United States v. Grubb, __ M.J. ___ (N-M Ct. Crim. App. 2023) is interesting because the court finds the military judge erred in admitting Mil. R. Evid. 414 evidence and reverses the findings and sentence. An "enlisted" panel had convicted Grubb of two sexual assaults of a child and the MJ sentenced him to four years, RiR, and a DD.
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.
The evidence suggested that Appellant and Ms. Sigma had sexual relations prior to his enlistment and perhaps at least once while on active duty. The defense objected to the Mil. R. Evid. 414 evidence and
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.
1. Is the accused charged with an act of child molestation?
2. Does the proffered evidence show the commission of a crime at the time of the acts.
3. Is the evidence relevant.
And of course the evidence must survive the Mil. R. Evid. 403 balancing.
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.
Turning to the post-enlistment sex, the court says in part
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 court finds the MJ's balancing was erroneous and prejudicial. See United States v. Kerr, 51 M.J. 401, 405 (C.A.A.F. 1991) for the four factors to be examined for the presence or absence of material prejudice.
An argument too far
United States v. McNichol is worth a read for two reasons. First,
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.
and second, the VLC sent a letter post-trial which repeated almost verbatim the victims in court statements for sentencing. The following was added.
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.
The defense asked the convening authority to ignore these comments. NMCCA found no prejudicial error and affirmed the findings and sentence. However, NMCCA did say that
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.
Colleagues have told me to restrain myself. So I will merely ask a question--what kind of lawyer is the Navy hiring to be a VLC?
Timing might be important
In United States v. Millican, the MJ accepted Appellant's guilty plea to a 128b. The problem you ask?
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.
Having found error (which the Government agreed existed) the court looked to Schmuck and determined they could affirm an LIO of 128, assault and battery. But, but based on the facts there is no sentencing relief warranted.
Pity the timing wasn't noticed at preferral, the 32, or referral.
Is there a Santa? What's in the box? Can I shake it? Who is that for? How did Santa get down the chimney, we don't have one?
In that vein, assume Mom tells Dad that Jimmy is asking about Santa and she wants to know what to tell Jimmy. Is it an overt act of a conspiracy for Dad to say that they should tell Jimmy words to the effect of, "Santa has a cloaking device which makes him invisible and yes, he'll be back this year?" They also agree to still put out the milk and cookies on schedule. Mom agreeing, they go to bed never telling Jimmy anything--and of all things, the commissary is out of milk and cookies. It so happens that Dad's commanding officer gets word of this lying to a child and decides on a court-martial to make a point to Dad and all the other dads out there.
 For those who have been stationed at Lajes, Azores, this was at times a reality.
Dad's lawyer however has read NMCCA's decision in United States v. Gomezvillalobos.
There, the defense moved in advance of trial to dismiss a conspiracy specification which the military judge denied, with leave to ask for reconsideration or make a 917 motion.
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.
NMCCA assigns the MJ to the naughty list.
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.
NMCCA was not Santa here, in case you were wondering--no offense meant. The appellant has served his Brig time and the remaining charges are sufficient to justify a dismissal at a sentence rehearing.
Off to enjoy some spiced eggnog which was NOT purchased from Cranford's Supermarket.
United States v. Jordan Jones is a published decision where
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[.]
A first point to consider is whether to give, and what must be included in a notice under Mil. R. Evid. 404(b).
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.”
The preferral of charges is an important step in movement toward a court-martial. Most of the time there isn't a reason to challenge the preferral. However, history has shown, and United States v. Floyd , __ M.J. ___ (N-M. Ct. Crim. App. 2022), further shows that it is sometimes worth the effort to peer behind the wizard's curtain, talk to the accuser, and compare the "evidence" the accuser reviewed. There also are some lessons for trial counsel.
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 Government appeal raises two broad issues, (1) the MJ violated the rules by issuing written findings and conclusions after receiving the notice of appeal, and (2) abuse of discretion in the rulings.
The Court disagrees that it cannot consider the MJ's written ruling, favorably citing United States v. Catano, 75 M.J. 513 (A. F. Ct. Crim. App. 2015). As the third of three points, the Court adds
In United States v. Johnson, the sole issue is whether the military judge should have recused himself from presiding over the guilty plea.
