United States v. Mencias, 83 M.J. ___ (N-M. Ct. Crim. App. 2023)

​While the Supreme Court has never directly addressed sexual orientation within the context of peremptory challenges, it has held sexual orientation and gender are treated the same for purposes of employment discrimination.
. . .
The race-based protections of Batson are applicable to courts-martial. Likewise is the Supreme Court’s extension of Batson to gender. This is true regardless of the accused’s race or gender. But, based on fundamental differences in the selection of jurors in civilian trials and members of courts-martial, our superior court has both lowered the bar for the defense to make a Batson challenge and raised the bar for the Government to overcome one.

[A]pplying J.M. v. Payton-O’Brien, the military judge provided that Petitioner had to elect whether or not to waive her Mil. R. Evid. 513 privilege to permit in camera review of these records. The military judge then forecast several possibilities as to what could happen if Petitioner did, or did not, waive the privilege for this limited review, depending on what the military judge might find in the records if he were permitted an in camera inspection. Rather than make an election, Petitioner filed a motion for reconsideration, which the military judge denied, explicitly finding that the diagnostic criteria for BPD were themselves not privileged. Again, the military judge gave Petitioner the option to waive the privilege for an in camera review, and a date by which to inform the court of her election: 3 April 2023. However, the Victim’s Legal Counsel [] requested a[n] 802[], informing the military judge that Petitioner would seek relief with this Court. As a result, the military judge suspended the date by which Petitioner was to make her election. Petitioner ultimately filed this Petition with the Court, and, so far as we are aware, has not yet made an election. 

• 1. "[W]e do not know whether the undisclosed diagnostic criteria at issue constitute privileged communications because we do not know what they are or how they were reached; therefore, the military judge did not abuse his discretion in deciding that an in camera review was required. Nor do we know the result of that future review might be, or what eventualities might flow from it."
• 2. "Petitioner has not demonstrated that the right to the issuance of this writ is clear and indisputable as to her second and fifth issues because those issues are not ripe. Nor can Petitioner demonstrate that issuance of the writ is appropriate as to her third and fourth issues, because Petitioner’s argument rests on the faulty premise – rejected by this Court in J.M. v. Payton O’Brien – that court-martial convictions resulting from the withholding of constitutionally required evidence from accused are somehow tolerable in the military justice system."
  
• 3. "Finally, we decline to issue an advisory opinion as to Petitioner’s first issue, as to what standard of review would apply to a ripe petition for extraordinary relief filed under Article 6b, UCMJ."
• 4. "We reject Petitioner’s argument that the military judge lacked authority to request Petitioner waive the privilege for the limited purpose of the military judge reviewing in camera Petitioner’s mental health records.. . . We are confident that a military judge’s request that an alleged victim waive the privilege for the limited purpose of in camera review, does not dilute the privilege because “the victim always holds the key to the privilege and the victim’s rights will be protected by the military justice system to the greatest extent possible, even if that results in an abatement of the entire court-martial.”
• 5. "There are at least three possibilities here: (1) Petitioner waives the privilege and permits an in camera review and the military judge finds evidence that is constitutionally required, in which case Petitioner has another election to make; (2) Petitioner waives the privilege and permits an in camera review and the military judge does not find any constitutionally required evidence; or (3) Petitioner does not waive the privilege and the military judge must therefore craft a remedy. In sum, this dispute has not crystalized sufficiently to permit appellate review at this point."

United States v. Harvey

Regarding factual sufficiency, this is the Court’s first case to address the application of the recently amended Article 66, UCMJ, standard of review.[*]

[*] Section 542(e) of the FY 2021 National Defense Authorization Act made the new standard applicable to offenses that occur after 1 Jan 2021.

Appellant contends that a “deficiency in proof” means a weakness in the evidence presented to support an element, not a complete absence of evidence on an element. The Government contends that “deficiency in proof. . . must allege a defect in evidence that, if valid, would undermine at least one element of an offense.” Complete absence of evidence on an element of a charged offense would, of course, render a conviction legally insufficient because a reasonable fact-finder could not find all the essential elements beyond a reasonable doubt.” The parties in this case substantially agree on this point.

​Regarding identification of the element (or elements) of the crime for which there is a deficiency in proof, we hold that this means that an appellant must identify a weakness in the evidence admitted at trial to support an element (or more than one element) and explain why, on balance, the evidence (or lack thereof) admitted at trial contradicts a guilty finding.

