​Sometimes a seemingly simple statute can be devilishly difficult to interpret. As reflected by the various opinions in this case, that certainly is true with Article 91(3), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 891(3) (2018), which prohibits disrespect towards a warrant, noncommissioned, or petty officer. Nonetheless, this case resolves two key points. First, a majority of this Court holds that an accused servicemember can be convicted under Article 91(3) even if his or her disrespectful conduct occurs outside the physical presence of the victim. Importantly, that means that disrespectful language or behavior towards a warrant, noncommissioned, or petty officer can be criminally actionable even when it is remotely conveyed using a digital device such as a smartphone and even when the disrespectful language or behavior is conveyed via social media. And second, a majority of this Court holds that under Article 91(3), servicemembers can only be held criminally liable if at the time they conveyed the disrespectful language or behavior the victim was then in the execution of his or her office. The reasons for these conclusions are explained below. 

​Therefore, we hold that disrespectful language or behavior towards a warrant, noncommissioned, or petty officer can be criminally actionable even when it is remotely conveyed using a digital device and even when the disrespectful language or behavior is conveyed via social media

​The military judge abused his discretion in denying Appellant’s request for an instruction on the maximum punishment for each individual offense because he did so based on an incorrect understanding of the law. Contrary to the military judge’s apparent understanding, he possessed the discretion to instruct the panel on the maximum punishments available for each individual offense, in addition to informing them of the maximum cumulative punishment available for all offenses. 

​Given the focus placed on the involuntary manslaughter conviction by the Government during sentencing and under the specific facts of this case, we cannot be confident that the military judge’s denial of the requested instruction did not substantially influence the adjudged sentence. 

Once again, this Court is presented with the question whether a novel approach toward the delivery of a victim’s unsworn statement exceeds what the President has authorized under R.C.M. 1001(c)(5), and again we conclude ​that it does. See Edwards, 82 M.J. at 241 (finding reversible error when the military judge allowed the victim’s designee to present his unsworn victim statement in the form of a video slideshow set to background music). Presentation of the victim’s unsworn statement via a question-and-answer format with trial counsel violates the Rules for Courts-Martial because it contravenes the principle that an unsworn victim statement belongs solely to the victim or the victim’s designee. Id. (first citing United States v. Hamilton, 78 M.J. 335, 342 (C.A.A.F. 2019); and then citing Barker, 77 M.J. at 378). 
. . . 
​In Edwards, this Court reaffirmed the principle “that unsworn victim statements belong solely to the victim or the victim’s designee.” 82 M.J. at 246 (first citing Barker, 77 M.J. at 378, and then citing Hamilton, 78 M.J. at 342). We explained that the government may not use unsworn victim statements to supplement its own sentencing arguments, nor may it misappropriate the victim’s statutory right to be heard. Id. By participating in the delivery of the victim statements, the trial counsel in this case violated that principle.

Although the interests of victims and the government often align, we note that this is not always the case. See, e.g., United States v. Horne, 82 M.J. 283, 289-90 (C.A.A.F. 2022) (holding that trial counsel committed unlawful command influence when ​she instructed investigators not to interview the victim’s husband at the special victims’ counsel’s request). 

United States v. Cunningham

​Whether the Air Force Court properly applied United States v. Edwards, 82 M.J. 239 (C.A.A.F. 2022) in finding error—but no prejudice—for a victim impact statement that included videos, personal pictures, stock images of future events, and lyrical music that touched on themes of dying, saying farewell, and becoming an angel in heaven.

​victim impact statement consisted of her orally addressing the military judge while using a PowerPoint slideshow that consisted of pictures, videos, and somber music. The PowerPoint presentation contained eleven slides, including animations which included transitions, appearing and disappearing text, and slides crumpling like paper that is being thrown away. It also included over fifty still images; four still images which were stock images of future life events which ZC would not experience (such as a first day at school, marriage, and graduation); and embedded presentations that automatically played video with accompanying audio. CM then finished her victim impact statement orally. CM stated that “all the slides [she] presented . . . videos, pictures, words . . . all come from [her].”

​In EV v. United States, 75 M.J. 331, 332 (C.A.A.F. 2016), this Court held that it did not have jurisdiction to review a decision of a Court of Criminal Appeals (CCA) at the request of a “victim of an offense” as that term is used in Article 6b, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 806b (2018). Although Congress has since amended Article 6b, UCMJ, and other provisions of the UCMJ, we are compelled to hold again today that this Court lacks jurisdiction to review a petition filed by a victim of an offense. Our decision rests solely on the statutory language of the UCMJ. It does not reflect any policy decision about whether this Court should have statutory jurisdiction, which is a matter solely for Congress. We further see no reason that Congress could not amend the UCMJ to grant this Court jurisdiction to review a petition filed by the victim of an offense. However, as currently written, neither the language of Article 6b, UCMJ, nor any other statute, grants this Court the necessary jurisdictional authority to review a petition filed by a victim of an offense. We therefore dismiss the petition in this case.

United States v. Witt

In 2005, a general court-martial consisting of officer members convicted Senior Airman Andrew P. Witt (Appellant), contrary to his pleas, of one charge and two specifications of premeditated murder; and one charge and specification of attempted premeditated murder. The panel sentenced Appellant to death.
. . . 
[This left] three sentencing options for the panel to choose from: (1) death, (2) life without the option of parole, and (3) life with the option of parole.

