (LIO) of housebreaking; (2) whether the evidence is legally and factually sufficient to support Appellant’s conviction for communicating a threat; (3) whether the evidence is legally and factually sufficient to support Appellant’s conviction for housebreaking; (4) whether the recklessness mens rea for communicating a threat under Manual for Courts-Martial, United States (2016 ed.) (2016 MCM) 5 violates the First Amendment of the United States Constitution; 6 and (5) whether Appellant is entitled to sentence relief because he received nonjudicial punishment under Article 15, UCMJ, 10 U.S.C. § 815, for the same offense for which he was sentenced at trial.7 Because we resolve the first three issues in Appellant's favor and set aside the findings and sentence, we do not reach the remaining issues. Communicating a threat required proof BRD of, (1) Appellant communicated certain language to AG expressing a present determination or an intent to wrongfully injure her reputation, presently or in the future, by alerting MTLs to her violation of AETC dormitory rules. (2) the communication was made known to AG or to a third person. (3) the communication was wrongful. (4) under the circumstances, Appellant’s conduct was prejudicial to good order and discipline. A defense is that the "circumstances reveal that the communication was made “in jest or for an innocent or legitimate purpose” so the communication is not wrongful. See Rapert, 75 M.J. at 169." AFCCA observes that, "In United States v. Whitfield, ARMY 20130212, 2015 CCA LEXIS 184 (A. Ct. Crim. App. 14 Apr. 2015) (unpub. op.) (per curiam), rev. denied, 75 M.J. 32 (C.A.A.F. 2015), the appellant threatened to reveal another soldier’s misconduct to her chain of command. The ACCA found "that “appellant’s threat to truthfully reveal [the victim’s] misconduct to the chain of command falls short of the requirement that appellant’s communication be ‘wrongful."" But see, United States v. White, 62 M.J. 639 (N.M. Ct. Crim. App. 2006), rev. denied, 64 M.J. 225 (C.A.A.F. 2006), which AFCCA distinguishes. Accordingly, AFCCA sets aside the communicating a threat conviction. On to housebreaking. The AFCCA sets aside the housebreaking conviction and holds that unlawful entry is not an LIO of housebreaking because unlawful entry requires the GoD element not found in housebreaking. And, citing Coleman that “[T]he terminal element of an Article 134, UCMJ, offense is not inherently included within other elements and is instead a separate and distinct element that the [G]overnment must prove.” United States v. Coleman, 79 M.J. 100, 104 (C.A.A.F. 2019). Appellant was not charged separately with unlawful entry. Relying on United States v. Nealy, 71 M.J. 73 (C.A.A.F. 2012) and United States v. Girouard, 70 M.J. x, 10 (C.A.A.F. x), the AFCCA finds an accused can't be convicted because " due process “does not permit convicting an accused of an offense with which he has not been charged” and ‘“the Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged’” (citation omitted) (quoting Patterson v. New York, 432 U.S. 197, 210 (1977))." Accordingly, the AFCCA sets aside the unlawful entry plea because a court-martial has no jurisdiction to enter findings for an offense not charged. Judge Key concurs in part and in the result. Judge Key notes that the proper charge was extortion. Keep in mind that even though the AFCCA dismissed the charges with prejudice, the question then becomes, has the Appellant been in jeopardy on the extortion, or for that matter the unlawful entry? Thoughts? Also, Judge Key concludes, in my words, that on the facts of this case the discussion about unlawful entry being an LIO is an advisory opinion and he "do[es] not subscribe to the majority's analysis on this point." Cheers, Phil Cave.An "enlisted" panel convicted Martinez of sexual assault and an attempted sexual assault. He was sentenced to six years, TF, RiR, and a DD. Of 11 issues, the motion for the MJ's recusal is the most interesting. Appellant argues the military judge was biased against the lead trial defense counsel, and the military judge should have therefore recused himself from Appellant’s court-martial. Appellant argues as a second basis for relief that the military judge should have recused himself based upon the appearance of bias on the military judge’s part. As a remedy, Appellant asks us to set aside the findings and sentence. In support of his argument, Appellant cites to a number of events occurring both before and during his court-martial; we only address the most significant events raised. It appears that in the motion for a mistrial, after findings, The Defense advanced two grounds: (1) inadequate notice with respect to the specification alleging an attempted sexual assault on Ms. ES (and relatedly, a perceived incongruity between a conviction for that offense and an acquittal for abusive sexual contact arising out of the same conduct), discussed