Appellant was initially pending action for failing a urinalysis. He thought it might be a good idea to start a fire to destroy the evidence which resulted in charges of arson. While the case was underway another fire arose and a note was left near the scene thought to exculpate the accused. There was a delay in trial to await the results of the investigation. Investigation of the second fire was complete trial restarted. But, a few weeks before trial an exculpatory video showed up on the command's Facebook pages. Another investigation and more delay ensued. There were other delays and continuances in the case because of the pandemic. Well, Appellant ended up with more charges and negotiated a PTA.
Subsequent to entering into a pretrial agreement, Appellant filed a motion for the military judge to recuse himself. Appellant argued there was an appearance of bias because the continuances, and joinder of an additional charge for misconduct during the trial, adversely affected the military judge and his docket. The military judge invited written pleadings, and, in the hearing on the motion, allowed Appellant to voir dire him. Through this questioning, the military judge explained that during sentencing he would consider only the evidence properly admitted, that he harbored no animus towards Appellant, and this would be no different from any other time when he had to compartmentalize information while presiding over courts-martial. The military judge also informed counsel that neither the scheduling complications for the case nor the length of the court-martial caused him any personal problems. Following the military judge’s denial of the recusal motion, Appellant pleaded guilty, and elected trial by military judge alone, after being advised that the same military judge that he requested recuse himself would be his sentencing authority. The parties agreed that Appellant’s guilty plea did not waive the recusal motion on appeal.
NMCCA finds no abuse of discretion with the MJ refusing to recuse himself. It helped that the MJ sentenced Appellant to three years where the PTA allowed up to four. This was an old style PTA where the MJ didn't know the sentence cap. See n. 3.
So, the adage apparently holds that it's not the crime but the cover-up that turns an OTH into three years and a DD.
In United States v. Lizotte, the issues are
(1) the sentence limitation portion of the plea agreement contained impermissible limitations under a plain reading of R.C.M. 705(d) and should not have been accepted.
The issue is not new and n. 3. to the opinion tells us Rivero's status.
82 M.J. 629 (N-M. Ct. Crim. App. 2022) (finding that specific sentence limitations within a plea agreement do not violate the Rules for Courts-Martial or public policy), review granted, __ M.J. __, 2022 CAAF LEXIS 484 (C.A.A.F., July 11, 2022).
United States v. Gilmet. MJ ruling reversed.
Appellant argues that the 2019 amendment to Article 37, UCMJ, eliminated apparent UCI as a basis for appellate relief. Effective 20 December 2019, the relevant new language in Article 37 states: “No finding or sentence of a court-martial may be held incorrect on the ground of a violation of this section [i.e., UCI] unless the vi olation materially prejudices the substantial rights of the accused.”We need not address whether the issue before this court involves a “finding or sentence of a court-martial,” as we find that, even if apparent UCI is still a viable basis for relief, there was no apparent UCI here.
The issue of actual UCI focuses on how and why Appellee's defense counsel were removed from the case.
The military judge ruled that Appellee’s loss of his IMC and ADC, both of whom had been on the case for over a year, demonstrated that the Government had not disproven any prejudicial effect of the alleged UCI. We disagree.
United States v. Doyle. Appellant pled guilty to aggravated assault and was sentenced to nine months, a Dismissal, and a reprimand.
During his first appeal Doyle raised the issue of of sentence inappropriateness and trial counsel error in arguing the dismissed charges and calling him a "monster." NMCCA did not agree, but they specified an issue with the factual basis for the plea to strangling when the term "is neither defined by the military judge nor used in a context to indicate grevious bodily harm was the "natural and probable consequence" of that action."
NMCCA set aside the findings and sentence and authorized a rehearing. Doyle then pled guilty to the lesser offense of A&B; for which he was sentenced to 'no punishment.' The CA disapproved the adjudged 180 days confinement and TF IAW a PTA. On further appeal he has one issue.
(1) Appellant’s commanding officer recommended nonjudicial punishment [NJP] after the State of Florida declined to prosecute Appellant; (2) the trial counsel then scheduled a meeting with the immediate superior in command [ISIC] accusing Appellant of attempted murder; and (3) the ISIC stated that while he had no plan to court-martial Appellant, the meeting made him believe the Navy had already made the decision that the case was going to court-martial.
