In Horne, the AFCCA writes that the Appellant was found guilty by an "enlisted" panel of sexual assault by causing bodily harm. He was sentenced to RiR2E4 and a DD. He raised five issues.
(1) TC and SVC created an appearance of unlawful influence by interfering with the attempt by the Air Force Office of Special Investigations (AFOSI) to interview JC’s spouse. There was extensive litigation on the issue. The MJ determined the defense failed to meet the initial requirement of showing "some evidence of unlawful influence." However, the MJ went on to suggest that were there enough and had the Government failed to disprove unlawful influence, "“the present status of this case and its current participants” together with all the facts and circumstances of the entire proceedings “prove beyond a reasonable doubt: (1) that there is no intolerable strain upon the public’s perception of the military justice system; and (2) that an objective, disinterested and fully-informed observer would not harbor a significant doubt about the fairness of the proceeding.”" The AFCCA ultimately finds against Appellant. The court makes many interesting comments, including
[A]lthough perhaps improperly carried out, as indicated above the apparent motives behind the actions of Capt JP and Capt AS were not illegitimate. The military judge found as fact that “[n]o effort or failure to act by any participant, including [Capt AS] and [Capt JP], was driven by a motive to gain some unfair advantage or harass the accused,” and this finding was not clearly erroneous.
(2) Conviction on a theory of sexual assault that was not charged violated his right to due process. This appears to be a recurring issue.
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.”
(3) The MJ abused his discretion by allowing irrelevant evidence of JC’s level of intoxication. This is related to the charging decision above.
(4) Legal and factual insufficiency.
(5) The MJ erred by precluding cross-examination of JC under Mil. R. Evid. 412 regarding other sexual behavior with Appellant. The court: "We assume without deciding that the military judge’s ruling limiting the cross-examination of JC was influenced by an erroneous view of the law and was an abuse of discretion. However, we find the assumed error was harmless beyond a reasonable doubt so relief is not warranted."
In addition, there were 16 Grosty's.
United States v. Nelson. The introduction.
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?”
In denying relief, the court addressed a number of factors in a de novo review of the totality of the circumstances and the military judge's findings. See Slip op. at 4; and
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.
In United States v. Edwards, __ M.J. ___ (C.A.A.F. Apr. 14, 2022), the court sets aside the sentence. All five judges found trial counsel error, but Chief Judge Ohlson and Judge Sparks would find no prejudice and affirm the findings and sentence. R.C.M. 1001A
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.
This would not be the first time for something like this. Usually the MJ shuts down the music and any voice-over to the slide show.
When the government responds to a written discovery request and their reply is “[N]o such evidence is known to exist[,]” or words to that effect--do not believe them or rely on that response.
Yes, this is hyperbolic, but I wish to make a point.
I am in general agreement with Chief Judge Ohlson and Senior Judge Effron, dissenting in United States v. Givens, issued by CAAF today--the judges are not hyperbolic--but they are dead on.
The trial defense counsel filed a motion for defective referral because of UCI just a few days before trial was to start; months after arraignment and some time after the MJ's motions due date. The MJ declined to hear the motion because it was filed late and because defense counsel had not sufficiently established "good cause" for a waiver of the filing deadlines. (The dissent is critical of the MJ for not making a good effort to get at the reasons for late discovery of the issue itself. Slip op. at 2.)
If I am reading the opinion correctly, it seems it was trial counsel who was alleged to have committed UCI. Slip of. at 2 and 4.
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.
Do not take comfort from United States v. Jameson, in that defense counsel may reasonably rely on representations of trial counsel when deciding not to raise a motion (or perhaps do anything else for that matter). The dissent observes,
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).
Slip op. at 7 (Ohlson, C.J. and Effron, S.J., dissenting). So, what's the issue?
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.
Slip op. at 4. Every now and again the command may slip up and just tell someone to "sign here," and they do so without satisfying the legal requirements for preferral.
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).
To some extent this case has strains of the case-that-shall-not-be-named, United States v. He Who Shall Not be Named. What did the defense know and when did they know it? The dissent observes,
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.
There are several questions not addressed by CAAF or the MJ.
The dissent also takes issue with the majority's conclusion about when the defense must make or lose an accusatory UCI motion.
The majority holds there was no abuse of discretion by the military judge. So, it may seem that motions to dismiss for accusatory UCI must be made before arraignment, or the date in the TMO, or you better have a really good reason you didn't find out sooner. Of course, UCI might be one of the harder issues to identify and root out, because, I suspect, the witnesses are not likely to be so open about the relevant facts and circumstances.
One other point not discussed is the 'so what' question. Let's assume the MJ had heard and agreed with the defense. Was the MJ required to dismiss with prejudice? Could the MJ have dismissed without prejudice allowing the gubmint to do it again but the right way?
If you have some pithy on point comments, send them our way at firstname.lastname@example.org.
Make no mistake, I am not condoning the late filing of motions. I am a fan of pretrial motions, especially motions in-limine from either party. This is why I am fond of the Navy-Marine Corps practice of scheduling at least one motions session before trial.
Cheers, Phil Cave
NMCCA’s opinion Miller should be read first. Because the NTJAG certified the case to CAAF which decided in favor of the government on April 4, 2022. Judge Sparks writes for a unanimous court addressing three issues—related to post-trial issues, post-trial motions, and record completeness.
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?
At trial, the Appellant was awarded a total of 239 sentence credit against the 12 months adjudged. The appellant was apparently placed in post-trial “protective custody. When the defense learned of this they asked for a post-trial hearing and moved for an additional 33 days confinement credit based on “illegal post-trial” confinement. The military judge’s ruling did not make it into the record before the CA action.
So, NMCCA set aside the CA action because it was “premature.” They held omission of the military judge’s ruling was “substantial” because the CA could not have fully reviewed the record when deciding on clemency. They also decided that if the MJ ruling was not available the SJA could not have properly reviewed the record and given proper advice.
The CAAF reviews the new post-trial rules.
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.
Reading the NMCCA decision we find this chronology,
8 May 2019 Appellant sentenced.
From this chronology, we can read that the defense was on notice of the potential error regarding post-trial confinement and why the CAAF reached its ultimate conclusion.
Cheers, Phil Cave
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