​This case stems from an interlocutory appeal under Article 62, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 862 (2018). At a rehearing in this case, the military judge denied the Government’s motion to admit Appellant’s testimony from his original court-martial. We hold that the military judge abused his discretion by excluding this evidence. Because the United States Navy-Marine Corps Court of Criminal Appeals (CCA) reached the same conclusion, we affirm the judgment of the lower court.
. . .
​The Government then moved to admit Appellant’s testimony from his first trial under Military Rule of Evidence (M.R.E.) 801(d)(2) as an admission by a party opponent. Citing the standards imposed by relevant case law, the Government argued that the “testimony was not induced by the Government’s use of wrongfully introduced evidence nor was it the result of ineffective assistance of counsel.” The defense opposed the Government’s motion, asserting that Appellant’s prior testimony “was induced by the Government’s actions and it [was] unfairly prejudicial.”

As the CCA noted in its decision, “neither trial counsel nor the military judge asked any further questions of LT Alpha” to rehabilitate him. Id. And yet later in the process, “the trial counsel [mistakenly] made arguments regarding the [defense] challenge for cause that suggested a rehabilitation colloquy had been conducted, and the military judge ​adopted those incorrect facts and based his denial of the [defense] challenge [for cause] upon them.” Nevertheless, the CCA did “not find that the trial counsel intentionally misled the military judge as to LT Alpha’s answers.” Instead, the lower court found that trial counsel made an “honest mistake.” But because of this prejudicial error, the court set aside and dismissed the findings and sentence and authorized a rehearing.

There is a “general evidentiary rule that a defendant’s testimony at a former trial is admissible in evidence against him in later proceedings.” Harrison, 392 U.S. at 222). As explained by the Supreme Court:

     A defendant who chooses to testify waives his privilege against compulsory self-incrimination with respect to the testimony he gives, and that waiver is no less effective or complete because the defendant may have been motivated to take the witness stand in the first place only by reason of the strength of the lawful evidence adduced against him.

However, the Supreme Court announced an exception to this general rule: If the government engaged in illegal conduct and this conduct prompted the accused’s testimony, the government may not use “any testimony impelled” by this illegality because it is “the fruit of the poisonous tree.” Id. Thus, under Harrison, an accused’s testimony at a prior trial is admissible at a subsequent trial unless (1) the government engaged in illegal conduct at the first trial, and (2) the government’s illegal conduct induced the accused’s prior testimony. See id.

The sole assigned issue in this appeal is “[w]hether attempted conspiracy . . . is a viable offense under the UCMJ.” Consistent with our holding in United States v. Riddle, 44 M.J. 282, 285 (C.A.A.F. 1996), we answer this question in the affirmative. We therefore affirm the judgment of the United States Air Force Court of Criminal Appeals (AFCCA).

​ In short, Appellant informed JM that she wanted to kill her husband to obtain the benefits of a life insurance policy. Appellant and JM agreed to meet in a Walmart parking lot so that JM could supply Appellant with a substance for poisoning her husband. When they met, Appellant paid JM $100, and JM provided Appellant with a clear plastic bag containing a white substance that JM said was fentanyl. Appellant did not know that JM was working as an informant for Air Force investigators and that the substance JM provided was not actually fentanyl.

Appellant argues that the United States Air Force Court of Criminal Appeals (AFCCA) erred in affirming a judgment that he sexually assaulted a fifteen-year-old girl. Appellant asserts the AFCCA erred in conducting its factual sufficiency review by requiring him to prove his mistake of fact defense with “direct evidence.” We agree that certain language in the AFCCA’s opinion supports Appellant’s argument. We therefore set aside the AFCCA’s decision and remand the case for a new factual sufficiency review.

Regarding the “inappropriateness to allow [the] privilege,” courts have held that the privilege should not act as both a “sword” and a “shield.” In other words, the privilege holder may not use it to disclose evidence “to establish advantageous facts and then invoke the privilege to deny the evaluation of their context, relevance, or truth—thus turning the privilege from a shield into a sword—a circumstance the waiver rule’s broader language seeks to avoid.” Regarding appropriateness, practitioners should consider the perceived intent behind the communication when it was made and for what purpose

In Richards, Judge Hardy, writing for the Court, does two main things: reiterate the need for the government to prove every single element of an offense, and provide a framework which practitioners can use to determine if something is prejudicial to good order and discipline. United States v. Richard, __M.J.­­__, No. 22-0091/AF, 2002 CAAF LEXIS __ (C.A.A.F. Sept. 7, 2022).

