Courts of Criminal Appeals

Air Force

United States v. Gammage (Air Force). The "counter" for post-trial delay in docketing a case with AFCCA stops when first docketed. Remands to complete or correct the record do not count when considering relief and prejudice for post-trial delay in forwarding a record of trial. The court said,

While we recognize that records of trial are remanded on occasion due to omissions or other defects, we decline to create a new requirement for cases that are docketed, remanded, and later re-docketed with this court. We find the original standards announced in Moreno, and its progeny, adequately protect “an appellant’s due process right to timely post-trial and appellate review.” Livak, 80 M.J. at 633.

​Finally, recognizing our authority under Article 66(d), UCMJ, we have also considered whether relief for excessive post-trial delay is appropriate even in the absence of a due process violation. See Tardif, 57 M.J. at 225. After considering the factors enumerated in Gay, 74 M.J. at 744, we conclude it is not.

Most of the AF remands are to correct the administrative requirements of completing actions (incorrect EoJs, for example) others, but fewer are remanded to complete the record because of missing items. See, e.g., United States v. Goodwater, ACM 40304, 2023 CCA LEXIS 231 (A.F. Ct. Crim. App. May 31, 2023) (remand for missing documents (sentenced Apr. 22)); United States v. King, ACM 39927, 2023 CCA LEXIS 383 (A.F. Ct. Crim. App. Sept. 11, 2023) (remand because CA failed to approve sentence); United States v. Lake, ACM 40168, 2023 CCA LEXIS 423 (A.F. Ct. Crim. App. Oct. 5, 2023) (13 exhibits unviewable by Judge Annexstad and parties); United States v. Lampkins, ACM 40135, 2023 CCA LEXIS 465 (A.F. Ct. Crim. App. Nov. 2, 2023) (MJ ruling on suppression motion missing/sentence adjudged Nov. 2020); United States v. McCoy, ACM 40119, 2023 CCA LEXIS 476 (A.F. Ct. Crim. App. Nov. 9, 2023), in which Judge Ramírez wrote (with Annexstad and Gruen on the panel). 

This case is before us a second time as we earlier addressed issue (8). On 31 October 2022, this court returned the record of trial to the military judge pursuant to Rule for Courts-Martial (R.C.M.) 1112(d) as the disc containing the audio recording from Appellant's trial was missing. The issue has since been resolved. The case was re-docketed with this court with a corrected record.

We remand this case for a second time as we find that the fifth issue concerning the convening authority's failure to properly consider and act on Appellant's suspension request has merit and must be addressed before we consider the remaining issues.

McCoy was sentenced in Apr. 2021, to two years confinement. Assuming only minimum good time credit, his MRD would have been Dec. 2022, and his FTD would have been Apr. this year.

By not including the remand period, does that encourage or condone sloppy work in situations where it has already taken a long time to deliver the record? Perception suggests the AF has significantly more correction remands than the other services. It seems that the field and others are basically putting the CCA (and appellate counsel) in the role of checking their work, thus increasing the workload of the appellate judges, CCA court staff, and appellate counsel. The current AFI 52-203 seems to have what's needed for a checklist.

​Gamage was sentenced in May 2022.

​On 5 May 2023, the Appellant submitted his assignment of error brief in which he raised one issue: the record of the trial was incomplete in that it was missing all eight attachments to the stipulation of fact, which was admitted as a prosecution exhibit during his court-martial. On 5 June 2023, we remanded this case to the Chief Trial Judge, Air Force Trial Judiciary, to address the missing attachments to the Appellant’s stipulation of fact.

The record was redocketed in June 2023. However, in August,

​Appellant submitted another assignment of error brief and again alleged that the record of trial was incomplete, in that it still was missing four of ten photographs that were part of Attachment 6 to the stipulation of fact. Appellant also raised one additional issue: whether the Government’s submission of an incomplete record of trial to this court subjected Appellant to unreasonable post-trial delay.

Why is the court and its staff having to double check work from the field on a regular basis?

For Gammage the delay didn't matter because there were no errors that prejudiced the Appellant requiring relief.

