United States v. Moore
__ M.J. ___ (N-M. Ct. Crim. App. 2024)

As the Scottish poet Robert Burns observed, the best-laid plans of mice and men often go awry. And Appellant’s plea, which was best-laid, quickly unraveled as the Government opened its sentencing case.

But Appellant now levels a broadside at the bargain he struck below asserting six assignments of error: (1) whether Appellant’s conviction for assault consummated by a battery was improvident; (2) whether the military judge abused his discretion when he accepted Appellant’s guilty plea for extramarital sexual conduct; (3) whether the military judge abused his discretion by allowing the Government to introduce aggravation evidence beyond the scope of the charge for which Appellant pleaded guilty; (4) whether the military judge abused his discretion by allowing a victim impact statement that went beyond the scope of the charge for which Appellant pleaded guilty; (5) whether Appellant’s defense counsel ineffectively represented him during his court-martial; and (6) whether the sentence adjudged is inappropriately severe.

In an apparent effort to obtain a sentence on the higher end of the bargained-for three-to-six-month sentencing range for confinement, the Government introduced a number of reports of interviews taken by agents from the Naval Criminal Investigative Service (NCIS) during its investigation of CPT Mike’s allegation that Appellant sexually assaulted her. While these interviews do contain matters in aggravation, they also squarely raise the mistake of fact defense to the alleged assault and present a substantial basis in both law and fact to question Appellant’s plea to that Charge.
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An affirmative defense to a charged offense would, by definition, constitute matter inconsistent with a plea of guilty and a military judge must resolve the apparent inconsistency or reject the plea. That said, not every mitigating statement or word requires further inquiry, and a military judge is not required to reopen a plea and inquire further where an accused raises the “mere possibility of a defense.” But if a party sets up matter raising a possible defense, then the military judge is required to make further inquiry and resolve any apparent ambiguity or inconsistency.

Rule for Courts-Martial 916(j)(2) places no limitation on the source or the kind of evidence that may establish a mistake of fact defense. And the evidence supporting that defense “can come from evidence presented by the defense, the prosecution, or the court-martial.”

For now, Appellant has evinced his intent to withdraw from the plea agreement by challenging the providence of his pleas to all the charges and specifications and by alleging that his trial defense counsel were ineffective in negotiating the plea agreement in this case, which he alleges no reasonable attorney would have done. We hold that the conditions allowing the parties to withdraw from the plea agreement have been met. And under the facts of this case, we set aside the findings and sentence so the Government and Appellant may fully avail themselves of the remedies available to them below, which may include, but are not limited to, permitting Appellant to plead anew or proceed to trial.

United States v. Avellaneda,
__ M.J. ___ (N-M. Ct. Crim. App. 2024)

During his plea colloquy, stated that on 25 January 2021 during this evolution, he negligently failed to fully inspect several midshipmen candidates (by not looking directly at them during the inspection). In certain other cases, he failed to document on a spreadsheet the new tattoos that he had observed during the inspection. Later, Appellant became aware that an investigation into unauthorized tattoos had commenced and a “Body Alteration Inspection” was imminent. One of the midshipmen candidates who Appellant had inspected had in fact obtained a large tattoo that ran the entire length of his back. Appellant falsely recorded that the midshipman candidate had not obtained any new tattoos. This midshipman candidate approached Appellant and disclosed to him that he was planning to provide an altered (backdated) photograph intended to fool the investigator into thinking that the new tattoo was, in fact, not new. Appellant encouraged him to provide this doctored photograph to the investigator as evidence.

As the MJRG explained, there are two types of plea agreements in federal practice related to sentencing. Under Rule 11(c)(1)(B), or a “B plea,” a prosecutor agrees to make a recommendation to the judge that a specific sentence or sentencing range is appropriate. But under a “C plea,” the judge is bound by the parties’ agreement to a specific sentence or sentencing range. And under a “C plea,” the judge has only three options: (1) accept the agreement and adjudge the sentence (or within the limits of the sentencing range) agreed to by the parties; (2) reject the agreement entirely; or (3) defer the decision until after review of the presentence report.

Congress ultimately adopted the MJRG’s proposal for Article 53a, UCMJ, in the MJA 16. As a result, while military servicemembers continue to be able to bargain for how the convening authority will dispose of one or more charges and specifications, they may also now bargain for specific limitations on the sentence that may be adjudged for one or more charges and specifications just like defendants in federal court.