in greater detail in Section II.D., infra; and (2) disparate treatment of the parties by the military judge. With respect to the second ground, trial defense counsel asserted there were “countless examples” of such disparate treatment, but they specifically referred to three instances they believed supported their argument: (1) discovery related to opening and closing slides; (2) objections to the Defense’s opening statement regarding the military judge’s Mil. R. Evid. 412 ruling; and (3) selective enforcement of the military judge’s scheduling order. At one point, the court opines, While many aspects of the interaction between the military judge and trial defense counsel may be subject to valid criticism, we conclude the record does not support a conclusion the military judge abused his discretion in not recusing himself. There are numerous events during the trial worth considering for the future. But, The military judge was also quick to lecture the Defense about following his rulings, asking rhetorically at one point, “Do people not care what my rulings are if they’re going to sort of go around them?” This question, of course, came in the middle of a longer critique of the Defense which had been initially spurred by the military judge’s erroneous recollection of his own written Mil. R. Evid. 412 ruling. Rather than admit his error, the military judge suggested the ruling was just “inartfully drafted,” sua sponte reconsidered the ruling “to provide a little bit more clarity,” and sustained two of the Government’s objections to the Defense’s opening statement—even though that opening statement fell within the bounds of the military judge’s original ruling. But, Government counsel, on the other hand, largely escaped unscathed. For example, when trial counsel suggested trial defense counsel had engaged in “bad lawyering”—a comment flowing from trial counsel’s incorrect recollection of the military judge’s written Mil. R. Evid. 412 ruling—the military judge charitably referred to the comment as “a momentary lapse of hyperbole, an emotion based on a contentious issue.” When trial counsel defied the military judge’s ruling prohibiting evidence of Ms. ES’s prior allegations of sexual assault, the military judge not only allowed Ms. ES’s arguably false answer to stand, but he simply told trial counsel to “tread lightly” and “be more careful than ever.” There also did not appear to be a reaction to a comment in a Government motion along the lines of, "General gripes about the Government’s charging in this case may be therapeutic to express in a motion, but they do not give rise to the requested remedy."
Ultimately the Appellant got some relief with one charge set-aside without prejudice (based on an instructional error) and the sentence was set-aside. United States v. Simmons. His third appearance brings him some sentence relief. An officer panel originally convicted of four sexual assaults of a child, extortion, and producing CP. He was sentenced to 12 years, TF, RiR, and a DD in 2017. On his first look at AFCCA, the case was returned for posttrial errors. On reappearance, the AFCCA affirmed 11 years, 11 months, and 20 days confinement because of posttrial delay. CAAF set aside the finding of guilty for extortion in United States v. Simmons, __ M.J. ___, 2022 CAAF LEXIS 205 (C.A.A.F. 2022). Appellant timely appealed the decision of the CCA and this Court granted review of the following issue: The defense vigorously objected to the Government’s motion, arguing that “during the government’s case-in-chief, they failed to elicit any testimony that the extortion occurred during [the] time period [originally charged] . . . . And so the amendment here, this major change here, is made to cure a defect in their presentation of the evidence.” The defense further stated: “Now our particular concern here, one, is of a notice type nature, particularly given that the government is moving to amend the charge sheet, . . . basically [just] before instructions [begin].” The civilian defense counsel also argued that “the dumping [of] 250 pages of text messages on me the night before trial, . . . hardly constitutes notice,” and that he might have cross-examined the complaining witness differently if the Government had acted in a timely manner. In addition, the defense noted that by enlarging the charged time frame, the Government was now alleging that Appellant extorted CL when she was still a minor, and although age is not an element of the offense, her young age made the alleged offense “absolutely more serious” and could result in “an enhanced sentence.” For these reasons, civilian defense counsel concluded, the Government’s proposed amendment to the charge sheet was “highly prejudicial.” Simmons, Slip op. at 4. The AFCCA then reassessed the sentence and affirmed confinement of nine years, 11 months, and 20 days.
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