Interesting CCA cases

United States v. Viaud.
 
(1) whether the Government committed a violation of Article 13, UCMJ, when it failed to request civilian law enforcement personnel take down a mugshot of Appellant they had published online while holding him in pretrial confinement at the military’s request, and
 
(2) whether arbitrarily treating military pretrial confinees in civilian facilities differently from those in military brigs with respect to public-facing mugshots is a denial of equal protection in violation of the Due Process Clause of the Fifth Amendment.
 
Appellant claimed that he suffered pretrial punishment when the local sheriff posted his mugshot.

NMCCA summarizes its view of the current law on waiver and whether the mugshot is pretrial punishment for which confinement credit may be given.
 
[A]ppellate courts, when faced with question of whether an appellant has waived a constitutional right, apply a presumption against finding waiver. United States v. Blackburn, 80 M.J. 205, 209 (C.A.A.F. 2000) (citing United States v. Jones, 78 M.J. 37, 44 (C.A.A.F. 2018)). The CAAF recently explained in United States v. Suarez:
 
“A criminal defendant may knowingly and voluntarily waive many of the most fundamental protections afforded by the Constitution.” United States v. Mezzanatto, 513 U.S. 196, 201 (1995).However, “. . . ‘for a waiver to be effective it must be clearly established that there was an intentional relinquishment of a known right or privilege.’” 18 __ M.J. __, No. 25-0004/MC, 2025 CAAF LEXIS 651, at *13 (C.A.A.F. Aug. 5, 2025) (quoting United States v. Smith, 85 M.J. 283, 287 (C.A.A.F. 2024)).

Importantly, the CAAF has considered violations of Article 13 for the first time on appeal absent affirmative waiver of unlawful pretrial punishment at trial. United States v. Fricke, 53 M.J. 149, 154 (C.A.A.F. 2000) (citing United States v. Huffman, 40 M.J. 225, 227 (C.M.A. 1994))."
 
(Ed. note. (Former LCDR) Fricke was a memorable client of Code 45. He was murdered while at the USDB.
 
Cases of civilian pretrial confinement conditions arise from time to time where the local Sheriff is contracted to hold servicemembers in pretrial confinement on behalf of the military. When that happens, “Pretrial confinement in a civilian jail is subject to the same scrutiny as confinement in a detention facility operated by the military.” United States v. James, 28 M.J. 214, 215 (C.M.A. 1989)."
 
NMCCA held no Article 13 violation.
 
"The military judge concluded that the RRJ had a legitimate reason for the online mugshot based on the evidence.36 Like in James, the military judge decided there was no Article 13 violation, and the complained of condition was rationally related to reasonable operating procedures of the facility and not so “excessive” as to rise to the level of punishment."
 
Also, there was no equal protection violation when comparing the Appellant’s situation with that of those in pretrial confinement in a military confinement facility.

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United States v. Coleman, No. 202400173, 2025 CCA LEXIS 487, at *2 (N-M Ct. Crim. App. Oct. 30, 2025).

"I. Did the military judge abuse her discretion when she found that the testimony of Mr. Bravo was an adequate substitute for missing evidence in the form of videos that had been destroyed. AFCCA found error, dismissed Charge I, and set aside the sentence."

Appellant's convictions for abusive sexual contact and assault consummated by a battery stem from a night of liberty in Key West, Florida. Appellant and two friends went out drinking, ultimately visiting a strip club called "Teasers." Shortly after arriving at Teasers, Appellant agreed to pay one of the dancers, Ms. Sierra, $300 for a private dance in a private room. At some point during the private dance, Appellant touched Ms. Sierra's vulva over her underwear. Ms. Sierra immediately reacted by slapping Appellant in the face. Appellant responded by shoving Ms. Sierra with both hands, then shoving her again, pushing her onto a bench.