​During sentencing proceedings the trial counsel urged the panel members to consider how the sentence they imposed would reflect on them personally and professionally, and suggested that the members would be responsible for any harm Appellant committed in the future. Did the trial counsel’s sentencing argument constitute prosecutorial misconduct that warrants relief?

United States v. Mays

We acknowledge that a distinction can be drawn between the private area of a person and a visual image of the private area of person. But that is not the question in this case. The question in this case is whether the meaning of the term “viewing” in Article 120c(a)(1), UCMJ, is broad enough to cover both viewing the private area and viewing a contemporaneously produced visual image of the private area of a person. For the reasons explained above, we have concluded that it is.

One last point requires attention. Although we hold that the evidence was legally sufficient for the military judge to find Appellant guilty of the two specifications of
attempted indecent viewing in this case, we do not hold or imply that any viewing of images of another person’s private parts violates Article 120c(a)(1), UCMJ. We leave the question of whether Article 120c(a)(1), UCMJ, prohibits viewing a visual image that is not contemporaneously produced for another case.

​United States v. Kim

that Appellant “did . . . commit indecent conduct, to wit: conducting an internet search for ‘rape sleep’ and ‘drugged sleep,’ and that said conduct was of a nature to bring discredit upon the armed forces.”

United States v. Steele

In this second appeal, Appellant raised a new argument with respect to the findings that he had not raised at trial, in his first appeal, or at resentencing. The ACCA, however, declined to consider this new argument because Appellant could not show “good cause for his failure to raise the claim in the prior appeal” and “actual prejudice resulting from the newly-raised assignment of error.” The ACCA adopted this “cause and prejudice” standard in part because federal courts use this standard when hearing successive appeals in habeas corpus litigation. In the sole assigned issue before this Court, Appellant contends that the ACCA’s application of a cause and prejudice standard violated Article 66, Uniform Code of Military Justice. We remand the case for the ACCA to clarify whether Appellant waived or forfeited the issue that he raised for the first time in his second appeal. Answering this question is essential to the resolution of the case[.]

United States v. Lattin

I. Whether the lower court erred when it did not apply the exclusionary rule.

II. Whether the lower court erred when it failed to address a search authorization’s stated expiration date.

United States v. Vargas

At trial the alleged victim began to testify about a statement made to her by Appellant. The defense objected because the statement had not been previously disclosed to the defense in discovery. During the ensuing Article 39(a) session the trial admitted they knew of the statement prior to trial and had learned of the specific statement two days before trial. Trial counsel asserted an “oversight.” The trial counsel was released from further participation in the case. The new trial counsel told the military judge that the prosecution had the information five days before trial. Apparently there had been a motions session to consider evidentiary motions within those five days. 

The defense requested a dismissal or a mistrial. The prosecution requested “(1) allowing the defense to impeach the victim on the issue; (2) granting a continuance to allow the defense additional time to prepare their case; and (3) a limiting instruction preventing the Government from arguing the facts of the previously undisclosed statement.” 
The military judge orally ruled that a mistrial was an insufficient lesser remedy and dismissed with prejudice. 

The ACCA vacated the military judge’s ruling on the grounds that she “failed to impose the least drastic remedy that would have cured the error; as such, dismissal with prejudice was outside the range of alternative choices reasonably arising from the relevant facts and applicable law.” We granted review of the following issue:

     Whether the Army Court erred in its abuse-of-discretion analysis by requiring the military judge to craft the least drastic remedy to cure the discovery violation. 

“ The military judge [had] ordered the dismissal pursuant to Rule for Courts-Martial (R.C.M.) 701(g)(3) after the Government violated its discovery obligations by failing to disclose to the defense a statement made by the alleged victim to investigators before trial. Although R.C.M. 701(g)(3) does not expressly sanction dismissal with prejudice as a remedy for discovery violations, it does authorize military judges to impose a remedy that is “just under the circumstances.”  R.C.M. 701(g)(3)(D). We granted review to determine

     whether the specific remedy imposed by the military judge under that provision in this case—dismissal of the charges with prejudice—was only permissible if that remedy was the least drastic remedy sufficient to cure the Government’s error. ​

out of apparent tension between R.C.M. 701(g)(3)(D) and this Court’s decision in United States v. Stellato, 74 M.J. 473 (C.A.A.F. 2015). Although the plain language of the rule permits any remedy that is “just under the circumstances,” the ACCA interpreted Stellato as mandating that dismissal with prejudice is only available as a remedy if it is the least drastic remedy sufficient to cure the Government’s error. Stellato does not impose such a restriction.​

applying both R.C.M. 701(g)(3)(D) and Stellato, the military judge was required to consider whether any alternatives to dismissal with prejudice were available before imposing that remedy, but was also authorized to reject alternative R.C.M. 701(g)(3)(D) remedies if she found that they were not just under the circumstances. Because the military judge focused on whether dismissal with prejudice was the least restrictive remedy sufficient to cure the Government’s error, rather than on whether lesser R.C.M. 701(g)(3)(D) remedies would have been just under the circumstances[.] 

In exercising her discretion to impose a remedy for discovery violations under R.C.M. 701(g)(3)(D), the military judge may impose dismissal with prejudice if, after considering whether less severe alternative remedies are available, she concludes that dismissal with prejudice is just under the circumstances. The military judge’s ruling in this case was influenced by an erroneous view of the law as requiring her to impose the least drastic remedy to cure the discovery error. As a result, she improperly limited her analysis to whether each remedy would cure the prejudice to the accused and failed to articulate why dismissal with prejudice was just under the circumstances.

United States v. Behunin

Jason Grover.