Brown is the kick-off opinion for the new term. Chief Judge OHLSON announced the judgment of the Court, in which Judge SPARKS, Judge MAGGS, Judge HARDY, and Judge JOHNSON joined in part. Judge SPARKS filed a separate opinion concurring in part and dissenting in part, in which Judge JOHNSON joined. Judge HARDY filed a separate opinion concurring in part and dissenting in part, in which Judge MAGGS joined in part.
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.
The opinion does not seem to change the law on disrespect to a senior enlisted person, rather it applies the statutory definitions to social media and other forms of digital communication.
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
In United States v. Harrington, the court decided three issues.
(1) Was the evidence of communicating a threat legally sufficient? It was the court decided and affirmed the findings.
(2) Did the military judge err in denying a defense request that the members be informed of the maximum punishment for each specification of which convicted? It was the court decided. In this case the members were deciding a unitary sentence.
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.
The nub of the issue related to the maximum sentence for involuntary manslaughter was ten years.
And the court observed that "Further review of the record of trial demonstrates that Appellant’s concerns were not unfounded."
The effect of denying the instruction was the inability of the defense to argue that the President has set ten years as the maximum for involuntary manslaughter. The Appellant was sentenced to 14 years of confinement.
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.
(3) Was it an error for the victim's parents to give their unsworn statements through questions and answers from the trial counsel? The defense had objected to the procedure.
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).
The court found the errors prejudicial and set aside the sentence. On a separate note,
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).
Judge Maggs concurs and dissents in part. He agrees the evidence was legally sufficient, but he disagrees with the prejudice finding and would affirm the findings and sentence.
Of three issues, the Court wrote on a victim impact "statement" issue and an improper sentencing argument.
Whether trial counsel’s sentencing argument was improper when she: (1) argued that Appellant’s uncharged, false statements were aggravating evidence after she had previously cited case law to the military judge that said false statements were not admissible as evidence in aggravation; and (2) told the military judge that he had seen the media and the world was watching, to justify her sentence recommendation. Expressly waived. "In this case, trial defense counsel “did not just fail to object,” but “affirmatively declined to object” when answering “no” to the military judge’s question."
Had the court taken the issue, they probably would have found the arguments didn't impact the military judge because he is presumed to know the law, especially as TC had just pointed it out, and would follow the law. The AFCCA did address the issue and found that it wasn't improper to argue the world is watching because it wasn't a sufficient threat as seen from cases like, United States v. Norwood, 81 M.J. 12 (C.A.A.F. 2021); United States v. Voorhees, 79 M.J. 5, 14-15 (C.A.A.F. 2019)); United States v. Wood, 18 C.M.A. 291, 40 C.M.R. 3, 9 (C.M.A. 1969)).
Perhaps the MJ asking if there were any objections was a nuanced ask? There once was a MJ who would famously respond to an objection with "not on that basis counsel." Clue, there may be an objection but you haven't said the magic words yet.
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.
The members had convicted the Appellant of murder, for which the MJ sentenced him to 18 years confinement. The dead child's mother and grandmother testified in sentencing without objection. The mother also gave an unsworn victim impact statement. The
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].”
M.W. v.United States affirms the conclusion in EV v. United States that CAAF lacks jurisdiction to hear a petition from an alleged victim who lost at the CCA. Here is the CCA opinion. M.W. at AFCCA consolidates several petitions where the issue was the TC and SVC coordinating over challenges to members. This case lead to an earlier discussion about whether a TC and SVC's interactions can become so intertwined that the SVC becomes a de facto trial counsel subject to all the rules of discovery (and the issue of TC having to disclose the contents of those discussions because if there is no de facto TC, then there is no attorney-client privilege between the TC and SVC.
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.
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.
Witt's appeal bounced up and down resulting in a resentencing hearing, because of IAC during sentencing. Witt is now sentenced to LWOP.
The issue in Witt is prosecutorial misconduct during the sentencing argument and prejudice. The granted issue is,
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?
We are told that,
The Appellant was twice seen holding a cellphone over a shower stall in the SLU while a male was showering. He was charged with attempted wrongful, knowing, nonconsensual view of a person's private area, where there was an expectation of privacy. No-one could testify about what the cellphone screen showed and forensic analysis of the phone could not find any relevant evidence. Although, perhaps as circumstantial evidence, there was evidence of water damage to the cellphone.