When people ask why appeals take time, Gammage is representative of one reason.

The appellate defense shop is tasked to have every record read to determine if there are meritorous issues or Grostefon issues, or whether it can be submitted on its merits. Here, while the appellate defense counsel was dealing with the record, she was not able to work on another, perhaps more deserving case. So too, at least Judge Annexstad had to read the full record. True, he or one of the other panel members had to read it anyway. But, in dealing with the post-trial errors he was distracted from reviewing another case or writing an opinion in another case. If your answer is "so what, it likely only took a few minutes for him and the staff to get the order written, signed, and sent,"--I'm not sure you should say that to his face.

Thus the long way round to recommending the court does initially count any remand time for post-trial processing purposes. The court could then still consider whether the extra time prejudiced the appellant. Or how about this. Whenever there is a "correction" remand, the court will automatically credit the appellant with 30 days off the confinement as a remedial and exemplary measure?

Or perhaps, ignore the issue. Compare with Gammage,

"Although not raised by Appellant, we note that the record of trial does not contain a copy of the recording of the preliminary hearing. R.C.M. 405(j)(5) requires the Government to ensure the preliminary hearing is recorded and R.C.M. 405(j)(2)(B) requires this recording be included as part of the preliminary hearing report. Additionally, if not offered as an exhibit, R.C.M. 1112(f)(1)(A) requires the preliminary hearing report be attached as part of the record for appellate review. Appellant has not claimed prejudice from this omission, and we find none. Moreover, despite this omission we were able to complete our Article 66(d), UCMJ, 10 U.S.C. § 866(d), review."

United States v. Reynolds, No. ACM 40308, 2023 CCA LEXIS 407, at *2 n.4 (A.F. Ct. Crim. App. Sep. 28, 2023). See also,

As noted above, the EOJ contains several errors that do not properly account for the disposition of all charges and specifications on the various charge sheets. Although we find no prejudice, Appellant is entitled to have court-martial records that correctly reflect the content of his proceeding. In accordance with R.C.M. 1111(c)(2), we modify the EOJ and direct that it be included in the record.

United States v. Truss, No. 202200198, 2023 CCA LELXIS __ (N-M. Ct. Crim. App. Dec. 28, 2023).

Or perhaps, remove the CA from post-trial, have the MJ issue a Judgment, require an accused to submit any brief in accordance with Article 38(c) within 30 days of being sentenced, and permit the MJ to hold a hearing on the 38(c) brief (this would allow the MJ to correct errors and address significant issues, and encourages compliance with defense counsel's obligations under Article 38(c)(1)) (As an aside, Article 38 is still good law, and nothing prevents the DC submitting a memorandum of errors). The MJ could also be tasked with the authorities under Article 60a (this would encourage uniformity in post-trial because the judiciary would have a better sense of results across the service, while at the same time allowing the MJ to consider special circumstances of individual. Provisions of Article 60b(a) could be rolled into the MJ's post-trial role. Article 60b(b) is already available to the military judge because of caselaw encouraging MJs to resolve issues earlier rather than later at a quasi-Dubay hearing. And see R.C.M. 1104(a). I'd be inclined to move R.C.M. 1108 to the judiciary.

See, e.g., Fed. R. Crim. Pro. 33 (new trial), 35 (correcting errors and reduction in sentence for "substantial assistance"), 36 (correcting clerical errors).

United States v. Schindley (Air Force).

"two assignments of error which we have reworded: (1) whether the military judge committed plain error during his Rule for CourtsMartial (R.C.M.) 910(e) factfinding inquiry, thereby violating Appellant’s right to remain silent[.]"
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United States v. Casillas (Air Force)

Appellant raises six issues on appeal, asking whether: (1) Article 120(b)(2) and (g)(7), UCMJ, 10 U.S.C. § 920(b)(2), (g)(7), are unconstitutionally vague because they fail to put defendants on fair notice of the specific charge against them; (2) as applied, Article 120(b)(2) and (g)(7), UCMJ, did not give Appellant fair notice when the military judge denied trial defense counsel’s request for a tailored jury instruction; (3) the military judge abused his discretion when (a) he ruled that the declarant-witness can state what the effect on the listener was, instead of the listener themselves, (b) the statement was character evidence that Appellant “wasn’t a good person,” and (c) he did not conduct a Mil. R. Evid. 403 balancing test[.]

