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.
In United States v. Pyron, the court begins,
Appellee’s case is before us for a second time. In 2019, a general court-martial consisting of members with enlisted representation convicted Appellee, contrary to his pleas, of attempted rape of a child, rape of a child, and sexual abuse of a child. In 2021, this Court reversed Appellee’s convictions and authorized a retrial owing to implied bias of one of the members.2 In July 2021, the convening authority re-referred the same charges and specifications against Appellee to a general court-martial. The Government now appeals the following issue: Did the military judge abuse his discretion by excluding Appellee’s testimony during his first court-martial due to Government actions in the member selection process where: (a) this Court found the trial counsel’s recitation of voir dire answers was “an honest mistake,” and (b) under Harrison v. United States and United States v. Murray, suppression is only justified where illegal government action directly induced the accused’s testimony? We find that the military judge abused his discretion and reverse his decision.
The court begins its discussion with Harrison v. United States, 392 U.S. 218 (1968) from which comes the principal that an accused's trial testimony is generally admissible at a retrial.
This general principle is not a bright-line rule, however. Where a defendant’s prior testimony was induced after the prosecution put into evidence confessions or admissions that were illegally obtained, the testimony becomes the fruit of the proverbial poisonous tree and cannot be used against the accused at later proceedings.
So, from Harrison, we have two situations where there was a constitutional issue at play. What then of nonconstitutional issues, such as error in the "jury" selection process.
A final note,
Even if reliable evidence were presented that Appellee testified as a result of the inclusion of LT Alpha on the member panel, the military judge abused his discretion in applying this Court’s decision in Murray to exclude Appellee’s prior testimony.
It appears that MJ mistakes may not be a reason to exclude an accused's prior testimony. What if the MJ erred in permitting Mil. R. Evid. 413 evidence and the accused decided to testify? (Assume that the accused did not invoke his Fifth Amendment right to silence on cross-examination as to the Mil. R. Evid. 413 allegations.)
It is, of course, difficult to unravel the many considerations that might have led the petitioner to take the witness stand at his former trial.
Harrison, 392 U.S. at 224.
In United States v.Flowers, an "enlisted panel" convicted him of three abusive sexual contacts and sentenced him to a BCD. He raises three issues, none of which bring him relief.
(1) Appellant’s company commander committed apparent unlawful command influence by stating, “there’s a predator in our midst,” in a meeting called specifically to address recent allegations of sexual assault, and the Government failed to prove beyond a reasonable doubt that the unlawful command influence did not place an intolerable strain upon the public’s perception of the fairness of the military justice system.
(2) The MJ abused his discretion in admitting evidence of the charged acts to prove Appellant’s absence of mistake and intent to commit the charged acts under Military Rule of Evidence [Mil. R. Evid.] 404(b).
(3) the sentence of a bad-conduct discharge is inappropriately severe.
Here, the military judge found that Major Bravo’s comments during the company meeting did not place an intolerable strain on the public perception of the military justice system. We agree. While it is certainly a commander’s prerogative to conduct climate checks and safety surveys in the wake of sexual misconduct allegations, particularly those occurring in the work environment, the use of pejorative terms like “predator” is both ill-advised and strongly discouraged, as it could be viewed as pre-judging an accused whom the law presumes to be innocent until proven guilty. Even where the subject of the allegations is not referred to by name, it is far too probable that the circulation of rumors will make the accused’s name known for commanders to use language that might reasonably be perceived as publicly condemning an accused while he or she is pending investigation or trial for an alleged offense.
On the Mil. R. Evid. 404(b) issue, the court found admission for that purpose reasonable when the defense raised the issue of lack of intent and mistake.
While we give the military judge’s ruling little deference because he did not articulate his reconsidered Mil. R. Evid. 403 balancing on the record, we find his conclusion under Reynolds’ third prong reasonable. We find the evidence of Appellant’s conduct toward MA3 Madison and MA3 Hotel probative regarding the issues of intent and lack of mistake with respect to his subsequent conduct toward MA3 Mike, particularly in light of the mistake-of-fact instruction pertaining to MA3 Mike that the military judge gave at Defense request. Although the incidents occurred eight months and two years prior, respectively, they involve similar one-on-one conduct by Appellant using his supervisory role to commit repeated, nonconsensual touching of a sexual nature upon isolated, female subordinates despite their protests. As this evidence was already before the members on the charged offenses, it required no additional time to prove at trial, presented no possible distraction to the factfinder, and was the least prejudicial evidence possible under the circumstances. The evidence is also strong, as it is corroborated by Appellant’s admissions that he touched both MA3 Madison and MA3 Hotel on the buttocks because he was attracted to them, and that MA3 Hotel was shocked when he did so.
In United States v. Keago, the appellant was convicted by members of attempted sexual two sexual assault, four burglarys, and one obstructing justice. He was sentenced to 25 years, TF, and a dismissal. Counsel raised six errors and four were Grosty.
(1) The MJ erred by denying defense counsel’s challenges to three members for actual and implied bias.
(2) Appellant’s convictions for sexual assault and burglary involving Midshipman [MIDN] Sonntag, MIDN Morse, and MIDN Metcalf are legally and factually insufficien.
(3) Appellant’s sentence is inappropriately severe.
(4) The MJ abused his discretion by admitting the testimony under Mil. R. Evid. 404(b).
(5) The MJ abused his discretion by denying Appellant’s motion to dismiss based on failure of law enforcement to prevent the loss of potentially useful evidence.
(6) Appellant, who is African American, was denied due process when the mostly Caucasian venire resulted in his being tried by a panel comprised of Caucasian and Asian members.
