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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In in re Kawai, a pro se petition, On 29 January 2022, Petitioner requested this court grant him extraordinary relief in what he styled as a “Motion for Compassionate Release and Reduction in Sentence,” pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), and the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018). This court received, by mail, Petitioner’s request on 2 March 2022, and docketed his petition on 11 March 2022; the Court did not order briefs by the Government or Petitioner in response. We conclude we do not have jurisdiction to adjudicate Petitioner’s request and deny the petition. The petitioner was convicted in 2001 of various offenses related to his killing of another Airman. He is now at the U.S.P., Atwater, CA. On 15 April 2021, Petitioner requested that the Federal Bureau of Prisons (BOP) make a motion on his behalf for a sentence reduction pursuant to the “extraordinary or compelling circumstances element codified in 18 U.S.C. § 3582(c)(1)(A)(i).” Petitioner argued he was a good candidate for compassionate release based on (1) the coronavirus disease 2019 (COVID-19) pandemic; (2) his age at the time his crimes were committed; (3) his lengthy term of imprisonment; (4) his rehabilitation efforts; and (5) his belief that he was not a public safety risk. On 25 May 2021, the BOP denied his request, stating that “[r]eleasing [Petitioner] prior to the completion of [his] sentence would greatly minimize the severity of the offense” and after considering the above factors, it “determined that [his] release would pose a danger to the safety of others or the community.” n.3. As a collateral impact of courts-martial being ad hoc tribunals there is a problem. Petitioner’s request for compassionate release under these particular statutes is a case of first impression for this court. However, while Petitioner did not style his request as a writ of habeas corpus, we will treat his petition as analogous to such in order to resolve the question of whether we have jurisdiction. The problem for Petitioner is the review of a motion for compassionate release is jurisdictional. “A motion to file for compassionate release can only be brought before the sentencing judge.” Ferguson v. United States, No. 1:22-cv10542, 2022 U.S. Dist. LEXIS 50986, at *2 (E.D. Mich. 21 Mar. 2022). Yet, “[g]eneral courts-martial are ad hoc proceedings which dissolve after the purpose for which they were convened has been resolved.” Witham v. United States, 355 F.3d. 501, 505 (6th Cir. 2004). Because Petitioner’s court was dissolved after his case, and because his case is final under Article 76, UCMJ, there is no sentencing court within the military service courts in which Petitioner may bring a motion under 18 U.S.C. § 3582(c)(1)(A)(i). Query: If Congress created standing military trial courts, coulld it avoid a problem for future 'Kawai's?' However, Congress has charged federal district courts with exercising jurisdiction over habeas corpus petitioners who are imprisoned as a result of court-martial convictions. See Burns v. Wilson, 346 U.S. 137, 139 (1953); Chapman, 75 M.J. at 601; see also Gilliam v. Bureau of Prisons, No. 99-1222, 2000 U.S. App. LEXIS 3684, at *3 (8th Cir. 10 Mar. 2000) (unpub. op.). Federal district court is also the proper venue for Petitioner’s motion. See Owens, 2020 U.S. Dist. LEXIS 61460, at *2. Cheers.In United States v. Jackson, an "enlisted" panel convicted Appellant of four A&B on his spouse, three assaults on an intimate partner, and two failures to obey firearm registration regulations, for which he was sentenced to three years, RiR, a BCD, and a reprimand. On appeal, his issues included, (1) The assault & battery by grabbing KM’s neck and torso with his arms, as charged in Specification 2 of Charge II, is legally and factually insufficient. (2) The failure to obey a lawful general regulation are legally and factually insufficient because the regulation at issue was not properly published and cannot qualify as a general regulation. (3) TC improperly cross-examined Appellant by referring to Appellant’s attendance at a domestic violence treatment program and by asking him whether the mechanism of injury was consistent with the opinion of an expert witness called by the Government. (4) in a related claim, DC were constitutionally ineffective for failing to timely object to trial counsel’s improper cross-examination of Appellant. (5) The MJ failed to instruct the panel that a guilty verdict must be unanimous was not harmless beyond a reasonable doubt. (6) TC’s sentencing argument was improper because it faulted Appellant for failing to apologize, it appealed to what the “audience” would think, and it asked the members to consider the “trauma” inflicted upon a nonvictim. (7) The MJ erred by instructing the members in sentencing that they will not draw any adverse inference from the fact that Appellant elected to make a statement that was not under oath after the military judge specifically asked the Defense whether it wanted this instruction and the Defense replied it did not. (8) The CA erred by failing to take complete action on the sentence. (9) The CA's reprimand improperly commented on Appellant’s defense at trial and rights against self-incrimination, thereby rendering the reprimand inappropriately severe and in violation of Appellant’s rights under the Fifth and Sixth Amendments6 and Article 37, UCMJ, 10 U.S.C. § 837. (10) Untimely post-trial processing. On the XE and IAC, the court finds, Appellant forfeited claims that trial counsel’s questioning of Appellant was improper by failing to object at trial and that Appellant has not met his burden to demonstrate plain error. The court likewise finds Appellant has failed to show that trial defense counsel were constitutionally deficient by failing to object to trial counsel’s questions put to Appellant on cross-examination. The opinion reads as if the defense opened the door. The defense had proffered a violation of Mil. R. Evid. 404(b). We are not persuaded that Mil. R. Evid. 404(b)(1) is the correct rule to decide this matter. Instead, we look to Mil. R. Evid. 404(a)(2)(A), which governs situations where an accused offers evidence of his character. We also look to the law of impeachment by contradiction. See, e.g., United States v. Sojfer, 47 M.J. 425, 427 (C.A.A.F. 1998). This method of impeachment “involves showing the tribunal the contrary of a witnesses’ asserted fact, so as to raise an inference of a general defective trustworthiness.” United States v. Banker, 15 M.J. 207, 210 (C.M.A. 