AFCCA finds no problem with one of the victim's texts. "After the sexual assault, SF texted HC, stating “Your friend is not a good guy.”" And, "She testified she communicated in the text message to HC, “That [Appellant] wasn’t a good person.”"

​The Government then asserted it wanted to elicit the statement as “effect on the listener.” The Government averred that it expected HC to testify that this text “played into her” meeting with SF that morning. The Defense objected, asserting SF could not attest to the effect on the listener. 

The MJ overruled the objections and gave a limiting instruction. AFCCA finds no error.

The Government did not offer the message as evidence of Appellant’s character, the Defense did not object on those grounds, and the military judge did not allow it to be considered for that purpose. The military judge specifically limited its use “not for the truth of the matters contained in the prior statement” but “for its effect on any listener of that statement.” The members each affirmed they could follow the military judge’s instruction.

Army

United States v. Nieves-Vele (Army).
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United States v. Herman (Army). The Appellant challenged the denial of a motion to suppress statements part way through a CID interrogation when he "invoked." The Appellant said "Imma have to 'invoke' on this one" (emphasis added) followed immediately by "When this is over Imma have to pay somebody because this right here, no, this is definitely not fair."" The court considers this to be a limited invocation which the CID agent honored by moving on to a different topic.

As the appellant concedes his second statement was at best an indication of a future intent to retain an attorney after the interview was complete, it also did not require a cessation of questioning. The appellant's subsequent statements therefore continued to be voluntary. This finding of voluntariness is readily ascertained from the circumstances preceding, and concurrent with, the alleged invocation.

On sentencing, the sentence was affirmed, even after reassessment, because, 

Here, appellant's sentence for the Article 117a offenses violates the ex post facto clause because application of Exec. Order 14,062 inflicted a greater punishment on appellant than the law annexed to the crime when committed. Busch, 75 M.J. at 88. At the time of the alleged offenses, a period spanning March 2020 to 24 May 2020, an enumerated maximum punishment for Article 117 a did not exist. The offense under Article 117a is neither included nor closely related to any other UCMJ offense under R.C.M. 1003(c)(1)(B)(i). Furthermore, under R.C.M. 1003(c)(1)(B)(ii), there is no analogous federal offense, nor an offense that has traditionally been used to charge servicemembers under the same or factually similar circumstances. Consequently, the appropriate maximum punishment was a sentence of four months confinement and forfeiture of two-thirds​ pay per month for four months. Beaty, 70 M.J. at 40.

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​United States v. Colbert (Army). A GP case to murder for which his confinement was LWOP.

The alleged errors meriting discussion involve two general areas: (1) whether the government failed to disclose or preserve evidence; and (2) whether appellant's trial defense counsel were ineffective.

As to the government's alleged failure to disclose or preserve evidence, we find the evidence was not favorable and material to the defense. The evidence was, in the light most favorable to the defense, only "potentially useful," and appellant did not file a specific discovery request. After our review of the record, even if the government was required to disclose the evidence in response to a generic defense discovery request, a reasonable probability of a different result at trial does not exist.
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Appellant alleges his trial defense counsel were ineffective, in multiple ways, during both the findings and pre-sentencing phases of his case. We determine appellant's counsel were not ineffective during the findings phase and, even assuming ineffectiveness at that stage, appellant was not prejudiced. We affirm appellant's conviction, consistent with his plea, to intentional (unpremeditated) murder.

We determine, however, appellant's defense counsel were ineffective in the pre-sentencing phase and appellant was prejudiced. We set aside appellant's sentence and authorize a sentence rehearing in our decretal paragraph.

The "discovery" issue is the absence or loss of "blood draws" of the Appellant which would have been relevant to his state of intoxication.