Appellant was convicted of three specifications of violating Article 134, UCMJ, and one specification of violating Article 128, UCMJ. For the Art. 134 charges, the Government had to prove two elements: “(1) that Appellant knowingly and wrongfully produced, possessed, or distributed child pornography; and (2) that under the circumstances, the Appellant’s conduct was to the prejudice of good order and discipline in the armed forces.” Id. At trial, the government relied on Appellant’s military status, his location on a military installation, and use of “resources he received from the military to effectuate the commission of his crimes” to prove the second element of Art. 134, UCMJ. Brief for Appellee at 15, United States v. Richards, No. 22-0091 (C.A.A.F. Apr. 25, 2022). The CAAF said definitively that this was not enough. While finding that “the Government failed to proffer any evidence that Appellant’s misconduct had any negative effect- indeed, any effect at all- on the good order and discipline of the armed forces,” the Court solidified that evidence of actual harm is required to prove the element of prejudicial to good order and discipline. Richards, 2002 CAAF LEXIS __ (C.A.A.F. Sept. 7, 2022).

In an important reminder for trial counsel, Judge Hardy states that the “constitutional mandated” to prove beyond a reasonable doubt every element of the charged offense “applies just as much to the terminal element of Art. 134, UCMJ, as it does every other element of a criminal offense. Id. 

The Court spends a large section of the 15-page decision, as does Judge Maggs’ concurrence, discussing the definition, or lack thereof, of the phrase prejudicial to good order and discipline. “The Government’s expansive view of the scope of conduct that is ‘to the prejudice of good order and discipline’- essentially that any misconduct that has a nexus to the military qualifies- suggests that it might be necessary for us to better define such conduct, something that would be well within this Court’s authority to do so.” Id. After going through some history, the Court settles on the definition given by Colonel William Winthrop in 1895: “The misconduct must be activity against ‘good order’ which affects the ‘condition of tranquility, security, and good government of the military service.’”

The government cited to a few cases, primarily United States v. Davis, 26 M.J. 445, 448 (C.M.A. 1988), to suggest that unlawful conduct coupled with the use of government resources to tangentially further that crime prejudices good order and discipline.  The Court explicitly states that it does not overrule Davis, but it does state “[t]o whatever extent older cases suggest that prejudice to good order and discipline can be assumed or implied based on the misconduct of the accused, those cases have been overruled.” Richards, 2002 CAAF LEXIS __ (C.A.A.F. Sept. 7, 2022).
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The CAAF overturned AFCCA and the trial court’s decision and found that the case was not legally sufficient as to the three specifications of Art. 134, UCMJ. The case was remanded for further proceedings. For the field, the take aways are: the government must prove every element of the charged offense and the phrase “prejudicial to good order and discipline” means something. 

If Washington and de Saxe are correct that discipline forms the soul of a military, then the United States military seems to be experiencing a spiritual crisis. Increasingly, the public perceives the military term of art “good order and discipline” not as representing a core principle of military effectiveness, but as rhetorical “chaff” military leaders use to voice their opposition to proposed reforms without actually communicating anything. In recent years, military leaders have employed the term to voice their opposition to a number of proposed personnel, social, and legal military reforms, and they have done so without clearly explaining what good order and discipline is or why it requires a certain position on these policies. In most cases, the military ultimately enacted those reforms without any measurable negative effect on good order and discipline. As a result, the linguistic impact of the term has come under fire from Congressional leaders and the media. This battle over the meaning and weight of the good order and discipline rationale has played out most recently in calls for military justice reform.

​ This Article then ties the developments regarding Article 134 to a larger issue: the military’s difficulty in defining what good order and discipline means. To address this situation, this Article proffers a comprehensive definition of the term that military leaders can use to specifically ground their positions and proffers that the military justice system can better specify what conduct is and is not prohibited under Article 134.

However, persisting issues continue to raise the question of whether the contours of the “good order and discipline” term are really understood, or, as the dissent [in Parker v. Levy] held (sic), whether the military has changed to the extent that good order and discipline now represents a nebulous concept.

​R.C.M. 914 requires the government to make available to the defense, after a witness has testified, any statement possessed by the United States that the witness has made. In its opinion, the lower court agreed that the military judge erred in her application of R.C.M. 914. However, the lower court determined that the error did not substantially influence the findings.

