Court of Appeals for the Armed Forces

There are several new grants of interest.

No. 22-0065/NA. U.S. v. Willie C. Jeter. CCA 201700248. On further consideration of the petition for grant of review, the briefs filed by the parties, and oral argument, it is ordered that said petition is granted on the following specified issues:
 
I.   IN UNITED STATES v. CRAWFORD, 15 C.M.A. 31, 35 C.M.R. 3 (1964), THIS COURT HELD THAT IN THE COURSE OF PANEL SELECTION A RACE CONSCIOUS PROCESS IS PERMISSIBLE FOR THE PURPOSE OF INCLUSION. HOW DOES THE CRAWFORD DECISION AFFECT THE ANALYSIS OF THIS CASE UNDER AVERY v. GEORGIA, 345 U.S. 559 (1953)?
 
II.  IN LIGHT OF APPELLANT'S STATEMENT AT ORAL ARGUMENT THAT RACE IS AN IMPROPER CONSIDERATION IN DETAILING PANEL MEMBEMEMBERS, SHOULD COURT OVERRULE UNITED STATES v. CRAWFORD, 15 C.M.A. 31, 35 C.M.R. 3 (1964)? (Emphasis added.)

The case was tried in 2017, NMCCA affirmed in 2019, CAAF summarily vacated the opinion in 2020 with a remand for review in light of United States v. Bess. In Octobter 2021, NMCCA 

​We find that the convening authority did not violate Appellant’s equal protection or due process rights, and affirm on this AOE. We further adopt our holdings on AOEs II-XI, consistent with this Court’s prior published opinion in Jeter I and once again conclude the findings and sentence are correct in law and fact and that no error materially prejudiced Appellant’s substantial rights.
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​No. 22-0237/AF. U.S. v. Caleb A.C. Smith. CCA 40013. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:
 
I.   WHETHER THE MILITARY JUDGE ERRED IN ADMITTING TEXT MESSAGES AND TESTIMONY AS AN EXCITED UTTERANCE RELATED TO THE ALLEGED VICTIM'S BELIEF THAT SHE WAS RAPED WHERE SHE HAD NO MEMORY OF THE EVENTS IN QUESTION.
 
II.  WHETHER THE EVIDENCE WAS LEGALLY INSUFFICIENT BECAUSE THE ALLEGED VICTIM WAS CAPABLE OF CONSENTING AND WHERE, EVEN IF SHE WAS NOT CAPABLE OF CONSENTING, APPELLANT REASONABLY BELIEVED THAT SHE DID CONSENT.

​No. 22-0259/AR. U.S. v. Erick Vargas. CCA 20220168. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862 (2018), it is ordered that said petition is granted on the following issue:
 
WHETHER THE ARMY COURT ERRED IN ITS ABUSE-OF-DISCRETION ANALYSIS BY REQUIRING THE MILITARY JUDGE TO CRAFT THE LEAST-DRASTIC REMEDY TO CURE THE DISCOVERY VIOLATION.

​Another late discovery case.

On Friday, March 4, 2022, prior to the start of appellee's contested court martial, the government re-interviewed SPC. During this interview, SPC stated appellee called her a "beauty queen" and kissed her on the forehead 3-4 times" prior to the sexual assault. This was new information, and the government failed to disclose it to the defense. 

On Monday, March 7, 2022 an Article 39(a), UCMJ hearing was conducted regarding motions filed pursuant to Military Rules of Evidence 404(b) and 412, Specialist testified during the hearing regarding the events surrounding the charged 0ffenses but, again, the new information was never revealed.

At the contested trial the following day during SPC direct examination, the government counsel asked questions about the events leading up to the charged offenses. Specialist[testified that appellee "started grabbing my head and kissing my foreh[ead], telling me I was a beauty queen[.]" 

Defense counsel immediately objected asserting it was "the first time we have ever heard this testimony." A debate ensued as to when the government first learned about this new information. Initially, the trial counsel asserted the government learned of the new information from SPC after the Article 39(a), UCMJ, session on Monday, March 7, 2022, acknowledging the information was not immediately disclosed.

The military judge excused the trial counsel from further participation in the trial and the government detailed new counsel. This new trial counsel acknowledged that the government knew about the new information on Friday, March 4, 2022, conceding the government failed to disclose to the defense the new statement by appellee to SPC.

The military judge concluded the government's nondisclosure of the new information was not "willful misconduct."

ACCA held that the military judge erred in dismissing with prejudice because a mistrial under R.C.M. 915(a) was an appropriate and a least drastic remedy.

No. 22-0249/CG. U.S. v. Fernando M. Brown. CCA 001-69-21. On consideration of the petition for grant of review of the decision of the United States Coast Guard Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:
 
ARE APPELLANT'S CONVICTIONS UNDER ARTICLE 91 LEGALLY INSUFFICENT WHERE THERE IS AN ABSENCE OF EVIDENCE THAT THE CHARGED CONDUCT OCCURRED IN THE SIGHT, HEARING, OR PRESENCE OF THE ALLEGED VICTIMS WHILE THEY WERE IN THE EXECUTION OF THEIR OFFICE?

The Chief’s Mess of USCGC Polar Star had a text message group comprising all the cutter’s senior enlisted personnel to coordinate, maintain camaraderie while in drydock, and pass work-related information. Appellant sent several offensive texts to this group, including the target of each. In one, he sent a photograph of a fellow chief petty officer, adding a crudelydrawn penis and scrotum to his hard hat. In another, he belittled the sexual orientation of a fellow chief petty officer by sending the group a high school yearbook photograph of her, adding the caption, “Voted most likely to steal your bitch.” Pros. Ex. 5 at 1. Finally, he ridiculed a senior chief who was the senior member of the Mess by sending a picture of a scantily-clad man with a large Dallas Cowboys image on his back, adding the caption, “Found out why [the senior chief] missed chiefs call.” Pros. Ex. 9 at 1.

In a separate incident, Appellant sent an unsolicited video to Petty Officer Third Class (PO3) C.L. The video depicted a man holding a candy wrapper and unwrapping it to reveal his penis, with the caption, “Heard you have a sweet tooth.” PO3 C.L. was, at the time, attending “A” School for her rating, but had previously served as a non-rate seaman aboard the Polar Star with Appellant.

[W]e turn to the question of whether disrespect communicated through remote technology such as a text message is actionable under Article 91, UCMJ. This, it appears, is an issue of first impression.