Court of Appeals for the Armed Forces

​No. 24-0138/MC. U.S. v. Juan I. Campos. CCA 202200246. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:
 
DID THE MILITARY JUDGE ABUSE HIS DISCRETION BY ADMITTING AND CONSIDERING, OVER DEFENSE OBJECTION, ALLEGATIONS OF ADDITIONAL MISCONDUCT IN THE UNSWORN VICTIM IMPACT STATEMENT?
 
Appellant will file a brief on or before September 16, 2024; Appellee will file an answer brief no later than 30 days after the filing of Appellant's brief; and Appellant may file a reply brief no later than 10 days after the filing of Appellee's answer brief.

Do we have a volunteer? The court has decided Leipart

I can't post because I was involved early with the appeal or have a similar issue I'm briefing for NMCCA. It's the duty to the client thingy≥.

A volunteer could send us a draft at [email protected]. We will post it. We have in the past posted unsolicited offerings under the person's name, pseudonym, or anonymity. The only editing we've done is to correct some typos.

United Sates v. Swisher

Courtesy of "Anonymous."

In Swisher, the CAAF clarifies that a civilian prosecution may qualify as a “closely related case” for sentence comparison purposes.
 
The appellant and a civilian “sexually assaulted the same young woman at the same time and in the same manner.”  In state court, the civilian received a suspended sentence and probation.  At court-martial, the appellant received a stronger sentence: fifty-four months confinement, reduction to E-1, and a DD. 
 
Before the NMCCA, the appellant argued that the civilian’s case was “closely related” and the sentences were highly disparate.  But the NMCCA declined to compare the two cases, in large part because the other case was adjudicated by a civilian jurisdiction.
 
The CAAF holds this was error, stating: “the mere fact that the sentence in Appellant’s case was the product of a court-martial proceeding and the sentence in [the civilian’s] case was the product of a civilian criminal proceeding is not necessarily dispositive of the issue of whether the two cases are ‘closely related.’”  As such, the lower court’s decision was “influenced by an erroneous view of the law” and, therefore, constituted an abuse of discretion.
 
Turning to remedy, the CAAF determines it would be inappropriate for it to conduct the sentence appropriateness review directly, particularly as it is a heavily fact-driven analysis.  The proper remedy is remand for consideration by the CCA under the correct legal principles.
 
Judge Sparks dissents.  Although he agrees that a civilian prosecution may qualify as a “closely related case,” Judge Sparks argues that the majority goes too far towards requiring the CCA to engage in a sentence comparison analysis.  “The lower courts may compare the sentences of civilian and military defendants if they choose to, but they are not required to do so.”

​United States v. Armstrong

Here, the military judge declined a motion to recuse based on assertions the military judge "actual and apparent bias" toward the defense. On appeal, the Appellant proceeded on just the appearance of bias. The law on judicial recusal for apparent bias is clear. Looking at the issue objectively, a military judge must recuse themself when "a reasonable person knowing all the circumstances would conclude that the military judge’s impartiality might reasonably be questioned.” The denied motion is reviewed for an abuse of discretion.

This case is more about courtroom presentation than the law and is a reminder that we must all mind what we say and how we say it to maintain the solemnity of the occasion.

The Code of Conduct for federal judges requires that,

A judge should be patient, dignified, respectful, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity. A judge should require similar conduct by those subject to the judge’s control, including lawyers to the extent consistent with their role in the adversary process.

Here's a piece for the National Judicial College by retired judge Benes Aldana (some may know and recognize retired military judge CAPT Benes Aldana, USCG): When It Comes to Civility in Court, It’s Do or Die. 5 May 2023.

In Anderson, the court does not get into specifics--rather generalities about the various interactions. The court did drop of footnote that "the civilian defense counsel was discourteous to the military judge and that the military judge acknowledged that she needed to work on her patience."

The Appellant's CAAF briefs are at  (brief) (reply brief) and the Appellee here (brief). It appears some of the interchanges were not transcribed, but we have the benefit now having access to the audio. The recusal litigation got a bit weird when the defense called the bailiff to testify so as to make a record. 

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United States v. Guihama

The defense tried to get the military judge to suppress the Appellant's statements because they were not sufficiently corroborated. Appellate review asks whether the military judge abused her discretion in denying the motion. United States v. Jones, 78 M.J. 37, 41 (C.A.A.F. 2018). 

This case presents one of several situations of mosaic litigation--having enough bits of information (tiles) and then making them fit into a mosaic--a picture, sure with gaps (around the tiles) but sufficiently arranged to make a pretty clear picture. 

The defense does this mosaic litigation with character witnesses of different ranks, spread over years, and at different units.

See, e.g., United States v. Yeauger, 27 M.J. 199, 202 (C.M.A. 1988) ("Adding to the mosaic of reliability was the solid coincidence of Callahan's statement with the physical evidence found at the scene of the offenses."); United States v. Brewer, 61 M.J. 425 (C.A.A.F. 2005); Ali v. United States, 398 F. Supp. 3d 1200, 1213, 2019 U.S. CMCR LEXIS 4, *12, 2019 WL 3334382 (C.M.C.R. 2019).

The court walks us through the M.R.E. 304(c)(1) and especially the United States v. Whiteeyes, 82 M.J. 168 (C.A.A.F. 2022), analysis.

1. Corroboration requires independent evidence.

[Is] the proffered evidence is, in fact, independent evidence? [Which means it] cannot consist of other uncorroborated confessions of the accused that would also require corroboration, but independent evidence can be either direct or circumstantial.

2. All the independent evidence has to do is "raise an inference" that the accused's statements are true.

a. [Does] each piece of independent evidence “raises an inference of the truth of the admission or confession?”

b. [Do] the pieces of evidence “tend to establish the trustworthiness of the admission or confession.” 

The court then makes a mosaic of the facts to conclude that there was no abuse of discretion.

3. The amount of evidence is "slight."

Not raised as a separate issue at trial was an argument that the statements were involuntary because of 

hours of manipulative and repetitive questioning in four different locations, amidst dozens of adamant denials, and [it was] the stated intent of the FBI agent to not stop questioning until [Appellant] confessed to a crime of which they admittedly had no other evidence.”

At trial and on appeal the Appellant was suggesting that the circumstances surrounding the statements made them unreliable.

​We are saying that it was false and it’s not supported by corroboration . . . .” Thus, because Appellant conceded that his confession was voluntary and because the granted issue only deals with corroboration, we have no reason to address the length, location, or method of the interrogation. Instead, we focus only on whether Appellant’s statements that he fondled his niece and nephew were sufficiently corroborated in accordance with Whiteeyes.

United States v. Tapp

Here we have another example of how arranged or impromptu "bridge-the-gap" can open a gap for an appellant to walk through--although not successfully in this case because the court found no error.

​Immediately following the trial but without defense counsel present, the military judge held an impromptu ex parte session with trial counsel. He criticized trial counsel’s performance, to include the fact that they had asked the panel members to impose a period of confinement of “only” eleven years. Trial counsel soon notified the defense of this ex parte session. The defense counsel then moved to disqualify the military judge from further proceedings, citing both the ex parte session as well as other comments and rulings made by the military judge during trial.

There was a post-trial motions session at which the new judge determined there was no problem. So, at CAAF,

We are required to apply an abuse of discretion standard to [the] post-trial analysis. And upon doing so, we hold that there is an insufficient basis to conclude that [the substituteMJ]  abused his discretion when he determined that relief is not warranted in this case. Consequently, we answer the granted issue in the negative and affirm the decision of the NMCCA.

Is it not time to stop with the BTG?