United States v. Cunningham

Appellant asserts one assignment of error (AOE), which he preserved for appellate review by entering conditional pleas of guilty: whether the military judge abused his discretion by admitting evidence obtained in violation of Miranda v. Arizona and Article 31(b), UCMJ. We find no prejudicial error and affirm.

Some basic facts

​the North Carolina Internet Crimes Against Children [ICAC] Task Force—consisting of federal, state, and local law enforcement, including Homeland Security Investigations (HSI), North Carolina State Bureau of Investigations, and the Boone Police Department (PD)--

HSI agents assembled off base around 0545 the day of the search to conduct an operations brief. NCIS agents were not present at the briefing as they were not intended to be involved in the actual execution of the search warrant. However, three NCIS agents provided surveillance on Appellant’s house from their vehicle to ensure he did not leave before the search.

In the Jeep Cherokee, Appellant sat in the front passenger seat, Special Agent Baker sat in the driver seat, and Special Agent Peters sat in the back seat. The vehicle doors remained unlocked and Appellant was “not patted down, searched, frisked, or placed in any restraints at any time prior to the questioning by HSI agents, while in the vehicle or immediately following the interview.”

United States v. Maebane, III

A panel of officer and enlisted members at a general court-martial convicted Appellant, contrary to his pleas, of one specification of reckless endangerment and one specification of involuntary manslaughter, in violation of Articles 114 and 119, Uniform Code of Military Justice [UCMJ].

Cheers.

(Disclaimer: no comments from us because we represented HM1 Davis.)

United States v. Waada

​Although Appellant submitted his case on the merits without assignment of error, we note that the Entry of Judgment [EOJ] in this case does not comply with Rule for Courts-Martial [R.C.M.] 1111(b)(1)(A) because it does not adequately summarize each specification of the charge. Although we find no prejudicial error, we take this opportunity to define what is required in an EOJ to provide guidance to the trial judiciary on an issue that all too frequently requires correction on appeal. We therefore take action in our decretal paragraph. In accordance with R.C.M. 1111(c)(2), we modify the EOJ and direct that it be included in the record.

United States v. Shelby

The convening authority correctly regarded the request as not clearly claiming an attorney-client relationship. By imposing on the convening authority a duty to look beyond Appellee’s express representation of no attorneyclient relationship, the military judge applied an incorrect legal principle and absolved Appellee from his burden to clearly claim the existence of such a relationship. As such, the military judge abused his discretion by applying an incorrect view of the law. Nonetheless, we reach the same conclusion as the military judge that the convening authority improperly denied the IMC request, but we do so for a different reason.

The cumulative error doctrine was not born in military courts, but has been used by military appellate courts for more than seven decades as an expansion of the mandate in Article 59(a), UCMJ, that authorizes military appellate courts to set aside a finding only if an error “materially prejudices the substantial rights of an accused.” The cumulative error doctrine is a test for prejudice that looks retrospectively at a trial’s execution and results to assess the “cumulative effect of all plain errors and preserved errors.” Under the doctrine, criminal courts of appeal determine if “‘a number of errors, no one perhaps sufficient to merit reversal, in combination necessitate the disapproval of a finding.’” We then reverse only if we find that the cumulative effect of the errors denied an appellant a fair trial.

We are aware of no statute, rule, or case that permits the use of the cumulative error doctrine in the pretrial context. To the contrary, one can hardly assess the cumulative effect of errors on the fairness of a trial if the trial has not yet commenced and a verdict has not yet been announced.

Despite the fact that we vacate the military judge’s ruling, nothing in this opinion should be read as condoning the Government’s behavior in how it has sought to prosecute Appellee up to this point. The military judge’s ruling sets forth a series of concerning actions and decisions by the Government both in the current court-martial and the prior proceedings that could be construed to demonstrate a “win at all costs” mentality. Trial counsel would be wise going forward to remind themselves of the Supreme Court’s famous exhortation[.]

