Courts of Criminal Appeals

Air Force

United States v. Myers. The Appellant challenged the factual and legal sufficiency of his conviction for communicating a threat. He was convicted in September 2022. He argued that any threat was conditional and regardless it was for the legitimate purpose of getting mental health treatment.

Appellant phoned the Joint Base Pearl Harbor-Hickam Mental Health Clinic (Clinic) and expressed a desire to self-harm. While still on the phone with Appellant [and telling the Appellant to not hang up], the Clinic contacted Appellant’s unit and requested assistance escorting Appellant to the Clinic. They also asked for assistance in retrieving Appellant’s medication, which was causing negative side effects.

The Appellant and his unit got safely to the clinic and initially he was calm. However, that attitude changed, so he was taken to a private office where he made various statements that turned into a basis for his prosecution.

​Appellant indicated on an intake form that he wanted to harm members of his leadership because of the frustration he was experiencing in trying to separate from the military

As time passed it appears the Appellant got more frustrated, agitated, and jittery.

According to the technician, Appellant verbally reiterated that he wanted to “kill” “people in his chain of command,” that he had been waiting for a year to separate from the military, and that if he was forced back to work the following day he would “hurt the next person” who told him he had to “wait” to be with his family in Tennessee.

Appellant told the technician that Appellant’s thoughts of harming his leadership reflected his “will” and that “acting on his plan of hurting his leadership [wa]s something he ha[d] to do.”

Appellant then met with a psychiatric nurse practitioner and told her he was upset, having a hard time sleeping, and had thoughts of hurting other people—specifically his leadership team and people in the escort party. Appellant also informed the nurse practitioner that he “had thoughts of wanting to kill other people for many years,” but over the last day “the thoughts ha[d] changed to desires.”

He explained that people in his command staff lied to him, and that he “wanted to cut their tongues out and staple [them] to their chests.” Appellant expressed that he had wanted to get out of the Air Force for “quite some time” but was being prevented from leaving.

Finally, he told the nurse practitioner he could not “leave and be safe” and “felt like he would act on those thoughts if he left.”

Upon the psychiatric nurse practitioner’s recommendation, emergency medical technicians transported Appellant to Tripler Army Medical Center (TAMC) by ambulance. At TAMC, Appellant remained irritated and impatient. Appellant, while accompanied by the escort party, was placed in a private, padded room in the back of the emergency room where he could not harm himself or others.

Multiple treatment personnel came and went from the room to “assess” Appellant, which included routine medical checks and questions about Appellant’s mental health history. During questions about his mental health history, Appellant, while his section chief remained in the room with Appellant’s permission, told a mental health professional (characterized as a “nurse” or “somebody in training”) that “if he had to wait one more time, that he was going to cut out the commander’s or the flight chief’s tongue and staple it to their chest[ ].”

Appellant’s tone was described as “almost like a normal conversation.”

​When a psychologist arrived, the section chief left the room. After some time passed, the escort party observed the psychologist and Appellant leave the room. Appellant asked several times to leave the hospital, but the psychologist told Appellant that he could not leave. Appellant became “heated” and yelled at the psychologist, saying that he was not staying and that he was going to walk out of the facility. Eventually, Appellant quieted down, became emotional, and started to cry. The staff gave Appellant a phone to call his wife. 

The court found the statements insufficiently conditional "Appellant’s statements expressed a present determination to injure his superiors and was conditioned only on the status quo of Appellant’s stalled separation status—something which obviously could take place." It seems that the Appellant's words were considered serious but also a sham to help him speed up his administrative discharge and not the result of any underlying mental health issue or one of the negative side effects of the medication he was taking. Basically, the court concludes that the reason for the statements was to speed up the discharge and not to get mental health treatment. The court distinguishes three cases where the CCA had concluded such statements were to mental health care: United States v. Cotton, 40 M.J. 93, 95 (C.M.A. 1994); United States v. Gean, 71 M.J. 553, 554–55 (Army Ct. Crim. App. 2012); and ​United States v. Wright, 65 M.J. 703, 705 (N.M. Ct. Crim. App. 2007).

