Courts of Criminal Appeals

Air Force

In re Alton v. United States. ​The Courts of Criminal Appeals do not have jurisdiction over habeas petitions where direct appellate review is complete and the case is final under Article 76, UCMJ, 10 U.S.C. § 876. Direct appellate review ended and Petitioner’s court-martial result became final when the CAAF denied Petitioner’s petition for reconsideration of its denial of review of this court’s opinion. Accordingly, we lack jurisdiction to grant the requested habeas relief.​

On appeal, Petitioner challenged, inter alia, whether the court-martial lacked personal jurisdiction over him because he had been discharged from the Air Force. This court concluded, inter alia, Petitioner “was not effectively discharged from the Air Force for purposes of court-martial jurisdiction,” and we affirmed the findings and sentence. The United States Court of Appeals for the Armed Forces (CAAF) denied review of this court’s opinion, and subsequently denied Petitioner’s petition for reconsideration of the denial. On 4 October 2024, Petitioner filed the instant Petition for Relief in the Form of a Writ of Habeas Corpus. Petitioner now asserts the court-martial lacked personal jurisdiction over him on a theory he did not raise in his initial appeal: that 10 U.S.C. § 651 deprived the court-martial of jurisdiction because Petitioner had been serving in his “initial period” of enlistment for over eight years at the time of trial.
​
​On 24 October 2024, the Government filed a Motion for Leave to File a Motion to Dismiss. The Government contends that under Article 57(c)(1)(B)(ii), UCMJ, 10 U.S.C. § 857(c)(1)(B)(ii), and Article 76, UCMJ, 10 U.S.C. § 876, appellate review of Petitioner’s conviction was complete when the CAAF rejected Petitioner’s petition for reconsideration of denial of review. Therefore, the Government argues, in accordance with this court’s prior decisions in United States v. Sutton, 78 M.J. 537, 540 (A.F. Ct. Crim. App. 2018), and United States v. Chapman, 75 M.J. 598, 601 (A.F. Ct. Crim. App. 2016), this court does not have jurisdiction over Petitioner’s habeas corpus petition. 

United States v. Doroteo.

Appellant raises two assignments of error alleging prejudicial discovery violations, identified above as issues (4) and (12). Issue (4) addresses whether Specifications 4 and 5 of Charge I—the convictions related to KB—should be set aside based on a post-trial disclosure in March 2023 by one of the assistant trial counsel from an interview with KB in November 2021. Issue (12) addresses whether all of Appellant’s convictions should be set aside due to additional and much more extensive government post-trial disclosures in June 2024 which, Appellant asserts, prejudiced him with respect to every finding of guilty.
. . . 
​For the foregoing reasons, we conclude the cumulative effect of the undisclosed information in the possession of trial counsel described above was impeachment evidence favorable to the Defense and sufficient to “‘undermine[ ] confidence in the outcome of the trial,’” and therefore material to Appellant’s guilt or evidence constitutionally required to be disclosed. Behenna, 71 M.J. at 238 (omission in original) (quoting Smith, 565 U.S. at 75). Accordingly, Appellant is entitled to relief.

AFCCA also addressed the harmless v. harmless beyond reasonable doubt standard. The court assumed the harmless standard applied based on CAAF cases and found prejudice under the lower standard.

On an additional AOE for IAC, the court found that "Applying the three-prong analysis set forth in Gooch, we find Appellant did not receive effective assistance when trial defense counsel failed to move for production of AN’s April 2020 statement to security forces after AN testified pursuant to R.C.M. 914.

On an additional AOE for abuse of discretion in admitting a statement under Mil. R. Evid. 803(1) and Mil. R. Evid. 803(3). The Defense opposed the preadmission of PE 11. Here the military judge made two errors in his ruling, including that "the Defense bore the burden of persuasion with regard to the exclusion of PE 11, citing R.C.M. 905(c)(1). On appeal the the Government concedes that, in reality, the burden of persuasion lay with the Prosecution as the proponent of the excited utterance. See Henry, 81 M.J. at 96." The court found four reasons the PE failed the test for an excited utterance, including a significant lapse of time between the alleged assault and the PE (see United States v. Donaldson, 58 M.J. 477, 482 (C.A.A.F. 2003) and that the person was an adult.