The defense had " challenged 14 members of the venire panel for cause. The military judge granted six defense challenges and denied the other eight. Of those eight[.]" Some of the questionable answers include,
As to LCDR Card, the court found,
[the almost rape of] LCDR Card’s mother in 1975 was a non-issue in terms of his ability to serve as a panel member. The military judge noted that he observed no emotional reaction in LCDR Card’s recitation of having learned about his mother’s kidnapping. The military judge further found that LCDR Card’s involvement as a Fleet mentor in the SAPR program was more about finding a way to be involved with students than it was related to the specific content of the program, and that LCDR Card had never been involved in the sexual assault prevention aspects of the program. The military judge also found that LCDR Card affirmatively stated that he would not hold Appellant’s silence against him if he chose not to testify, and that LCDR Card’s statement that something must have happened in order for the court-martial to take place was a literal answer and did not indicate he believed something illegal must have happened.
United States v. Bunton. Enlisted members convicted Appellant of "sexual assault and abusive sexual contact, conspiracy to commit extortion [a different victim], F2go, and false official statement. Sentenced to two years, TF, RiR, and a DD. But, he will get a retrial on the sexual assault and abusive sexual contact and the sentence. The NMCCA identifies the following issues.
(1) MJ error denying civilian defense counsel’s continuance requests.
NMCCA finds waiver when the Appellant voluntarily released the CDC. He might of had a decent argument otherwise. There were two COVID related delays totaling three months. The TC objected to a CDC delay because of witness issues and the VLC objected to this first (two month) delay from either party. CDC offered as part of the justification, "two emails between the military judge and the parties. In those emails, the military judge criticized filings by the military defense counsel and suggested that they acted “negligently,” cautioned them that they were officers of the court and not to compromise [their] license to practice law,” and suggested that counsel were “either unaware of [R.C.M.] 707 or planting poison pills in the record.”"
(2) the taint of systematic exclusion of junior enlisted Marines as potential panel members was not alleviated when two Corporals junior in date of rank to accused were added to the list of potential members.
(3) Ramos v. Louisiana.
(4) & (5) MJ (and NMCCA) error in failing to release medical and Physical Evaluation Board records.
(6) MJ error denying the testimony of a forensic psychiatrist as a witness. This error gets Appellant a new trial on some charges and sentence.
(7) IAC by failing to try and suppress statements to NCIS. NMCCA finds appropriate reasons offered by DC for not raising the motion. They thought the value added of the statements outweighed any devaluation--the statements supported their theme and theory and the appellant would not need to testify.
(8) Conviction for false official statement--factual insufficiency? Yup, good enough.
* MJ error denying the testimony of a forensic psychiatrist as a witness. The MJ erred because,
While we take no issue with a finding that most adults in the United States have a general understanding that alcohol can impair one’s memory, we sharply disagree with the military judge’s additional finding of fact that it could be assumed the members who would sit in judgment of Appellant would, based on either their personal drinking experience or what they had seen in movies, on television, or on social media, have sufficient knowledge in a case such as this, where the complex phenomenon of an alcohol-induced blackout was it issue, to properly evaluate the ultimate issue. Indeed, the military judge’s finding of fact that the members would possess sufficient lay knowledge so as to render expert testimony unnecessary was made in the face of a directly contrary—and unrebutted—assertion by Dr. Sierra[.]
The error is not HBRD (Government argued a different standard).
United States v. Armandariz, __ M.J. ___ (N-M Ct. Crim. App. 2022).
"Enlisted" members convicted him of various sex offenses, adultery, orders violation, and adultery, and they sentenced him to 18 months and a DD.
"He was charged with an orders violation for misusing his government office for sexual activity [Charge I]; two specifications of sexual assault by bodily harm for digitally penetrating Sgt November’s vagina and for penetrating her vagina with his penis [Charge II, Specifications 1 and 2]; one specification of abusive sexual contact for grabbing Sgt November’s breast [Charge II, Specification 3]; fraternization [Additional Charge I]; and adultery [Additional Charge II]."
(Note, he was sentenced in 2017 so he will have served confinement to his MRD, minus any other good time credits.)
This sexual assault case is before us a second time. In 2019, we found legal error when Appellant’s squadron executive officer [XO] approved a search authorization. The Judge Advocate General of the Navy certified that issue to the Court of Appeals for the Armed Forces [CAAF], where our decision was reversed and the case was remanded. CAAF affirmed one of Appellant’s findings of guilt for violating a general order by fraternizing—a finding we affirmed—because the search produced no evidence pertinent to that specification. We now review Appellant’s findings of guilt of two specifications for violating a lawful general order, one specification of sexual assault by bodily harm, one specification of abusive sexual contact by bodily harm, and one specification of adultery in violation of Articles 92, 120, and 134, Uniform Code of Military Justice [UCMJ].
Appellant raises 11 assignments of error.
1. Factual and legal insufficiency.
2. One of the three presiding military judges had a conflict of interest.
3. MJ abuse of discretion denying a motion to suppress evidence seized from his body, phones, vehicle, and wall locker.
5. MJ abused discretion in granting the Government’s Mil. R. Evid. 412 motion.
6. MJ erred letting the TC argue a “false exculpatory” statement.
7. MJ abused discretion when he declined to give the members an adverse inference instruction for the complaining witness’ refusal to provide her cell phone or for the Government’s decision not to obtain a search authorization for her phone.
8. TC's improper argument by speculating that a member’s question indicated the member already believed Appellant was guilty.
9. MJ abused his discretion in denying Appellant’s M.R.E. 412 motion as untimely.
10. Ramos v. Louisiana.
11. Cumulative errors.
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