We hold that “appropriate deference” does not mean that this Court can no longer make any credibility determinations of witnesses, as the Government argues. This is because the statute explicitly allows this Court to “weigh the evidence and determine controverted questions of fact.” Obviously, testimony is part of the evidence to be weighed, and the qualifier in the subsection requires “appropriate deference” rather than entirely eliminating credibility determinations regarding testimony from the evidence to be weighed. And because members do not make special findings or explain how they weighed the evidence admitted at trial in reaching a general verdict (apart from sometimes indicating a minor variance in charged language or making a finding of guilt to a lesser included offense), we find that “appropriate deference to the fact that the trial court saw and heard the witnesses and other evidence” is a higher standard than the prior “recognizing that the trial court saw and heard the witnesses.”

​We find that the revised statute requires a departure from the prior practice, and the standard for factual sufficiency has become harder for an appellant to meet. It is clear that the factual sufficiency standard in the revised Article 66, UCMJ, statute has altered this Court’s review from taking a fresh, impartial look at the evidence requiring this Court to be convinced of guilt beyond a reasonable doubt, to a standard where an appellant has the burden to both raise a specific factual issue, and to show that his or her conviction is against the weight of the evidence admitted at trial. Thus, Congress has implicitly created a rebuttable presumption that in reviewing a conviction, a court of criminal appeals presumes that an appellant is, in fact, guilty. 

As discussed below, although the question before us focuses on the convening authority’s referral action, we decline to cabin our analysis to this step in the military justice process. We will examine first whether Articles 16 and 19 and R.C.M. 201(f)(2)(E) facially violate Appellant’s Fifth or Sixth Amendment rights. “The constitutionality of an act of Congress is a question of law that we review de novo.” If we find these articles and the President’s implementing rules to be constitutionally valid (and we do), we next turn to how they were applied in Appellant’s case.

Two specifications of sexual assault of a child were preferred against Appellant. These specifications related to victims Ms. Bravo and Ms. Lima. An additional charge also alleged a violation of Article 120b, UCMJ, but related to Ms. Sigma, Appellant’s high school girlfriend. All charges and specifications were alleged to have occurred before 1 January 2019.
​
Before trial, Ms. Sigma notified the Government that she no longer wanted to participate in the trial as a witness. The defense was then advised of the Government’s intent to use information regarding Ms. Sigma as propensity evidence under Mil. R. Evid. 414 as it related to the Article 120b specifications involving Ms. Bravo and Ms. Lima. The Government then withdrew and dismissed the charge related to Ms. Sigma. 

argued that the motion to exclude was supported by Kentucky state law and a Naval Criminal Investigation Service interview of Ms. Sigma. Appellant’s position was that Kentucky law did not criminalize his relationship with Ms. Sigma because the age difference between them was within the range protected by Kentucky law and, therefore, the sexual relationship did not amount to an offense.

​The military judge, in ruling on the defense’s Mil. R. Evid. 414 motion, found the issue of whether sexual relations with Ms. Sigma occurred before or after Appellant enlisted in the Marine Corps to be relevant only as to jurisdiction, noting in his ruling that “…whether or not the uncharged misconduct…occurred before or after the accused’s enlistment…would only resolve the…jurisdictional issue of whether the accused could be tried for his alleged misconduct at a court-martial.” We disagree. The military judge’s bundling of events relating to Ms. Sigma under a general concept of “sexual assault of a child” led to legal errors in his Mil. R. Evid. 414 and Mil. R. Evid. 403 analysis. 

The Supreme Court found that a trial court did not need to make a finding by a preponderance of the evidence that the acts occurred in order to admit such evidence. Instead, this type of evidence should be admitted if there is sufficient evidence such that the jury could conclude, based on a preponderance of the evidence, that the defendant committed the similar act. Put differently, the trial court only needs to assess whether there is enough evidence for a reasonable jury to reach the conclusion under a preponderance standard.