The facts and analysis are useful in applying the test from United States v. Arnold, 25 M.J. 129, 132 (C.M.A. 1987) and United States v. Henry, 81 M.J. 91, 96 (C.A.A.F. 2021).

(1) A statement must be ‘spontaneous, excited or impulsive rather than the product of reflection and deliberation’;
(2) the event prompting the utterance must be ‘startling’; and
(3) the declarant must be ‘under the stress of excitement caused by the event.’”

Bottom line, findings and sentence set aside.

United States v. Giles.

Appellant raises four issues on appeal: (1) whether Appellant is entitled to relief for being involuntarily restricted to an inpatient mental health facility after his failed suicide attempt; (2) whether Appellant was unlawfully kept in pretrial confinement in violation of Rule for Courts-Martial (R.C.M.) 305 when the trigger for his misconduct—a desire to commit suicide via self-immolation—was no longer present; (3) whether the Government violated Appellant’s R.C.M. 707 right to speedy trial; and (4) whether the adjudged bad-conduct discharge is inappropriately severe. In addition, although not raised as an assignment of error, we consider whether Appellant is entitled to relief for unreasonable appellate delay.

​With respect to issue (2), Appellant concedes trial defense counsel waived the issue, and we agree; we have carefully considered Appellant’s argument that this court should grant relief notwithstanding his waiver, and we conclude it warrants neither discussion nor relief. See United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987). With respect to the remaining issues, we find no error that materially prejudiced Appellant’s rights, and we affirm the findings and sentence.

During appellate litigation, the government offered an affidavit regarding the R.C.M. 707 issue. The defense objected on the basis of Jessie. AFCCA agreed with the Appellant that the matters discussed are not part of the entire record. However, AFCCA disagreed that because there was no discussion of R.C.M. 707 in the record. However, comparing the charge sheet with the arraignment date there is more 120 unexplained delay, therefore, the Jessie objection is overcome. This suggests that a mere scintilla (or perhaps inference) of information may be sufficient to overcome a Jessie objection to post-trial declarations and documents.

Serjak. 

​On appeal, Appellant maintains he was the victim of sexual assault. Further, Appellant claims he was prosecuted as the offender due to the impermissible reason of his gender despite his allegations that JM was the aggressor. We find the trial judge did not abuse his discretion.
. . .
At trial and on appeal, Appellant advocates the dismissal of his charges from the first preferral did not stop his speedy trial clock under R.C.M. 707 because the Government’s re-preferral of charges was solely in response to evidence of unlawful command influence and amounted to “subterfuge” or an “improper reason.” See United States v. Hendrix, 77 M.J. 454, 456–57 (C.A.A.F. 2018) (citation omitted). As a result, Appellant requests we set aside his convictions and sentence. We decline to do so on this basis.
. . .
On appeal, Appellant argues his convictions are legally and factually insufficient, and accordingly, that we should set aside Appellant’s convictions and sentence. Specific to factual sufficiency, Appellant avers the Government’s case was deficient in that they “failed to prove”: (1) he unlawfully restrained the ​wrists of BH; (2) he touched HC’s buttocks with an intent to gratify his sexual desire, or that it was without her consent; (3) he penetrated JM without her consent; or (4) he told SMSgt JB he was “sexually assaulted.” We disagree with contentions (1), (2), and (4). We agree with contention (3).

United States v. Moore.

Does the inclusion of a term that a military judge shall adjudge a bad conduct discharge turn the sentencing hearing into an "empty ritual" and against public policy. The panel says no.