After review of the record, we conclude that the military judge’s error in not striking the relevant testimony pursuant to R.C.M. 914 had a substantial influence on the findings. Consequently, the lower court’s decision is reversed and the findings and sentence are set aside.

The military judge granted Appellant’s motion, and the Government filed an interlocutory appeal with the United States Army Court of Criminal Appeals (ACCA) which reversed. Appellant appealed the ACCA’s decision to this Court, and we reverse again. The military judge did not abuse his discretion in holding: (1) PFC Avery lacked common authority to consent to the search of Appellant’s phone; (2) the Government failed to prove that the evidence was subject to the inevitable discovery doctrine; and (3) Appellant’s later voluntary consent to search the phone was not sufficiently attenuated from the unlawful search to cure that error.

“Whether the Army Court erred in its abuse of discretion analysis by (1) creating a novel test for common authority, (2) failing to give deference to the military judge’s findings, (3) comparing a modern cell phone to a traditional “container,” and (4) finding error based on a difference of opinion.”

Because we are aware of no binding precedent that equates physical access with common authority or that requires express or actual restrictions on use, we disagree that the military judge misapplied the law.
 
Neither the Supreme Court nor this Court has ever held that the scope of a person’s common authority over property is coextensive with that person’s access to the property. If that were true, determining whether common authority existed would be trivial. The only question would be whether the person who consented to the search had access to the searched property. Under the Government’s theory, a property owner would “assume the risk” that another person might provide consent to an unlimited search by law enforcement simply by giving that person limited, temporary possession over their property. Yet that is not how the analysis in common authority cases proceeds.
 
In Rader, this Court expressly rejected the idea that the owner of a computer that was also used by a third party could not limit the scope of the third party’s access to certain applications or files. 65 M.J. at 34. And although the Court recognized that one way of restricting access was through the use of technological restraints such as passwords or encryption, we also acknowledged that courts should consider “whether the defendant otherwise manifested an intention to restrict third-party access.” Id. (internal quotation marks omitted) (citation omitted). Accordingly, even though Appellant had not password protected or encrypted the photo galleries containing the child pornography, that does not mean that Appellant could not have excluded those galleries from the scope of PFC Avery’s common authority.
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[…] Although we might have reached a different conclusion than the military judge in the first instance, we are mindful that there must be more than a mere difference of opinion to establish an abuse of discretion. The military judge’s decision was not based on clearly erroneous facts, and it was not “arbitrary, fanciful, clearly unreasonable, or clearly erroneous.” Solomon, 72. M.J. at 179 (internal quotation marks omitted) (citation omitted). The military judge did not exhibit an erroneous view of the law, and he did not abuse his discretion in suppressing the evidence obtained from Appellant’s phone.”

Jake Dianno

Jake is a 2L at Villanova Law who is externing with NIMJ.

​[W]hether Appellant’s right to be confronted by a complaining witness was violated when trial counsel misled Appellant’s son by telling him that Appellant was not watching his son’s remote live testimony. Because Appellant failed to preserve this issue at trial, the Court must decide whether any error was plain or obvious. We hold that it was not.

​The Government more reasonably argues that Appellant waived this issue by operation of law under the plain language of Rule for Courts-Martial (R.C.M.) 905(e) (2016 ed.). That rule provides that such claims “must be raised before the court-martial adjourned for that case and, unless otherwise provided in [the Manual for Courts-Martial, United States], failure to do so shall constitute waiver.” R.C.M. 905(e). We acknowledge that the language of the rule would appear to be dispositive on this point in the Government’s favor, but as this Court has recognized in the past, there has long been disagreement in our own precedent about whether the word “waive[d]” in R.C.M. 905(e) actually means “waived” (as defined by the Supreme Court in Olano, 507 U.S. at 733), or instead means “forfeited” (the failure to preserve an issue by timely objection). See Hardy, 77 M.J. at 441–42 (noting the disagreement in this Court’s precedents); id. at 445 (Ohlson, J., dissenting) (same). Two of our more recent precedents lead us to conclude that regardless how one interprets the word “waive[d]” in R.C.M. 905(e), that rule does not extinguish a claim when there has been plain error.

Nathan Freeburg, a guest post.

Readers are invited to offer guest posts by emailing us at admin@nimj. org.