The military judge’s ruling indicates his view that “[t]he [Appellant’s] admissions, corroborated by Ms. K.W. and statements of [Ms. Sigma]…is a primary source for both the uncharged misconduct as well as the charged offenses [pertaining to the other victims].” This is notable in that Appellant denied any post-enlistment sexual relations with Ms. Sigma, K.W. clarified that the statements in question were about Ms. Bravo not Ms. Sigma and Ms. Sigma never testified in this case. Having reviewed all the evidence in this case, even in light of the holding in Huddleston, we have doubts that a jury could have reasonably found by a preponderance of the evidence that Appellant had sexual relations with Ms. Sigma, at some time after his enlistment. However, we need not resolve the Mil. R. Evid. 401 and 402 issue at this stage because in addition to the three-part test established by Mil. R. Evid. 414, the military judge must also conduct a Mil. R. Evid. 403 balancing analysis. We find that the military judge abused his discretion in applying the Mil. R. Evid. 403 balancing test, and thus do not need to reach the issue of relevance under Mil. R. Evid. 104(b).
​

An argument too far

Civilian defense counsel, implied that HN Sierra’s testimony was influenced through trial preparation. He asked nine questions implying trial preparation had affected her testimony. Appellant attempts to distinguish Norwood, asserting that the cross-examination focused on testimony being consistent with a narrative created the morning after the assault. The C.A.A.F. rejected a similar temporal argument in Norwood. Appellant opened the door to these prior consistent statements through this line of questioning.
. . . 
Our superior Court has held that when defense counsel implies improper influence on the victim through trial preparation, the Government may offer consistent statements made before trial preparation. In United States v. Norwood, the Court of Appeals for the Armed Forces [C.A.A.F.] found a victim’s videotaped forensic interview admissible under Mil. R. Evid. 801(d)(1)(B)(i). The C.A.A.F. found that the prior statements were admissible because of the implication that the victim had been coached.

​My client was violated not only on 2 November 2019, but at each and every turn during the trial as the defense objected to her testimony, cross-examined her, allowed the Accused to perjure himself, and attempted to strip her of her opportunity to provide a full victim impact statement.

While Congress and the President have afforded greater leeway for crime victims’ submissions post-trial, and that due process is satisfied by permitting an accused notice and a response, we cannot countenance attacks on constitutional rights by trained legal counsel. A victim cannot include in an unsworn statement that which a trial counsel could not argue. A VLC likewise, cannot not make arguments that a trial counsel could not.
. . . 
This ill-conceived attack—on the exercise of constitutional and regulatory rights (under the supervision of a military judge), and an unsubstantiated ethical accusation—was two sentences in an otherwise admissible three-page submission. The brief argument resulted in no substantial prejudice, considering that the only relief requested was a favorable recommendation to the clemency and parole board.

Timing might be important

​On 13 August 2018, Congress passed the National Defense Authorization Act for Fiscal Year 2019 [NDAA 2019]. Section 532 of NDAA 2019 included a new punitive article, Article 128b, which covered certain domestic violence offenses. NDAA 2019 provided that this new provision would take effect on 1 January 2019. However, the offense underlying Specification 1 of Charge 3, Appellant’s assault upon Mrs. Mike, occurred on or about 1 August 2018. The Ex Post Facto Clause found in Article I, Section 9, of the Constitution, has long been interpreted to prohibit laws that: (1) criminalizes acts that were not criminal at the time they were committed; (2) aggravates a crime or makes it greater than it was at the time it was committed; (3) imposes additional punishment for a crime that would have not been so punished at the time committed; or, (4) changes the rules of evidence that require less or different evidence to convict than would have been required at the time the act was committed.

​At the close of the prosecution’s case, the military judge summarily denied the Defense motion brought under R.C.M. 917. The military judge reasoned: Denied. I continue to find, that there is evidence that has been presented that an agreement existed that after that agreement was formed that an overt action act was performed. That overt act was the agreement to purchase the MDMA, which was separate and apart from the original agreement, which was to distribute a controlled substance and that the agreement to purchase—essentially to front the money was not part of the original agreement. And by agreeing to front the money, that was an overt act to bring out—to accomplish the end state of the agreement; the object of the conspiracy. The issue as to whether the agreement between Appellant and 2ndLt November—that Appellant agreed to purchase drugs from 2ndLt November—was either an overt act in furtherance of a conspiracy to distribute drugs or was merely part of the agreement itself that formed the conspiracy to distribute drugs, is exactly the type of issue that would make an excellent law school final exam question.