Different panels of this court have squarely addressed whether a mandatory discharge provision in a plea agreement violates public policy. See United States v. Conway, No. ACM 40372 (f rev), 2024 CCA LEXIS 290, at *7–11 (A.F. Ct. Crim. App. 19 Jul. 2024) (unpub. op.); United States v. Reedy, No. ACM 40358, 2024 CCA LEXIS 40, at *13–14 (A.F. Ct. Crim. App. 2 Feb. 2024) (unpub. op.); Kroetz, unpub. op. at *8–9; United States v. Walker, No. ACM S32737, 2023 CCA LEXIS 355, at *2–3 (A.F. Ct. Crim. App. 21 Aug. 2023) (unpub. op.); United States v. Geier, No. ACM S32679 (f rev), 2022 CCA LEXIS 468, at *13 (A.F. Ct. Crim. App. 2 Aug. 2022) (unpub. op.), rev. denied, 83 M.J. 86 (C.A.A.F. 2022). We find these decisions instructive in this case.
. . . as previously explained by various panels of this court, such provisions are now allowable and do not violate public policy. See, e.g., Conway, unpub. op. at *10; Kroetz, unpub. op. at *5–6; see also Article 53a(a)(1)(B); R.C.M. 705(b)(2)(E), (d)(1)(D); United States v. Rivero, 82 M.J. 629, 633–34 (N.M. Ct. Crim. App. 2022) (finding that the requirement of a specific sentence in the plea agreement that included adjudgment of a dishonorable discharge did not render the sentencing proceedings an “empty ritual”).

Army

United States v. Myers.

A sad case, not a pleasant read involving a search without warrant of a home under an emergency aid argument. Appellant's neighbor had called 911 to report a child left alone at home. The MPs and an investigator responded. They (and the court) assessed the 911 caller's concern as valid.

After receiving the initial 911 call, talking with the MPs on scene, and then calling and speaking with SFC Detective PT circled appellant's home, banging on doors and walls to elicit a response from within. After a few minutes, Detective saw a male toddler, approximately two years of age, in the rear upstairs window of the home. As it was now dark outside, Detective used his flashlight to see more clearly. The boy was completely naked and dirty and the window appeared smeared with feces or dirt.

With the appearance of an apparently unattended young child, Detective became very concerned and decided to call emergency services to gain entry into appellant's home. Detective testified he was concerned about the whereabouts and well-being of the other two young children, as the presence of the young boy further corroborated the 911 caller's allegations. About this time, however, appellant pulled into his driveway.

Detectives advised appellant it was against_puost regulation to leave young children unattended in the home and that Detective wanted to immediately enter the home to aid the children and ensure their well-being. In response, appellant unlocked his front door and entered the home. Detective and MP Sergeant (SGT) followed appellant from behind.

Appellant immediately led Detective up the stairs to the second level of the home and unlocked the door to the room of his son, The doorknob to E's room was inverted, as it had been when Ebabysat in early May 2022, so the locking mechanism faced away from the room's interior and was unreachable by Once appellant unlocked the door, emerged from the room naked and covered in feces. Detective Sdescribed M's room:

completely trashed with more feces, dirt; again, no sheets and a
blanket. The furniture was turned around backwards upLainst the
windows. All the toys in the room were -- it appeared [M] may have
smeared feces all on the toys, on the bed, on the walls, empty wrappers
of granola bars and some other food products all over the place."

Next, led Detective and SGTEto the room of his young daughters, and , which was urther down the upstairs hallway. This hallway contained more feces.

"Detectives advised appellant it was against_puost regulation to leave young children unattended in the home and that Detective wanted to immediately enter the home to aid the children and ensure their well-being. In response, appellant unlocked his front door and entered the home. Detective and MP Sergeant (SGT) followed appellant from behind."

Perhaps because the absence of a "may I come in to check the children" with a "yes you can," is why there's no discussion of this (and other actions of the Appellant at the scene) being consent to enter and check on the children? If the entry at that point was consensual, discussion of an emergency entry seems unnecessary.

The findings and sentence of 270 days, RiR, and a BCD were affirmed.

Judge Penland, concurring in part and in the result, briefly addresses United States v. Harvey, M.J. (C.A.A.F. 6 Sep. 2024).

Coast Guard

United States v. Eubanks.

Yes, members of the Commissioned Corps of the U.S. Public Health Service can face court-martial. The Coast Guard has quite a few serving on "active duty," (And a few with the Army.) primarily providing medical services and support. Jurisdiction is always a first question to be asked in these cases because of how their orders are written, etc., etc., etc. Once court-martial jurisdiction attaches, they can be held for court-martial beyond any end date on their orders to service with the armed forces. (And yes, the CO's and some crewmembers of NOAA ships are subject to the UCMJ, another oddity.) Beside the jurisdictional issue, the court addressed,

Ms. C.G., a named victim in one of the specifications to which Appellant pleaded guilty, stated to investigators that in a previous meeting with the assistant trial counsel (ATC), she had told the ATC she wanted Appellant “to get help.” She said the ATC “was like, well, I’m going to tell you right now, that he doesn’t want it. And that made up my mind to—like she asked if I would come out there if they needed me. Then, yeah . . . . especially if he doesn’t want help.” After Ms. C.G. met with the ATC, Appellant submitted a plea offer to the Government indicating he had begun to receive counseling and treatment. Based on this, Appellant asserts the ATC’s statement that Appellant did not want help was false, induced Ms. C.G. to participate in the court-martial, and constituted unlawful command influence. We disagree. 