Teasers had an extensive surveillance system of closed-circuit cameras, including in the private dance rooms, and the entirety of Appellant's interactions with Ms. Sierra was recorded. Once Ms. Sierra left the private room after her altercation with Appellant, Mr. Bravo, the Teasers manager, called the local police, who came to Teasers and arrested Appellant. The police did not, however, secure the footage of what transpired between Appellant and Ms. Sierra. Instead, Mr. Bravo used the camera on his cell phone to film a 29-second clip of the altercation from the closed-circuit television and provided that to the police. At the start of the clip, Appellant is fully clothed and seated while Ms. Sierra, wearing only underwear, stands in front of him, facing away from him and seemingly rubbing her buttocks against his crotch. After approximately five seconds, Appellant reaches between Ms. Sierra's legs, at which point she turns around and slaps him in the face. By the time the Naval Criminal Investigative Service (NCIS) took over the investigation from the local police and attempted to retrieve the full video surveillance from the night in question, the footage had been overwritten.
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[T]he Government presented the testimony of Mr. Bravo, the arresting officer, and the NCIS agent who interviewed Appellant. The Government further presented the clip of the surveillance video that Mr. Bravo recorded on his cell phone and the audio recording of Appellant's NCIS interview, in which Appellant said that Ms. Sierra touched his genitals over his clothing before he responded by touching her. The Government did not call Ms. Sierra as a witness, honoring her preference not to testify.

2025 CCA LEXIS 487, at *2-4.

. . .
The military judge found that Appellant failed to demonstrate that the missing video would have shown Ms. Sierra touching his crotch before he touched her. The military judge found that the missing video would, however, have shown Ms. Sierra sitting on Appellant's lap. She determined that portion of the video was of such central importance that it was essential to a fair trial, as it "invites a defense for [Appellant] that he may have been mistaken in thinking that Ms. [Sierra] consented to [Appellant] touching her vulva." The military judge then determined that Mr. Bravo's testimony was an adequate substitute for the missing video evidence, as he had viewed the video and could testify to the contents.5 Mr. Bravo testified that prior to the incident, Ms. Sierra was sitting sideways on Appellant's lap, "like sitting on Santa's lap." He said that Ms. Sierra's arms were around Appellant's shoulder, and they were speaking to each other. He stated that he limited his cell phone recording to the 29-second clip of the surveillance video because "that's where the incident started." He further testified that he wasn't looking for anything else in the video, either before or after the 29-second incident.
Mr. Bravo described Teasers as a "full friction club" where dancers can touch customers, sit on customers' laps and rub their bodies on the customers, and customers can fondle dancers' breasts and buttocks. He also testified that he watched the surveillance video in order "to find the guy that [Ms. Sierra] was describing," and that he showed his cell phone recording of the surveillance video to the police so they could identify Appellant. By the time Mr. Bravo testified at trial more than 15 months after the night in question, he was unable to provide significant details about what he saw on the surveillance video, and his memory was clearly affected.

2025 CCA LEXIS 487, at *5-6. The facts for the Appellant get even better.

. . .
In order to determine whether Appellant had a reasonable mistaken belief that Ms. Sierra consented to his actions, it was essential for the members to get a full understanding of the entirety of Appellant's interactions with Ms. Sierra immediately prior to the charged abusive sexual contact. Ms. Sierra did not testify at the court-martial, and no one, including Mr. Bravo and all of the law enforcement officers investigating the case, ever viewed this critical evidence. The importance of this destroyed evidence was further demonstrated by the testimony of the defense investigator and Mr. West, who described the aggressive actions of the Teasers dancers towards customers outside of the private rooms, directly contradicting Mr. Bravo's testimony about dancers not touching customers' crotches. Therefore, even if Mr. Bravo's testimony was an adequate substitute for the destroyed video of the private room, under the specific facts of this case, his testimony was not an adequate substitute for the centrally important portions of the surveillance video that he never viewed.