United States v. Patterson

The lead agent began the rights advisement by saying, "Before we can talk to you, we just have to go over this form with you, okay?" He described it as "[n]ot a scary form" and "just a piece of paper."
After informing Appellant that he was suspected of indecent viewing, visual recording, and broadcasting, the lead agent asked him if he knew "the difference between being suspected of doing something and being accused of something." Appellant responded with "if you're suspected then you're suspected." The lead agent then explained,

[S]uspected of something means like "hey we need to talk to this person because they might have some kind of knowledge about it." Being in the military, if I think you have anything to do with this, I have to advise you of your rights. Okay. That's why I'm advising you of your rights. Uh. Because I want to know something you may have knowledge of.
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Accused of something is when you're actually sitting in front of the judge and the judge is saying that you did this okay. So, if me and you are at the bar, you know, having some drinks and [John] falls down and starts bleeding and he points in our general direction and he says, "That guy stabbed me." Right? The police are going to want to talk to us because we might know something about [John] being stabbed without saying that we stabbed him. It's saying that we might have some kind of knowledge of what happened.
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I don't want you to think that we are accusing you of anything. We're just here to find out some information.
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​A proper rights advisement under Article 31(b) and Tempia is more than a formality—it is not "just a piece of paper" or a mere "form" as the lead agent described it. And, more importantly, the plain language of Article 31(b) requires informing an accused or suspect of the "accusation" irrespective of whether "he is accused or suspected." The agent's departure from the statute's mandates—especially his explicit statement that he was not accusing Appellant of anything—rendered the rights advisement inadequate and Appellant's subsequent statements inadmissible in accordance with Article 31(d).

Even if we assume the rights advisement did not violate Article 31, we would still find, under the totality of the circumstances, that Appellant's due process rights were violated and that his statements to NCIS were not voluntary.

We find the military judge, in ruling otherwise, abused his discretion in three ways.

First, the military judge abused his discretion by failing to consider important facts. Specifically, while the military judge found it was "likely that there was some sort of admonishment by [LtCol Hill] to answer questions," he failed to consider the compound effect of that directive in relation to the agents' repeated reference to their need to report to Appellant's command. Similarly, as discussed supra, the military judge failed to consider the improper character of Appellant's rights warning.

Second, by focusing on LtCol Hill's intent rather than Appellant's perception, the military judge abused his discretion by using incorrect legal principles. The correct legal lens is from the perspective of the person making the statement. 
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Third, by finding LtCol Hill's conversation with Appellant "significantly attenuated" and doing so without discussion of what legal principle led to that conclusion, the military judge abused his discretion either by applying an incorrect legal principle or by applying the correct legal principle in a clearly unreasonable way.

United States v. Richard, 83 M.J. ___ (CGCCA)
(Record of Trial) **

Appellant with two specifications of murder under Article 118, UCMJ[.] The first murder specification alleged Appellant did “with an intent to kill or inflict great bodily harm, murder [SFG], a child under the age of 16 years, by asphyxia.” The second murder specification alleged Appellant did “with knowledge that death or great bodily harm was a probable consequence, murder [SFG], a child under the age of 16 years, while engaging in an act which is inherently dangerous to another and evinces a wanton disregard of human life, to wit: by asphyxia.”
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​[CGCCA] conclude[s] that the specification failed to provide adequate notice of the act(s) or omission(s) on which the involuntary manslaughter conviction was based and that this error was not harmless beyond a reasonable doubt.

 The MCM’s sample specification for the charged offense of murder reads, in relevant part, that the accused did “murder ______ by means of (shooting (him) (her) with a rifle (_______)).” MCM, para. 56.e at IV-78. The shortcoming of the specification charged is not that charging authorities omitted the words “by means of.” It is that they missed the point: the model specification calls for alleging that the accused murdered someone by doing a specific thing—like “by means of shooting him with a rifle,” not by means of a cause of death like asphyxia or exsanguination. In the same vein, the Military Judges’ Benchbook advises instructing that the “death resulted from the (act) (omission) of the accused in (state the act or failure to act alleged).” Together, these should act as guideposts to charging authorities not just to charge that some act or omission resulted in a certain cause of death, but to state what that act or omission was. 

United States v. Williams 

United States v. Colletti

The AFCCA began its analysis in Martinez by noting that neither party could cite precedent for charging the conduct at issue as wire fraud, and that the case raised an issue of first impression. Given that the wire fraud statute was enacted back in 1952, the absence of any precedent should have alerted the AFCCA—and subsequently the Government in this case—that it was “proceeding at flank speed…off course in thick fog, with no one on the bridge, helm or engine order telegraph.” As recently as last term, the Supreme Court again cautioned lower courts against embracing “novel” interpretations of the federal wire fraud statute. See, e.g., Percoco v. United States, 143 S. Ct. 1130, 1136 (2023), the AFCCA began its analysis by correctly holding that the federal wire fraud statute is “limited in scope to the protection of property rights[.]” But are digital images [alone] property for purposes of that statute? The AFCCA thought so.