The facts indicate the ATC's statement was made before knowing that the Appellant was already receiving help.

The court elided the alternate apparent UCI issue by finding that "the Appellant fails, as noted above, to make a predicate showing of facts that, if true, constitute unlawful influence. Under these circumstances, we need go no further."

Navy-Marine Corps

United States v. Roariomartinez, __ M.J. ___ (N.M. Ct. Crim. App. 2024). ​This is an important case about Mil. R. Evid. 509 and 606.

Military Rule of Evidence 509 states, “[e]xcept as provided in Mil. R. Evid. 606, the deliberations of … courts-martial … are privileged to the extent that such matters are privileged in trial of criminal cases in the United States district courts…” Mil. R. Evid. 606 prohibits a member from testifying “about any statement made or incident that occurred during the deliberations of that court-martial.” The rule recognizes three exceptions: (1) whether extraneous prejudicial information was improperly brought to the members attention; (2) whether unlawful command influence or other outside influence was improperly brought to bear on any member; and (3) whether a mistake was made in entering the findings or sentence. “In general, inquiries into jury verdicts and deliberations are looked upon with strong disfavor.” The Manual for Courts-Martial (MCM) implements this general restriction on questioning members about their deliberations. In other cases we have found that members cannot be questioned about their deliberations and voting except as provided in Mil. R. Evid. 606. The MCM “prohibits questioning court members about their deliberations and voting except as provided in Mil. R. Evid. 606. R.C.M. 923 permits the impeachment of findings which are proper on their face only when an exception contained in Mil. R. Evid. 606 exists.”

UI is within one of the very narrow exceptions to the rules. See, e.g., ​United States v. Schloff, No. ARMY 20150724, 2018 CCA LEXIS 350 (Army Ct. Crim. App. Feb. 5, 2018) (unpublished).

In reaching our decision on the whether the declarations here show “some evidence” of UCI, we find no reason to depart from our decision in Longshore, that a generalized statement by a member regarding a “duty to send a message that sexual assault is not tolerated in the Navy” is insufficient to meet an appellant’s initial burden under Biagase. We find the circumstances of Appellant’s case to be more akin to that of Longshore and Washington than the circumstances involved in Dugan and Schloff. 
. . .
The central issue for this case, however, is whether the members’ statements regarding the discussion of various alleged Marine Corps and “SAPR” policies fall within an exception contained in Mil. R. Evid. 606(b).

The infamous "one drink" "policy" came up during voir dire, and apparently during deliberations. However, NMCCA finds that while there may have been such a discussion, 

What this case therefore lacks is any evidence that someone attempted to use policy considerations to influence the deliberations of the members. The members’ passing reference to discussion of Marine Corps policy during deliberation, without more, does not rise to the level of 2ndLt Green’s letter in Dugan, nor does it even rise to the level of concern the Army court had in Schloff.

And, unlike ACCA in Schloff, NMCCA did not order a Dubay hearing to see if in fact there was more--and it substantiated the issue. In Dugan, CAAF specified the failure to order a post trial hearing--and they remanded the case for a Dubay hearing. 58 M.J. at 254. NMCCA did not order a Dubay hearing in Longshore and distinguished Dugan, and CAAF denied a petition. (As we know, denial of a petition is not a decision on the merits. 

NMCCA references Washington where CAAF held that the mere mention of SHARP training is not UCI. In Washington, the issue wasn't SHARP training in the deliberation room per se, rather whether admission of a witnesses testimony about SHARP training was prejudicial error. CAAF assumed error in the testimony, but found it not to raise inferences of UCI and accordingly not sufficiently prejudicial to reverse the findings. With that in mind, reliance on Washington seems inapt when talking about the significant policy and leadership, Congressional, media interest, and pressures in sex offense cases. These type of cases ought to be thought of as an exception to the principle that members are presumed to follow instructions. Anecdotally, the "one drink" policy still crops up from time to time. I still remember a Marine staff sergeant who told the judge that he couldn't follow the instructions on the law because they contradicted what his CO had told him. So, despite the official policies, someone seems to be still propagating the idea.