The Appellant's theory at trial and on appeal was the lack of legal sufficiency because viewing the person by cellphone image was different from viewing the actual person. ACCA rejected that theory because the cellphone "facilitated" the wrongful viewing. The granted issue was
WHETHER THE OFFENSE OF INDECENT VIEWING UNDER UCMJ ART. 120C INCLUDES VIEWING OF A VISUAL IMAGE OF THE PRIVATE AREA OF ANOTHER?
The CAAF agrees with ACCA. The "real-time" viewing facilitated through the cellphone makes this different from later viewing an image or video that has previously been recorded. The attempt charge is valid because the Appellant only stopped one of the times because he saw a potential witness and fled the scene--some consciousness of guilt there.
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.
Memo to the field:
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
As an aside there is a helpful discussion of the rule of lenity with reference to Muscarello v. United States, 524 U.S. 125, 138-39 (1998).
Kim is a guilty plea case with an issue as to the providence of one specification. The CAAF affirms the findings of three specifications of sexual abuse of a child and one assault and battery.
The military judge had sentenced the Appellant to a dishonorable discharge, 130 months of confinement, and reduction to grade E-1. The CA abided by the PTA to reduce the confinement to six years.
The CAAF sets aside an Article 134(2) specification that alleged:
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.”
CAAF tells us that:
Steele is a bouncer--ACCA remands for resentencing--back to ACCA--on to CAAF--back to ACCA.
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[.]
A suppression issue.
I. Whether the lower court erred when it did not apply the exclusionary rule.
A full house, in a 3-2 decision answers the questions in the negative. (S.J. Crawford was the third ace.)
A dismissal with prejudice is a remedy for a prosecution discovery violation. But the military judge has to get to that remedy through a proper and orderly analysis, which Judge Hardy, writing for everyone, says the military judge didn't do. So, the military judge gets a do-over. Judge Hardy writes for a unanimous court on an Article 62 appeal.
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.
Judge Hardy proceeds to tell us that
“ 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
Judge Hardy suggest the question arises
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.
In affirming the ACCA vacating the dismissal order at trial, Judge Hardy tells us that
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[.]
Judge Hardy adverts to R.C.M. 701(g)(3) which lists four remedies for a discovery violation. He notes also that a dismissal may be appropriate under R.C.M. 701(g)(3)(D). Working through the Rules and Stellato, Judge Hardy concludes the military judge abused her discretion because she had an erroneous view of the law.
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.
Under R.C.M. 701(g), the military judge may take one or more of the following actions:
(A) Order the party to permit discovery[.] Moot.
(B) Grant a continuance[.] "Granted" through this appeal.
(C) Prohibit the party from introducing [further] evidence, calling a witness[.] Why is this necessary now? There may actually be reasons related to the theme and theory from the defense presented in opening statement, cross-examination of other witnesses, etc., etc., etc.
(D) Enter such other order as is just under the circumstances. Stellato does not require the least drastic remedy rather a case specific one. Judge Hardy tells us “permits a broader inquiry” as to what is just.
Offline discussions of this case have suggested there are more questions than answers to the puzzle.
Why was the first TC "fired?" Combined with the dismissal sending a message that a 304(d) notice really is required "before arraignment" and it's bad to forget that?
Does the military judge now have to conclude that dismissal is appropriate?
What say you?
Last Thursday, CAAF released its opinion in United States v. King. King, a lieutenant colonel in the Air Force, was charged with sexual assault of his seventeen-year-old biological daughter under Article 120 and with a specification under Article 134 of committing an act of sexual penetration on his blood relative under a New Jersey statute. He was sentenced to three years confinement and a dismissal. The Air Force Court of Criminal Appeals dismissed the Article 134 offense, affirmed the Article 120 offense, and reassessed the sentence and affirmed the three years confinement and a dismissal.
The case presents useful discussion of forfeiture versus waiver and application of the plain-error standard. The context was member selection.
In this case, King’s court-martial was assembled in April 2018. At the time, one of the members selected was Lt Col PBL. During voir dire, Lt Col PBL disclosed he had been the subject of a rape allegation when he was fifteen years old. He explained the charges were “unfounded and later dismissed.” Lt Col PBL opined that his experience showed the justice system works. Neither side challenged Lt Col PBL for cause.