Appellant sought to attach a Declaration from the Commodore,
[T]he Commodore states in the declaration (1) that he became aware of Appellant’s case while he was the Deputy Commodore; (2) that around the time NJP was recommended, members of Region Legal Service Office [RLSO] Northwest scheduled to meet with him; (3) that during the meeting, the RLSO trial counsel advocated in favor of prosecuting Appellant at court-martial and presented the Commodore with draft charges, which included attempted murder; (4) that prior to the meeting he did not believe Appellant’s case rose to the level of attempted murder and would not have recommended that the case proceed to an Article 32 hearing; (5) that the meeting left him feeling that the Navy had already made the decision that the case was going to court-martial; (6) that after the meeting he adopted the position that the legal process would play out and would provide an opportunity to clarify the matter; and (7) that he reached his decision to recommend an Article 32 hearing on his own and was not coerced by anyone to do so.
NMCCA denied the request to attach the declaration citing Willman and Jessie. The court then holds that there is "no legal basis to grant Appellant’s motion to attach the declaration to the record and decline to consider it. Without the declaration, his claim is baseless." The court then went on to say that even if they had considered the declaration, there still would be no merit to the claim. The court finds that whatever went on was accepted practice for the interactions between a trial counsel and convening authority. And, the court points out it is not "a court of equity."
Ali pled guilty to indecent visual recordings and possession of CP. He was sentenced to 48 months, RiR, and a DD.
This is a "straddle" case where his primary appellate issue was IAC " for failing to adequately explain Appellant’s options regarding sentencing procedures and for advising Appellant to elect sentencing procedures in accordance with rules implemented pursuant to the Military Justice Act of 2016 (MJA 16)[.]"
Appellant claims that had he been better informed about the MJA 16 sentencing procedures election, he would not have agreed to an MJA 16 plea agreement even if it would have meant settling for a PTA with a higher possible sentence limitation. He asserts that the outcome would have been different had he elected pre-MJA 16 sentencing procedures because he could have fared better in sentencing.
The court rejects the argument based partly on it being speculative and because of the declarations submitted to the court by the defense counsel explaining their advice and reasoning for their recommendation.
There is nothing in the record to indicate that but for his counsels’ alleged error, Appellant would not have pleaded guilty and would have insisted on going to trial.
The court rejected Appellant's claim that the sentence was unreasonable.
Appellant’s offenses were serious and had lasting impacts on the victims. He admitted to having secretly recorded his undressed fellow shipmates over a period of months while they were living in the very close confines of a deployed submarine. Appellant unlawfully made videos capturing at least 40 Sailors—13 of whom were identified by NCIS—which he filed away for personal viewing and maintained for nearly four years until their discovery by law enforcement. Multiple victims testified about the impacts of Appellant’s offenses, describing persistent physical reactions when considering the crime, loss of trust, and feeling “disgusted.”47 Additionally, Appellant admitted to having purchased thousands of images and videos of children engaged in sexual acts, in which over 350 victims were identified by the National Center for Missing and Exploited Children. Appellant sought out and paid for these images and videos, and then kept them for years on multiple electronic devices until they were seized by law enforcement. In mitigation, Appellant presented evidence of his long naval career, acceptance of responsibility, expressions of remorse, and efforts at rehabilitation. Nonetheless, . . .
United States v. Miller, __ M.J. ____ (N-M. Ct. Crim. App. 2022), is a case exploring who is a "victim" and so who can give a victim impact statement. Did the MJ
abuse his discretion when he permitted, over Defense objection, the mother of a deceased Sailor to make a victim impact statement when Appellant was not found guilty of an offense relating to the deceased Sailor.
The finding of victim status flows from the nature of the criminal conduct. There seems to be a sufficient nexus between what the appellant did and the resulting death of his co-actor.
The circumstances of those offenses involved a joint enterprise between Appellant and FCSR Echo to obtain, purchase, and use heroin together. Appellant bought the drug paraphernalia and provided the needle FCSR Echo used to inject the heroin that ultimately caused his death. As such, we determine that the psychological harm FCSR Echo’s death caused to FCSR Echo’s mother directly arose from the offenses of wrongful drug use and possession of drug paraphernalia of which Appellant was found guilty.
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