United States v. MaysThe 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).
United States v. KimKim 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:
United States v. SteeleSteele 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[.]
United States v. LattinA 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.)
United States v. VargasA 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? United States v. BehuninLast 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.” Jason Grover.As expected, a writ appeal petition has been docketed for In re MW. I was going to post about this and discussions among some of us a few years ago about when might it be appropriate to try and have a military judge declare an SVC as a de facto party to the court-martial (and thus subject to R.C.M. 701 and Brady). We were sanguine about the motion getting off the ground. In re MW may move the ball a little--but let's see what CAAF does.
In United States v. St. Jean, _ M.J. ___ (C.A.A.F. 2023), the court decided Whether the military judge erred by excluding evidence under Mil. R. Evid. 412 and by preventing the defense from presenting evidence of participation and consent during the res gestae of the charged sexual assault. The court clarifies that the evidence proferred is likely not res gestae, as I interpret their decision. So the court is not addressing evidence that can be credibly shown to be res gestae. That seems a significant distinction for future application of the case to facts. It is worth clarifying that Appellant is challenging the exclusion of only two pieces of evidence: (A) evidence that Appellant and MC engaged in consensual kissing the day before the alleged sexual assault; and (B) evidence that Appellant was seen with hickey marks the day after the alleged assault. The motions judge excluded the consensual kissing evidence on the basis that it was substantially more prejudicial than probative under M.R.E. 403. The trial judge excluded the hickey evidence because Appellant failed to proffer evidence suggesting Appellant received the hickeys during the alleged assault. I'm not seeing a discussion of how the defense tried to tie the hickeys to the affirmative defense of mistake as to later consent--perhaps they did but that is not reported in the CAAF decision. The ACCA decision is here. The only issues discused by ACCA were admission of HLD, improper TC argument, and insufficiency to one of the charges. The remaining "multiple claims of error" received the standard footnote that the errors were without merit. The defense at trial seemed to be proceeding solely on the theory that the hickeys showed evidence of consent. Ultimately, it looks like the defense waived off on the issue at the time of trial anyway. As explained above in greater detail, during trial the Government objected when the defense attempted to elicit testimony about the hickeys, and the trial judge excused the panel to conduct an Article 39(a), UCMJ, session. Appellant sought to explain that the witness would testify as to having observed hickeys arising from the alleged sexual assault, which would constitute res gestae evidence. The trial judge asked the defense what evidence was before the court that the hickeys were from the night of the offense. Defense counsel ultimately stated that it “could move on from this” and “could possibly readdress it later.” However, defense counsel seemingly never returned to the matter, and the trial judge never affirmatively excluded the evidence. Under this circumstance, there was no ruling by the trial judge to be appealed, and hence nothing for this Court to review. See, e.g., United States v. Welch, 25 M.J. 23, 27 (C.M.A. 1987) (noting the military judge did not make a final ruling excluding evidence). United States v. Pyron, stems from a rehearing after the case had been set aside because of a member issue. Original NMCCA published opinion, 81 M.J. 637 (N-M Ct. Crim. App. 2021) here. 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. What was the Government action? A member in the first trial had given answers in voir dire suggesting his having a daughter may affect his decision making. Yet neither party nor the MJ followed up on that. Later, 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. The question then becomes whether the "error" at the first trial is the type of prosecution misconduct that resulted induced Appellant's testimony at the first trial. Here is the nub of the answer. 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: The Chief concludes that the TCs mistake is not the type of illegal conduct contemplated in the Harrison exception. It seems that
"in United States v. DeWitt, this Court’s predecessor definitively refused to extend the Harrison exception “to instances . . . where there is no primary illegality on the part of the Government’s” agents. 3 M.J. 455, 456 (C.M.A. 1977)." DeWitt was a UA case. The appellant had unsuccessfully challenged admissibility of the Army form recording that he was absent from a certain date and time. He then changed his plea to guilty. However, the MJ rejected the guilty plea. So, it became a NG case again. At this point, the prosecution offered his statements made in response to his guilty plea along with the form and gained a conviction. On appeal CMA held it error to admit the form but found sufficient evidence from the providence (in court under oath) statements to sustain a conviction. Because it was a judicial error in admitting evidence that caused the testimony "Such lofty motive as prompted the Supreme Court in Harrison and this Court in Bearchild would not be served by extending this doctrine to instances such as this case, where there is no primary illegality on the part of the Government’s investigators." Fn. 3 cites two federal cases with a similar result--judicial errors are not primary illegality of the prosecution. In Pyron II we have a combination--a TC who was wrong about the voir dire of one member and whether he had been rehabilitated, a defense counsel who did not point that error out, and a military judge who had forgotten (or not noted) that the TC was wrong and so did not correct the error. A collateral point from Pyron II would be that of situational awareness. Sr. Judge Crawford was the sit-in judge for this unanimous opinion. #2 for this season is United States v. Day. 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). This was a guilty plea case with what appears to be standard language to waive all waivable motions. 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. So the first question for Judge Maggs, writing for the court (including Sr. Judge Effron) was whether the issue presented was waived as a result of the unconditional guilty plea.
At trial the MJ went through the usual colloquy with counsel about what potential issues would be waived. At no time, they were asked four times, did the defense raise a failure to state an offense as a potentially waived issue. The unconditional guilty plea continued through sentencing. United States v. Thompson is the first opinion of the new season. Judge Maggs writes for a unanimous court (with Senior Judge Erdmann sitting in the fifth chair). 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. AFCCA's unpublished opinion is here. While noting AFCCA's description of the legal rules "at length" relating to factual sufficiency, Judge Maggs then goes on to say (and quote AFCCA)
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