In Ciminelli, the Court overruled this line of precedent and held that the right-to-control theory “cannot be squared with the text of the federal fraud statutes, which are ‘limited in scope to the protection of property rights.’”
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For its part, upon being haled before the Supreme Court in Ciminelli, the Government immediately beat a hasty retreat and abandoned the right-to-control theory. Despite relying on the right-to-control theory for decades, the Government conceded that if “the right to make informed decisions about the disposition of one’s assets, without more, were treated as the sort of ‘property’ giving rise to wire fraud, it would risk expanding the federal fraud statutes beyond property fraud as defined at common law and as Congress would have understood it.” “Thus, even the Government now agrees that the Second Circuit’s right-to-control theory is unmoored from the federal fraud statutes’ text.”
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But the Government makes no such concession here. Despite the repeated references in the record to Martinez, and Martinez’s express reliance on Second Circuit precedent like Percoco that has since been reversed, the Government insists Appellant “was not prosecuted under a ‘right-to-control’ theory.” No. Appellant was prosecuted, according to the Government, under an “exclusive use” theory, which the Government maintains is a “traditionally recognized property right.” Under this newly-minted, traditional property right, the victims in this case lost “the exclusive use over their intangible property—the sexually explicit depictions of their bodies in digital photographs.” Put another way, they lost the right to control the use of their digital images. Needless to say, that is “slicing the baloney mighty thin.”

"​schemed to deprive the intended victims of the fraud, the girls, the talent agency, and the photographer of property and money."
“schemed to defraud the models, their families, the photographer, and the modeling agency of various services and property of some value.”
​"actors expecting payment for an audition or performance."
"​Catfishing for profit, as the phrase suggests, describes catfishing in which the fake identity is used to obtain money from a duped victim.” 

​Indeed, this case heralds the arrival of the parade of horribles predicted in cases like Ciminelli and Cleveland. The Government’s “exclusive use” theory of criminal liability “makes a federal crime of an almost limitless variety of deceptive actions traditionally left to state contract and tort law—in flat contradiction with our caution that ‘absent a clear statement by Congress,’ courts should ‘not read the mail and wire fraud statutes to place under federal superintendence a vast array of conduct traditionally policed by the States.”

Judges interpret the law as written, not as they wish it were written. And Congress may yet empower the Government to police internet dating sites to ensure that Marines obtain nude photographs from otherwise consenting adults without resorting to loathsome deception. Congress just hasn’t done that in the federal wire fraud statute. 

United States v. Salinas

The resolution of this case should be easy enough. Appellant’s case was docketed almost three months before this Court’s decision in United States v. Marin, [__ M.J. ___ (N-M Ct. Crim. App. 2023)]which held that the crime of attempt requires the Government to prove an accused had the specific intent to commit the underlying offense and, therefore, an accused cannot be charged or convicted of an attempted sexual assault on the basis that he “reasonably should have known” of an underlying condition. Both parties agree that Appellant’s second assignment of error, which challenges his conviction for attempted sexual assault where he “reasonably should have known” the victim was asleep, has merit. They also agree that the constitutional error involved is not harmless beyond a reasonable doubt. And they agree that the findings and sentence should be set aside, and a rehearing authorized, in light of Marin. But both parties nevertheless insist the Court accompany them on separate, quixotic adventures.
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In other words, the Government asks the Court to end its opinion where it began—with a rehearing.
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For that predicament, the Defense proposes a novel solution: a Motion for Expedited Review of Appellant’s second assignment of error. The Defense makes clear that Appellant is “not seeking expedited review” of his ineffective assistance of counsel claim, but merely Appellant’s release from confinement “pending resolution [of that issue].” Put another way, the Defense asks the Court order the rehearing required by Marin immediately, and determine later whether his claim of ineffective assistance of counsel merits—another rehearing.
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This case has been hard fought since its inception. And left unchecked, counsel for both sides may yet devise even more elaborate proposals to fully achieve pyrrhic victories on behalf of their clients. That is their prerogative. But the “duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.”

United States v. Mosley