Air ForceUnited States v. HogansThe Appellant had two complaints, (1) a discovery disclosure the day before trial means the evidence should have been excluded, and (2) the MJ's sua sponte R.C.M. 917 motion and allowing the government to reopen their case showed bias. AFCCA decides neither complaint is valid and so no relief. An immunized witness against the Appellant was interviewed by the Appellant's DC the day before the trial and asked about a video she had recorded on her smartphone. She found the video and gave it to her DC, who gave it to TC. AFCCA notes that OSI had DFE'd the phone (with some problems), and the download was available to the defense had they visited OSI or asked for a copy--but there's no evidence they did that (the DFE had been done about 13 months before trial). On the other hand, neither OSI (nor TC?) had found the relevant video either. At trial, trial defense counsel moved to exclude video evidence of Appellant’s hands with LSD tabs in his palms due to a purported discovery violation. The Government objected and explained they had provided the evidence to the Defense as soon as they received it; they had only received the evidence the night before trial. The trial judge ruled the discovery of the evidence on the eve of trial was not due to a discovery violation because the Defense did not request the evidence with “sufficient precision to enable the trial counsel to locate it.” Nonetheless, the trial judge offered the Defense a continuance, which they rejected due to Appellant’s desire “to pursue justice.” Trial defense counsel’s preferred remedy was exclusion. The trial judge determined exclusion of the evidence would be “too severe considering the circumstances of the late disclosure” and “hinder the truth-finding function” of the court. The trial judge admitted the 17-second video[.] Let's look at this from the defense perspective (based on the information in the opinion). It appears the defense was aware such a video existed--enough to ask the witness to look for it. Had they gone to OSI or gotten a copy of the DFE they could have looked for it themselves in the privacy of their office. (By experience, OSI will make accommodations for private viewings at their offices.) Had DC found the video they would have known (1) OSI and TC hadn't, (2) its evidentiary value against the Appellant; and (3) could have remained silent about it with the understanding the TC didn't have the video otherwise, it would have been discovered already. On the other hand, DC could have believed the video would show something other than MDMA, such as CVS Extra Strength Acetaminophen (Tylenol). That could be a Brady-plus moment for the potential suprise impeachment of the government witness.
From the prosecution perspective, was it necessary to call a witness? The Appellant's case was the OSI agent's first drug investigation, this led to an issue on appeal, and part of the AFCCA's decision--all of which took time and delay at trial to get the witness and have the testimony, and on appeal. Could they not have asked the MJ to take judicial notice of the Schedule--some pieces of paper and a few MJ minutes to take judicial notice--done, and no issue on appeal? "When a substance is charged under Article 112a(b)(3), UCMJ, the government must either introduce evidence that the purported substance is listed in 21 U.S.C. § 812 [hereinafter the Controlled Substances Act] or request the trial court take judicial notice of that fact. The government did neither in this case." United States v. Bradley, 68 M.J. 556, 557 (Army Ct. Crim. App. 2009) (emphasis added). See generally, United States v. Paul, 73 M.J. 274, 278 (C.A.A.F. 2014) ("had the Government requested the military judge to take judicial notice that Ecstasy is a Schedule I controlled substance at trial, the military judge would have done so, even over a possible objection by the defense."). Paul has a useful survey of Mil. R. Evid. 201, and one use that may have been a bit too creative. Used wisely, judicial notice is a rule for efficiency. On appeal, the government appears to the court to make an unnecessary concession--in this case. On appeal, the Government appears to concede they committed a discovery violation stating, “The failure of trial counsel to provide either access to AB [BM]’s phone or a copy of the data extracted from it therefore represented a violation of trial counsel’s obligation to provide discovery to Appellant under R.C.M. 701(a)(2)(A).” Despite Government’s attempt to concede error, the record simply does not support the contention the Government failed to provide access to the extraction. No one—not the trial judge, not the trial counsel, nor the trial defense counsel—suggested trial counsel failed to provide access to AB BM’s phone, or the copy of the data extracted from it. Regardless of this position on appeal, the Government maintains the remedy the trial judge chose was appropriate. There was a time when the rules and practices prohibited the government from reopening its case after an R.C.M. 917 motion. That has changed. This change is why the defense counsel does not normally make R.C.M. 917 motions at the close of the government's case or even after all the evidence is in. Allowing the MJ to sua sponte raise the issue does lead to an appearance of partiality, but we can wait for a better vehicle to explore that authority. ArmyUnited States v. ChapmanThe military judge convicted appellant, contrary to his pleas, of one specification of solicitation, and one specification of possessing child pornography, one specification of distributing child pornography, one specification of receiving child pornography, and one specification of viewing child pornography. Of the appellate issues, the defense multiplicity motion gets written up and relief in the reduction of confinement to 24-months. In the process, the court addresses the MJ's sua sponte special findings because "The impact of the military judge's special findings on appellant's unreasonable multiplication of charges analysis is one of first impression." It's a CP case with a lot of images, but where only a few images were charged during a relevant time frame but many found their way into evidence. What the MJ did with the special findings was effectively make a general finding of guilty but mixed findings as to what images (exhibits) formed the basis for that finding. The military judge cited five unique files in support of her special findings. Two of those files were used to support guilty findings for the distribution and viewing specifications. In her discussion on the record with defense counsel concerning his renewed motion for unreasonable multiplication of charges for sentencing, the military judge posited that appellant must have viewed the files to decide which files to distribute. Quiroz asks: (1) Did the accused object at trial. Here, yes. (2) Is each charge and specification aimed at distinctly separate criminal acts? [W]hile we note that each of the offenses addresses a distinct criminal purpose, by not connecting the offenses to addresses a distinct criminal purpose, by not connecting the offenses to a specific date either on the charge sheet or at trial, the government failed to identify which images were possessed, distributed, received, and viewed at any particular time, severely limiting the factfinder's ability to establish distinct criminal acts. None of the specifications listed any specific images or video files and each specification charged the exact same range of dates for the offenses. To make matters more complicated, even to the extent that the government elicited testimony that established when appellant received or transferred a particular image, the military judge's special findings limited the value of that testimony. (3) Does the number of charges and specifications misrepresent or exaggerate the appellant's criminality? (4) Does the number of charges and specification unreasonably increase the appellant's punitive exposure? No, but "That said, given the significant overlap between the files that the military judge identified in support of her special findings for each specification, we cannot say that each specification was aimed at distinctly separate criminal acts. Appellant was unreasonably exposed to increased punitive exposure[.]" (5) Is there any evidence of prosecutorial overreaching or abuse in the drafting of the charges. As such, convicting and sentencing appellant, as the military judge did, exaggerated appellant's criminality in relation to the available evidence. Instead of bearing two convictions, one for viewing and distributing child pornography and one for receiving and possessing child pornography, appellant was burdened with the weight of four convictions. Finally, the military judge's decision to sentence appellant consecutively for each specification exacerbated her error. While the adjudged sentence for each specification was well under the statutory maximum for each offense, the decision to decline appellant's request for merger for sentencing purposes and then sentence him consecutively for each specification unreasonably increased his sentence. After a sentence reassessment the adjudged 34-months was reduced to 24. United States v. Resutek (recon)The court first decided the case in October 2024. United States v. Resutek, ARMY 20220431, 2024 CCA LEXIS 459 (Army Ct. Crim. App. 28 Oct. 2024) (mem. op). "On 27 November 2024, appellant requested this court reconsider whether the appellant's providence inquiry sufficiently established his specific intent element for the fraudulently making worthless checks offenses." Appellant submitted the case upon its merits. And some merit it does possess." We directed the parties to brief whether appellant had set up matters inconsistent with his guilty pleas. Considering the entire record, we answer "yes" for all but the findings of guilty for a wrongful marijuana use and worthless check offenses. Throughout the Care inquiry the Appellant frequently brought up alcohol in relation to the check offense (where the offense charged requires a specific intent), statements raising concerns about his mental state, and statements that sounded in duress in relation to the absence offenses. The providence inquiry for the absence offenses, order violation, and desertion specifications were littered with statements indicating appellant was under the effects of significant mental stressors at the time he engaged in some or all of the charged misconduct, or he felt compelled to engage in misconduct out of an obligation to protect his friend. For instance, the military judge did not inquire further when appellant stated "I had no intention on even living" and was "so mentally unwell," beyond clarifying appellant felt like he had no choice but to desert his unit. Similarly, the military judge's inquiry on duress was largely limited to exploring whether appellant could have requested leave from his acting commander. ACCA finds the Appellant provident to the marijuana use and bad check offense. And orders a rehearing on the pleas set aside and a new sentencing hearing. Judge Fleming, concurring writes, Although appellant agreed with the military judge that appellant had no generic "legal justification or excuse" as to any of these offenses, the military judge did not advise appellant regarding the specific "legal justification or excuse" of duress. The military judge did not advise appellant regarding duress nor resolve with appellant whether the defense of duress applied in his situation. The stipulation of fact was also silent as to the issue of duress (or any other defense) and whether appellant was aware of the defense of duress and agreed it did not apply to his situation. Although appellant's concerns regarding "danger," a possible "higher moral calling," and having "no other choice" may have never constituted a viable duress defense at that time he committed or through the entirety of his offenses, the point is we cannot resolve with any level of certainty whether the defense did or did not exist because the military judge failed to develop any factual finding in either direction on the record to clarify the inconsistency.
3 Comments
Scott
1/24/2025 08:32:21
Good write up, thanks
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Cloudesley Shovell
1/24/2025 10:10:36
In reference to Hogans, may I respectfully opine that undefined acronyms are the new Law Latin.
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1/26/2025 01:53:45
Or, uuum, well could we say JAG Speak. Perhaps we need a dictionary like the DoD Dictionary of Acronyms.
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