But then there was a continuance. The opinion doesn’t spell out all the details, but the MJ granted a defense continuance after assembly of the members based on a scheduling conflict with the defense expert consultant. I found this a fascinating detail as the Navy-Marine Corps Court of Criminal Appeals overturned a death sentence in United States v. Walker for failure to grant a continuance for a defense expert. 66 M.J. 721 (N-M Ct. Crim. App. 2008).
In this case, the court-martial was delayed four months, until July 2018. When the trial resumed, there was a new military judge, new senior trial counsel, and seven newly detailed panel members. And no Lt Col PBL. An amendment to the convening order was placed into the record showing that Lt Col PBL and two other members had been “relieved” by the convening authority. To further confuse mattes, on the record, the senior trial counsel asserted that the missing members had been excused at an earlier session. But there had been no excusing-earlier-session.
Critically, the defense did not object or challenge any aspect of the composition of the court-martial until raising the issue for the first time before the CCA.
The CCA found that King had forfeited the issue of panel composition and applied a plain error analysis. The CCA found plain error in the government failing to show good cause for Lt Col PBL’s excusal on the record but found that there was no material prejudice to a substantial right. As part of its analysis, the CCA had allowed the government to attach a declaration from the staff judge advocate which established that Lt Col PBL had been selected for the Air War College and had transferred to another base before Appellant’s court-martial had resumed. (Note a significant discussion of United States v. Jessie and supplementing the record--here by the government.)
CAAF first looked at the standards of review in a very clear parsing of the different standards for different issues including whether an issue was waived (de novo); whether the lower court properly attached documents (abuse of discretion); jurisdiction (de novo); and for prejudice (de novo).
Regarding waiver, Chief Judge Ohlson, writing for the majority, analyzed the 2016 version of R.C.M. 905(e) and found that Appellant had not waived the issue of panel composition, but simply forfeited it. The distinction is key because if he had waived it, the Court would have considered there to be no error to review but if it was forfeited the Court would apply a plain error analysis.
The Court went on to agree with the CCA’s decision to allow the government to attach documents because doing so was necessary to resolve issues raised by the record. Part of the Court’s reasoning was based on the concern that a different decision may encourage “sandbagging” of issues by trial defense counsel in the hopes of a windfall on appeal.
After finding the CCA did not abuse its discretion by attaching the documents, the Court moved to focus on the key issue, whether the panel was properly constituted. The Court noted that prior to assembly, the convening authority can remove any member for any reason. But after assembly it can do so only for good cause under Article 29(a). The Court discussed the difference between jurisdictional and administrative errors in convening a court-martial and determined the error here was administrative by not providing the good cause which existed based on Lt Col PBL’s transfer on the record. It was a failure to document the good cause rather than a lack of good cause.
Next the Court turned to prejudice under the plain error analysis. Chief Judge Ohlson praised the government for conceding the obvious and admitting that there was an error and it was a clear or obvious error. It was a nice reminder. I suspect most of us have encountered situations where the other side refuses to concede obvious points. I’m glad the Chief Judge pointed out that the government did the right thing here.
Like so many cases, it all came down to prejudice. Did Lt Col PBL’s absence constitute material prejudice to a substantial right? The Court called it “rank speculation” that Lt Col PBL may have been more favorable to the defense based on his past experience. The defense argued that it was denied the opportunity to investigate Lt Col PBL’s excusal and litigate it at trial. But the Court pointed out that Appellant was fully aware of his absence and he could have raised the issue at anytime during the court-martial.
Finding no prejudice, the Court affirmed the CCA.
Two judges wrote concurring opinions worth mentioning. First, Judge Maggs wrote separately to argue that he would have found waiver rather than forfeiture. He points out that the Court’s precedents on the issue are “all over the map.” Rather than try to reconcile the long list of conflicting decisions, Judge Maggs would apply the plain text of R.C.M. 905(e) and find waiver of the issue.
Second, Judge Hardy also concurred. But he wrote separately to raise an issue that is used much less than it might be at trial. He wrote relying on Article 36 which delegates to the President the authority to promulgate procedural and evidentiary rules for courts-martial. But those rules much, “so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.” Because federal civilian courts would generally apply a plain error analysis under Fed. R. Crim. P. 52(b), he would do the same. It is an important reminder for parties to consider what the federal law is that might be applicable or analogous. Too often, advocates (including me!) don’t even think to look.
The best lesson from the case is taken from the beginning of Chief Judge Ohlson, “This case underscores the need for everyone involved in a court-martial panel to pay meticulous attention to the panel member selection process.”
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
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