1983) (first citing 3A John H. Wigmore, Evidence § 1000 (Chadbourne rev. 1970); and then citing Charles T. McCormick, McCormick’s Handbook of the Law of Evidence § 47 (E. Cleary 2d ed. 1972)). On the question of the TC's arguments, I have a question. Is there ever a case when it is in the best interest of the accused that he not make any statement in sentencing? There is at least one, but it's unrelated to the facts of this case. On the CA's reprimand, how should we interpret this part of the reprimand in the context of this case? You have been made aware countless times over the course of your career that domestic violence is both abhorrent and illegal. The fact that you strangled two women you supposedly loved is so cowardly and reprehensible that I struggle to find words powerful enough for a rebuke. This is made even more difficult because you physically assaulted your loved ones just steps away from your child! Given the tearful statements these women made during your sentencing hearing, it is clear that the damage you inflicted upon them is irreparable. That you had the audacity to downplay their obvious physical and emotional harm is not only repugnant, it demonstrates that you feel neither shame nor regret over your actions. Accordingly, you are hereby reprimanded! United States v. Daionte Scott. A military judge convicted the Appellant of two aggravated assaults on a child and sentenced him to 21 months, RiR, a DD, and a reprimand. Appellant’s issue is sentence appropriateness. Appellant contends that his sentence is inappropriately severe in light of the mitigating evidence that he presented regarding his own father’s absence while he was child. Specifically, Appellant argues that his father’s absence left him with “a permanent scar” that caused him to engage in inappropriate behavior when distressed. Additionally, Appellant contends that he did not seek mental health treatment due to the culture in the military of not wanting to appear weak. We are not persuaded by Appellant’s arguments and find that no relief is warranted. Another case exploring some limits on victim impact statements. United States v. Halter. Appellant pled guilty to one specification of assault consummated by a battery, one specification of reckless endangerment, two specifications of assault upon an intimate partner, and an additional specification of assault consummated by a battery. He was sentenced to six months confinement, RiR, a BCD and a reprimand. After returning from post-trial error corrections the court took up four issues. (1) MJ erred by letting the victim present improper victim impact information in the victim’s unsworn statement. (No plain error.) Appellant contends that the MJ erred when he allowed LV to discuss an uncharged offense in her unsworn statement to the military judge. Specifically, Appellant argues that LV’s unsworn statement was focused on threatening comments he made to her after the last incident that were not charged, and additionally, that the threatening comments were not tied to the offenses to which Appellant pleaded guilty. (2) TC committed prosecutorial misconduct during her sentencing argument by arguing that the Appellant should be sentenced based on an uncharged offense. Trial counsel then argued: There being no objection the court looked through the plain error lens and found no error, and even if there was there was no prejudice. Cheers, Phil CaveThe record of trial in Appellant’s case is returned to the Chief Trial Judge, Air Force Trial Judiciary, for correction under R.C.M. 1112(d) to account for the missing audio of the closed session of court, missing Appellate Exhibit VI, and any other portion of the record that is determined to be missing or defective hereafter, after consultation with the parties. The record of trial in Appellant’s case is returned to the Chief Trial Judge, Air Force Trial Judiciary, for correction under R.C.M. 1112(d) to account for the complete and correct version of Prosecution Exhibit 9, complete version of Appellate Exhibit LIX, and any other portion of the record that is determined to be missing or defective hereafter, after consultation with the parties. We received a comment that, Requiring a search authorization to be limited to seizing evidence of only a specific crime seems inconsistent with established caselaw. An authorization to search a residence for a missing person allows the investigators to look anywhere in the residence that a person could be hidden, but allows them to seize any evidence of any crime that they find as long as they find that evidence in a place that a person could be (ie in a closet, not a desk drawer). This ruling is basically saying 'ignore the corpses of dead children, you are only allowed to seize evidence of drug possession' This is a huge change. Wermuth revisits AFCCA after a remand to correct post-trial issues. He will be back for a third. Initially the CA had "failed to take action on the sentence." However, when the case was redocketed, "the re-docketed record of trial contains no [no corrected CA action]. Instead, where this document should appear, there is an 8 September 2021 corrected “Convening Authority Decision on Action” for a different appellant’s case."
The court remands the case back to the field. Prescott was convicted by members of attempted larceny and a false official statement; for which he was Dismissed. Appellant submitted a claim in the Defense Personal Property System (DPS)4 in excess of $32,000.00 for 168 items he claimed had been either damaged or were missing as a result of the move; Appellant received $16,309.22 for his claim.
Appellant raises the following issues (1) Legal and factual sufficiency. (2) Abuse of discretion by permitting the Government to offer evidence of Appellant’s 2011 household goods claim under Mil. R. Evid. 404(b). (3) Improper trial counsel argument on findings. (4) Sentence appropriateness. (5) Commander of Space Operations Command, United States Space Force, lacked jurisdiction to take action on Appellant’s sentence. (6) Do the charged victim’s subrogation and charge-back agreements with its agents render Appellant’s conviction for attempted larceny legally and factually insufficient. (7) Error by granting the Government’s challenge for cause against a court member. (8) The finding of guilty to attempted larceny was ambiguous. (9) The court-martial ceased to be properly convened when 14th Air Force—the convening command—was redesignated Space Operations Command. (10) Unreasonable post-trial delay. (11) The unanimity issue. |
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
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