Put simply, we find that the “overt act” charged was merely part of the overall agreement to distribute MDMA, and was not in any way independent of that agreement. Therefore, both the charge itself and the evidence adduced at trial were legally insufficient to sustain a conviction, and the military judge should have dismissed Charge I prior to trial (or at the close of the government’s case under Rule for Court-Martial 917). It follows that as the specification under Charge I fails to state an offense, the conviction for Charge I is therefore legally insufficient.

Cheers!

Off to enjoy some spiced eggnog which was NOT purchased from Cranford's Supermarket.

Officer and enlisted members sitting as a general court-martial convicted Appellant, contrary to his pleas, of sexual assault in violation of Article 120, Uniform Code of Military Justice [UCMJ]. Appellant was also convicted, pursuant to his pleas, of desertion, absence without leave, escape from custody, false official statement, wrongful possession of a controlled substance, and wrongful appropriation in violation of Articles 85, 86, 87a, 107, 112a, and 121 UCMJ, respectively. Appellant asserts three assignments of error [AOE]: (1) the admission of his statement, “I’m going to tap that” implicated Appellant’s substantial right to be presumed innocent under the Due Process Clause of the Fifth Amendment, and but for that error, the outcome of the proceeding would have been different[.]

Prior to trial the Government provided notice under Mil. R. Evid. 404(b) that it intended to offer certain non-hearsay statements of Appellant. Among this evidence was a statement Appellant made earlier in the evening to Machinist’s Mate Third Class [MM3] Charlie (one of the other Sailors present at the hotel), in which Appellant stated that “he was going to have sex ‘regardless’ that night, or that he was ‘going to get some tonight,’ or words to that effect.”8 The Government made clear in its notice that it was not conceding that the statements were covered by 404(b) however, “out of an abundance of caution” it was providing notice.9 The Government’s notice did not specifically contain Appellant’s alleged statements including the words “tap that,” “hit that,” or words that conveyed the same meaning. Appellant subsequently filed a motion to exclude evidence listed in the Government’s motion; however, Appellant’s motion was limited to other unrelated evidence in the Government’s notice pertaining to an alleged violation of a protective order. The Government ultimately elected not to introduce that evidence. Appellant’s motion to exclude did not include Appellant’s alleged statements “he was going to have sex ‘regardless’ that night” or, that he was “going to get some tonight.” 

At trial, the Government questioned MM3 Charlie about Appellant’s statements to him on the evening of the incident.

     TC: Did [Appellant] say anything about what his intentions were that night? MM3: Yeah, somewhat.
     TC: What did he say? MM3: That he was trying to get with them.
    TC: Okay. Do you remember him saying that he was going to get some that night? MM3: Yeah.

At no point did trial defense counsel object. Additionally, the Government questioned AR Delta about her interactions with Appellant on the evening of the incident. AR Delta testified that on meeting Appellant at the hotel for the first time, Appellant stated, “[O]h, damn, I’m going to hit that tonight,” referring to AR Delta’s body.11 AR Delta testified that Appellant told her “he was going to tap that” (or words to that effect) later  in the evening, again referencing AR Delta. Trial defense counsel did not object to the line of questioning regarding these statements.

​After referral of charges and shortly before trial was set to begin, the trial defense counsel for Appellee moved to dismiss two of the five specifications alleging sexual abuse of a child for defective preferral and discovery violations. Trial defense counsel argued that, at the time of preferral, Charge II, Specification 2 alleged “excessively inflammatory” language that was not supported by evidence. Trial defense counsel further argued that, at the time of preferral, Charge II, Specification 4 was not supported by the evidence reviewed by the accuser. Finally, the trial defense counsel argued that after preferral and during the months leading up to trial, the Government violated its discovery obligations.

The Motion to Dismiss was litigated at an Article 39(a) session. At the conclusion of the hearing the military judge made an oral ruling dismissing Specification 2 with prejudice and dismissing Specification 4 without prejudice. During the hearing the military judge told the parties that he intended to supplement his oral ruling with a written ruling. In his oral ruling, the military judge determined that with regard to Specification 2, in addition to not being supported by the evidence, the trial counsel violated discovery obligations under Military Rule of Evidence [Mil. R. Evid.] 304(d) and Rule for Courts-Martial [R.C.M.] 701 by making late disclosures to the defense. This included the fact that the trial counsel did not interview the named victim in the specification until shortly before trial.