Appellant argues that his Fifth Amendment due process rights were violated because he was convicted on a theory of sexual assault that was not charged. In his view, he was convicted of sexual assault because the court members found that JC was incapable of consenting due to intoxication instead of the charged bodily harm theory. Appellant argues the Government should have charged the two theories in the alternative but by selecting only a bodily harm theory “it allowed the members to arbitrarily impart their subjective sense of how impaired they believed [JC] was at the time of the alleged offense.” 

We granted review to determine whether the military judge erred when he concluded that Appellant voluntarily provided his cell phone’s passcode to law enforcement. We hold that under the totality of the circumstances, Appellant did voluntarily provide his passcode and thus the military judge did not abuse his discretion in denying a defense motion to suppress incriminating evidence derived from Appellant’s cell phone. We therefore affirm the judgment of the United States Navy-Marine Corps Court of Criminal Appeals (CCA).

​We granted review on the following issue: Did the military judge and the court below err in finding that Appellant voluntarily provided his smart phone passcode to law enforcement when the law enforcement official conducting the interrogation asserted that he possessed a search authorization for the phone and Appellant only provided his passcode because Appellant believed he had “no choice?”

Appellant makes two main arguments. First, Appellant avers that his entry of the passcode was involuntary because he merely acquiesced to a claim of authority. However, we note that the Fourth Amendment consent cases that Appellant cites in support of his claim are not on point.  . . . Appellant next argues that his refusal to consent to a search of his phone five times “is direct evidence that he did not voluntarily provide his phone’s passcode.” However, we are not persuaded that, standing alone, five refusals to consent to a search make a subsequent entry and provision of a passcode involuntary. Key to our analysis here is the military judge’s factual findings that the investigator used a professional tone at all times and did not engage in threats, abuse, or coercion.

These artistic elements were incorporated into the video for the purpose of delivering a non-written and nonoral message to the panel, but to whom should we attribute that message? We believe the answer to that question must be to Government trial counsel. In producing the video, trial counsel made creative and organizational decisions that lead us to believe that the video incorporated her own personal artistic expression.

Unsworn victim statements are not a vehicle by which the government can supplement its sentencing arguments by putting its own statements—oral, written, artistic, or otherwise—into the victim’s mouth. Of course, victims may confer with trial counsel in preparation for their unsworn statements.

​Appellant argued that this motion embodied a combination of two, separate but related, errors. On one front, the motion alleged the preferral was defective because CPT JE coerced CPT CF into preferring charges that CPT CF did not believe were true, and of which CPT CF lacked personal knowledge. Secondarily, the motion alleged that CPT JE’s act of coercing CPT CF to prefer charges also constituted unlawful command influence. 

​I also note that on July 13, 2018—more than four months before the entry of pleas—defense counsel specifically asked the Government to disclose any evidence of unlawful command influence, to which the Government responded: “[N]o such evidence is known to exist.” Appellant’s reliance on that representation was reasonable because all evidence of unlawful command influence concerned the behavior of government actors. And as we have held previously, “there [is] good cause [shown] when the government ‘sandbag[s]’ the defense.” United States v. Jameson, 65 M.J. 160, 163 (C.A.A.F. 2007) (third alteration in original) (quoting United States v. Coffin, 25 M.J. 32, 34 n.3 (C.M.A. 1987)). That is, when defense counsel reasonably rely on representations by the government in deciding to not file a motion, and the government later acts inconsistent with those representations, good cause can exist to “grant relief from the waiver.” R.C.M. 905(e); see Jameson, 65 M.J. at 163. Per Jameson, the Government may not have it both ways. Appellant’s failure to file a timely motion was directly traceable to representations made by the Government, and thus even if the motion should have been filed before pleas, the military judge erred in failing to address this critical evidence as to whether there was good cause to “grant relief from the waiver.” R.C.M. 905(e).

Generally, any person subject to the UCMJ may prefer charges, however, the accuser must state that the charges “are true in fact to the best of his knowledge and belief.” United States v. Hamilton, 41 M.J. 32, 36 (C.M.A. 1994) (internal quotation marks omitted) (quoting Article 30(a)(2), UCMJ, 10 U.S.C. § 830(a)(2)). Under Rule for Courts-Martial (R.C.M.) 307(b), through the accuser’s signature, preferral signifies that a person has sworn an oath to assure that they have either personal knowledge of or investigated the matters set forth in the charges and specifications.

​“A person who has been ordered or coerced into preferring charges becomes an ‘accuser’ within the meaning of Article 1(9), UCMJ, 10 USC § 801(9).” Hamilton, 41 M.J. at 36. “An accuser is disqualified from acting as a convening authority in that case.” Id. (citing United States v. Jeter, 35 M.J. 442 (C.M.A. 1992)).

The majority opinion concludes that the military judge did not err. However, for the reasons set forth below, I conclude that the military judge erred in two critical respects. First, the ruling of the military judge did not take into account the recognition in our case law of the importance of permitting an accused to raise an accusatory UCI claim at any point before the adjournment of an accused’s trial. Second, even assuming that the filing did not meet the timing requirements of Rule for Courts-Martial (R.C.M.) 905(b)(1), I conclude that the military judge erred by failing to conduct an adequate inquiry into the circumstances supporting the defense contention that there was good cause to “grant relief from the waiver.” R.C.M. 905(e).

​The military judge denied the motion on the basis that the facts relied on by the defense were “discoverable” since the date of preferral. If that standard were established as a required condition for establishing good cause, it would impose on defense counsel an obligation to engage in discovery throughout an accused’s command in order to ascertain whether there had been any impropriety at the accusatory stage of a court-martial, even if the defense had no basis for making such an inquiry.

Cheers, Phil Cave

I. Did the lower court err in finding the convening authority abused his discretion under R.C.M. 1109 by acting after Appellee submitted R.C.M. 1106 clemency matters but before the military judge issued his written post-trial ruling?

II. Did the lower court err in finding that the staff judge advocate’s review was uninformed under R.C.M. 1109 where the review was completed after Appellee submitted R.C.M. 1106 clemency matters and review of the military judge’s post-trial ruling was not required under R.C.M. 1109?

​III. Did the lower court err in finding that the post-action written ruling was a substantial omission where the ruling was not an R.C.M. 1106 matter and nothing in the new rules required the convening authority to consider the ruling prior to taking action under R.C.M. 1109 even if included in the record of trial?

Given the significant changes in the post-trial processing system that applied to Appellee’s case, we conclude that the convening authority’s action was not premature nor was the staff judge advocate’s recommendation uninformed. The record of trial is not required to be complete at this stage of post-trial processing. Appellee had the right to submit clemency matters, and the convening authority must, and did, consider the clemency matters. If Appellee wanted to ensure that the convening authority considered his post-trial confinement conditions, the appropriate place was to include it in his clemency request or to have filed a post-trial motion within five days of receiving the convening authority’s action. He did not do so. Therefore, there is no error for us to correct.

8 May 2019 Appellant sentenced.
17 May 2019 Appellant submits clemency requests.
9 Jul 2019 Post-trial hearing on 8th Amendment claims.
11 Jul 2019 Statement of Trial Results.
24 Jul 2019 Convening Authority Action.
31 Jul 2019 Ruling on post-trial motion.
31 Jul 2019 Entry of Judgment.

Cheers, Phil Cave