Ultimately, the court found that for  his guilty pleas to two specifications of making a false official statement and two specifications of wrongfully using a controlled substance (delta-9-tetrahydrocannabinol) and a members conviction of one specification of communicating a threat, the military judge's sentence to a bad-conduct discharge, confinement for 165 days, and reduction to the grade of E-1; plus a waiver of all automatic forfeitures for a period of six months, for the benefit of Appellant’s spouse and two dependent children, was appropriate.

The court did drop an interesting footnote.

​The court is mindful that there are contours of the new factual sufficiency review standard that arguably could impact applications of the rule as discussed by this court and our sister service courts. See United States v. Coe, 84 M.J. 537, 542 (A. Ct. Crim. App. 2024) (en banc); United States v. Harvey, 83 M.J. 685 (N.M. Ct. Crim. App. 2023), rev. granted, __ M.J. __, No. 23-0239, 2024 CAAF LEXIS (C.A.A.F. 10 Jan. 2024); see also United States v. Csiti, No. ACM 40386, 2024 CCA LEXIS 160 (A.F. Ct. Crim. App. 29 Apr. 2024) (unpub. op.). These contours are not dispositive in this particular case as the evidence does not make determination of factual sufficiency a close call for the specification at issue. Even if we applied our previous factual sufficiency review standard, we would not grant relief as we ourselves are convinced of Appellant’s guilt of the specification at issue beyond a reasonable doubt.

In re Vargas, __ M.J. ___ (A.F. Ct. Crim. App. 2024).

For the reasons set forth below, we deny the petition because it is not in aid of our existing jurisdiction. We hold that Article 37(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 837(c), abrogated this court’s authority to grant relief premised upon apparent UCI. Hence, Petitioner’s interlocutory request for an extraordinary writ to issue relief which we would be precluded from granting in the course of our normal Article 66(d), UCMJ, 10 U.S.C. § 866(d), review is not “in aid of our jurisdiction,” and thus not the proper province of an extraordinary writ. See Chapman v. United States, 75 M.J. 598, 600 (A.F. Ct. Crim. App. 2016) (citations omitted).

The underlying issue of subtle pressures to prefer has existed for many years in the Air Force, I remember litigating one in the early 2000s, to no avail. If the facts below be true, is that actual UCI rather than apparent? "Well, look, we know you don't want to prefer, but if you don't, the general ain't going to look upon you favorably in the future. Just sign here, and let's move on."

On 3 March 2023, Petitioner’s squadron commander, Lieutenant Colonel SK, preferred additional charges and specifications5 for violations of Articles 109 and 122, UCMJ, 10 U.S.C. §§ 909, 922. Petitioner alleges that his squadron commander was subject to apparent UCI in the form of alleged “pressure” exerted by the wing staff judge advocate who urged Petitioner’s commander to prefer these charges “while at the same time withholding relevant information.”

Army

United States v. Espinal. The Appellant was facing a child support issue in civilian court. To help lower any payments, he altered his LES to lower the amount of housing allowance received, which was then submitted to the court as part of his financial status package. He got caught, charged with and convicted of forgery, which ACCA has set aside for legal insufficiency. That left in place a larceny conviction, the confinement segment for that, and the bad conduct discharge.

Perhaps a case like this could be resolved by a PTA to withdraw the charges from court-martial and later dismissal without prejudice, along with a written waiver of any statute of limitations claim, if the accused (1) paid any difference between what he should have paid and did, and (2) continues to pay as required.

Its good to hold people accountable for being a jerk to their kid, but now the kid may have become more vicitimized based on any reduced ability to pay required child support.

Navy-Marine Corps

United States v. Redmond.

“[T]o trigger factual sufficiency review under the present Article 66(d)(1)(B), Congress requires two circumstances be present: (1) a request of the accused; and (2) a specific showing of a deficiency in proof.” To make a specific showing of a deficiency in proof, “an appellant must identify a weakness in the evidence admitted at trial to support an element (or more than one element) and explain why, on balance, the evidence (or lack thereof) admitted at trial contradicts a guilty finding.” Then, “this Court will weigh the evidence in a deferential manner to the result at trial. If we are clearly convinced that, when weighed, the evidence (including the testimony) does not support a conviction, we may set it aside.”

The court decided that the Appellant had done enough to make some specific showing of deficiencies; there was not enough to question the guilty finding.

United States v. Tyson is noteworthy because it is a case in which the court writes on two Grostefon issues but denies relief.