The Dubay hearing established that blood draws were taken at a hospital but destroyed soon after and the blood draw was never sent to another lab for testing. The hospital test result was negative for marijuana or drugs. Keep in mind, that when they blood at the ER the test result is not a forensically sound one because the result is used to determine care not evidentiary value. 

A second blood draw was commander ordered, processed through the AFMES, and showed a .bac of 0.069, but was not tested for drugs or anything else. The sample was retained until about a year after the Appellant's conviction. According to the Dubay judge the Trial Counsel "did not specifically know and never realized" about the existence of this test. Huh, even though it was "obliquely referenced in a" CID AIR. The AIR was given the defense but apparently no effort was made by the TC to investigate further. (Editorially, it seems inconceivable a TC would not investigate this further for their own case investigation and preparation, forget about potential discovery.) 

At some point it was developed that there were "observations regarding Appellant's possible ingestion of a substance like flakka (sic)." Flakka (alpha-PVP), is a dangerous drug that is similar to the street drug commonly known as bath salts. Flakka is typically white or pink in color, and is found in crystal form. the street title is Gravel. Generally, the drug can cause paranoia and hallucinations that may lead to violent aggression and self-injury.

The court determines that the defense generic discovery request for lab reports or a later specific request upon receipt of the AIR and the government failure to respond to it would have resulted in a different result at trial--"It does not."

When it comes to IAC at sentencing, the court is concerned enough to set aside the sentence and allow a rehearing on sentence only.

During the pre-sentencing phase, the defense counsel called four witnesses and appellant gave an unsworn statement for a combined total of less than seventy pages of witness testimony in the verbatim record. Counsel also introduced a twenty-five page "good soldier book." The four defense witnesses were appellant's step-mother, biological mother, father, and Lieutenant Colonel (L TC) -a psychology expert. Defense counsel did not call any additional civilian or military character witnesses identified by either appellant or his step-mother to testify regarding appellant's seven years of service, including a combat deployment.

The Dubay military judge found appellant's trial defense team did not even interview four military pre-sentencing witnesses proffered as potentially favorable by appellant because the civilian defense counsel "decided he wanted the defense's sentencing case to focus on the appellant's remorse, accountability and family." TheDubay military judge found the defense team, for this same alleged tactical reason, did not interview any witnesses on a list of "around ten names with contact information" provided by appellant and his step-mother identifying defense favorable "family members and childhood/school friends."

We find defense counsel were ineffective for failing to interview approximately fourteen pre-sentencing witnesses proffered by appellant as potentially favorable. See United States v. Saintaude, 56 M.J. 888 (Army Ct. Crim. App. 2002) (holding appellant's defense team were ineffective during the sentencing phase for failing to investigate appellant's background for potential mitigation evidence). Defense counsel's alleged "tactical decision" to pursue a certain strategy, while declining to interview fourteen potentially favorable pre-sentencing witnesses, is not within the wide range of reasonable professional assistance expected of a defense attorney. Defense counsel's failure to interview several "family members and childhood/school friends" appears to be in direct contrast to
the stated objective of focusing the pre-sentencing case on appellant's "family."

Not reasonable in this case. Like death cases, LWOP is different. A robust case in sentencing for death or LWOP cases would seem to be de rigueur, especially when there has been combat-related deployments. (This is so where there are cases in which interviewing witnesses may be counter-productive or "perilous.")

[CAAF] has also recognized the "special distinction" of combat service. United States v. Demerse, 37 M.J. 488, 492 (C.M.A. 1993).

United States v. Seal, 38 M.J. 659, 663 (A.C.M.R. 1993).

After the military judge accepted appellant's guilty pleas and announced his findings, defense counsel called one witness and introduced seven exhibits. Defense counsel did not, however, introduce any evidence of appellant's awards and decorations. During closing argument on sentencing, defense counsel stated that appellant "has spent nearly 18 years in the Navy. Those years were honorable service, much of it at sea." Defense counsel did not even then enumerate appellant's awards and decorations for the military judge.

United States v. Demerse, 37 M.J. 488, 490 (C.M.A. 1993).