United States v. Chisolm. 

Appellant asserts two related assignments of error which we summarize as follows: (1) Prosecutorial misconduct by trial counsel for threatening to seek sanctions if the Defense filed a certain motion; and (2) unlawful command influence (UCI) by trial counsel for the same threat. We find no prejudicial error and affirm.

During the course of [a pretrial agreement] conversation, Capt Oscar “raised his voice and expressed frustration over scheduling conflicts that resulted in the hearing being scheduled on a Saturday.” Capt Oscar allegedly stated that he “intended to request that the military judge hold everyone at defense counsel’s table in contempt of court for filing a frivolous motion if defense counsel files an Article 13 motion.” This statement forms the basis for both of Appellant’s AOEs. 

These statements (assuming the truth) are characterized as "ill advised, [but] did not amount to prosecutorial misconduct." The court found that this sort of interaction with opposing counsel is not a violation of the Navy-Marine Corps RPR.

The words, if accurate, may not have prejudiced the Appellant, but have they prejudiced the system? See Rule 8.4,a.(4).

• An unnecessary severance of military defense counsel.
• Unnecessary litigation at trial, which would alert trial level participants that the issue is likely to get some appellate time.
• Potentially created a public perception that prosecutors can (conditionally) threaten defense counsel, so should they trust their military defense counsel.
• "Personal colloquies between counsel which cause delay and promote unseemly wrangling should be avoided." Canon 17 (Ill Feelings and Personalities Between Advocates), ABA Canons of Professional Ethics.

United States v. Cortez.

Appellant asserts two assignments of error (AOEs), which we summarize as follows: (1) the military judge abused his discretion when he found 1stLt Echo a “crime victim” of the offenses and erred when he considered the entirety of the victim’s impact statement to include impacts from allegations of uncharged misconduct, and . . . 

1stLt Echo reported to her Acting Commanding Officer, that she and Appellant had engaged in an intimate relationship over the past several months. She further reported feeling like she was in an unsafe working environment and was receiving threats from Appellant. After receiving this information, Maj Bravo issued Military Protective Orders (MPOs) to both. 1stLt Echo was ordered not to have any contact with Appellant and his daughter. And, likewise, Appellant was ordered not to have contact with 1stLt Echo or her daughter.

Essentially, the Appellant disobeyed the MPO several times, by visiting the protectee and posting to on social media. As to the visit, when police arrived "The officer observed “[Appellant] on top of [1stLt Echo] on a couch. He was straddling her and holding her arms down with his hands. And he ordered him to get off.”

Is she a "crime victim?"

The defense argued that the protectee was "a willing partner in the MPO violations." The military judge found she was a crime victim, thus her participation through victim impact statements was permissible, even though is contained reference so some uncharged events.

NMCCA reminds us that a VIS is not evidence or testimony subject to various rules of evidence. Here it was attached as an appellate exhibit and the military judge said "“for the record, I will give the entirety of the statement the weight that it indeed deserves and will note that this change alleviates the Court’s concern that it is seeking to offer any recommendation with respect to a specific punishment [to] be imposed.”" NMCCA went on to say that,

​Although “directly relating to or arising from the same offense” is not defined in R.C.M. 1001(c), we have previously looked to how the President defined admissible “evidence in aggravation” in R.C.M. 1001(b). Within this context, uncharged misconduct may be offered in aggravation if it “is directly related to or resulting from the offenses of which the accused has been found guilty.” This type of evidence is admissible when it demonstrates “a continuous course of conduct involving the same or similar crimes, the same victims, and a similar situs within the military community, [e.g.], the servicemember’s home.” Such evidence demonstrates “the true impact of the charged offenses on the [victims].”
. . .
Furthermore, judges are “presumed to know the law and apply it correctly.” Absent clear evidence to the contrary, we will assume the military judge did not sentence Appellant for any improper basis.