2025 CCA LEXIS 487, at *14-15. NMCCA relies on an AFCCA case.

In Seton, AFCCA affirmed the decision of the military judge to dismiss a sexual assault charge due to law enforcement's failure to secure surveillance video of the appellee and the victim both before and after an alleged sexual assault. The government argued that a "dormitory leader" in the building where the alleged sexual assault occurred who viewed the video was an adequate substitute because he could testify to what he observed. AFCCA disagreed, finding that the military judge was correct in stating that:

The dynamics of a mutual interaction occurring almost immediately before and after a reported sexual assault cannot be adequately conveyed by a witness' summary description. The old adage, 'A picture is worth a thousand words,' comes to mind at this point. Simply put, [the dormitory leader's] testimony is not an adequate substitute for the video.
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AFCCA upheld the military judge's decision, specifically noting it was reasonable because more than a year had passed since the dormitory leader saw the video, he only viewed the video once and had fast-forwarded through large portions of the video, and he admitted he did not remember all the details. AFFCA said that "[t]he testimony of one person who is not a trained investigator, who was not necessarily looking for exculpatory evidence, and who did not remember many details of the video is simply not an adequate substitute for the video itself[,]" as there was "no way [his] testimony could adequately replicate for the factfinder the subtle nuances of the participants' behavior and reactions."

The charge is dismissed, and the case is remanded for a new sentencing hearing on the remaining cocaine use conviction.

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In Martinez, AFCCA grants "relief" for excessive post-trial delay.

August 2019--Appellant convicted and sentenced to six years--effectively >five< years if serves to MRD without additional good time credit.

May 2021--AFCCA remands record to resolve "ambiguous and incomplete" post trial matters. (Apparently only a month delay, but still a delay.)

May 2022, AFCCA finds error in findings instructions for attempt sexual assault, sets aside the related finding and authorizes a rehearing, affirms a second charge, and authorizes sentence rehearing.

October 2022, SJA Office asks ADC where her client is and whether he's still in confinement. (apparently the USAF Liaison, NAVCONBRIG Miramar wasn't able to tell them.) ADC says still confined, asks for immediate release, and demands speedy trial. (Note for DC. Ask for immediate release or PTC hearing IAW R.C.M. 305. If neither happens or a PTC hearing is held and continued PTC found appropriate, file a motion with MJ.)

"Appellant was released from Miramar on 17 November 2022, and was present at his rehearing which began at Fairchild AFB on 21 November 2022. At no time following the issuance of Martinez II was Appellant ordered into pre-trial confinement, nor were any pretrial confinement procedures required by R.C.M. 305 implemented." (Note for JSC. How about an amendment to R.C.M. 305 or 810 specific to cases where the CCA/CAAF sets aside findings or sentence? Maybe some wordsmithing of R.C.M. 305(d)/810? AFJAJM might want to wordsmith Chap. 26, AFI 51-201 to help SJAs out? NTJAG Code O-2, might want to consider adding a notice to the accused in para. 0170, JAGMAN, of an entitlement to a PTCH; and for the Army, something in para. 12-13, AR 27-10?)

November 2022, sentence only rehearing and sentenced to 46 months=37.5 months >effectively if served to his MRD<

MJ gives 121 credit for failure to conduct R.C.M. 305 procedures.
MJ gives 242 credit for illegal PTC.
MJ gives total 1055 days credit.
MJ gives 182 days credit against forfs because total term of confinement exceeded.

"We have also considered whether to grant “appropriate relief” for “excessive delay” pursuant to Article 66(d), UCMJ, 10 U.S.C. § 866(d)(2), independent of any due process violation. Having considered the post-trial processing of Appellant’s rehearing as a whole, and particularly the baffling delay between the court reporter’s certification of the record on 1 June 2023 and delivery of the record to Appellant on 18 September 2023, we find it appropriate to partially disapprove the adjudged reduction in grade."

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In Corliss, AFCCA deals with the less common, perhaps rare these days, the contingent confinement sentence. Appellant was sentenced to "Appellant to a bad-conduct discharge, a fine of $15,000.00, six months' confinement, reduction to the grade of E-1, and to serve an additional six months of confinement if the fine is not paid."

As best I can tell, Appellant was contesting the contingent fine as unlawful, but it appears the fine was paid timely.

However, the case is a reminder of contingent fines, which are rare these days.