United States v. Harvey
A panel of officer and enlisted members convicted Appellant, contrary to his pleas, of one specification of indecent exposure in violation of Article 120(c), Uniform Code of Military Justice [UCMJ], but acquitted him of one charge of sexual assault and one charge of battery, charged as violations of Articles 120 and 128, UCMJ. He was sentenced to one year, RiR, and a DD. In a published opinion, the court tells us
Regarding factual sufficiency, this is the Court’s first case to address the application of the recently amended Article 66, UCMJ, standard of review.[*]
The legal issue relates to the standard of review and what does the phrase "deficiency of proof" mean.
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.
The reviewing court must give deference to the fact finder having heard and seen the witness, not "recognizing" the fact finder heard and saw the witnesses--a higher standard. However,
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.”
Further, thee was disagreement between the parties about what the phrase ""clearly convinced" and "against the weight of the evidence" means.
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.
The court went on to address the specific deficiencies raised by the appellant and found the charges legal sufficient.
The appellant also challenged the MJ's failure to give a mistake as to consent defense instruction. The court finds that a mistake as to consent is not a viable defense to the charged conduct. It did not help the appellant's cause that the offenses took place "in public." The court relies on United States v. Carruthers, 64 M.J. 340 (C.A.A.F. 2007) and United States v. Bailey, 77 M.J. 11 (C.A.A.F. 2017) for its analytical framework.
The court also found (harmless) error in submitting a stipulation for a prior court-martial as a personnel record under R.C.M. 1001(b)(2).
The en banc published opinion in United States v. Wheeler addresses the newer MJA SPCM where the Appellant challenges the referral as violative of the Fifth and Sixth Amendments. A footnote suggests two similar cases were also included within the certified question.
Appellant was charged with a single specification of sleeping on post, an offense for which the President has authorized a maximum punishment of confinement for one year, forfeiture of all pay and allowances for one year, and a dishonorable discharge.
Appellant’s charge was referred to a judge-alone special court-martial in accordance with Articles 16 and 19, UCMJ.
Appellant moved to dismiss for a lack of jurisdiction, arguing that the referral of his case to a judge-alone special court-martial violated his rights under the Fifth and Sixth Amendments to the Constitution.
Motion denied; convicted and sentenced to 15 days’ confinement.
Articles 16 and 19 create a military judge alone.
Congress also delegated to the President the authority to prescribe further regulatory limitations to the new judge-alone special court-martial’s jurisdiction.
Rule for Courts-Martial [R.C.M.] 201(f)(2)(E)'s right to object to a judge-alone special court-martial do not apply here.
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.
During oral argument the appellant conceded no Fifth Amendment violation and focused on the Sixth Amendment claim. The court went ahead to discuss both claims in order to properly address the certified issue.
Marine Corps Double Jeopardy Issues
United States v. Cabrera, __ M.J. ___, 2023 CCA LEXIS 37 (N-M Ct. Crim. App. 2023). Raised in the course of appellate review. See also United States v. Cabrera, 80 M.J. 374 (C.A.A.F. 2020); United States v. Cabrera, No. 201800327, 2020 CCA LEXIS 155 (N-M Ct. Crim. App. May 12, 2020).
United States v. Murillo, No. 202200132 (N-M Ct. Crim. App. Feb. 3, 2023) (unpub.). Raised by petition for a writ.
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.
Navy-Marine Corps Court of Criminal Appeals
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.”
Navy-Marine Corps Court of Criminal Appeals
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.
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