Court of Appeals for the Armed Forces

Wednesday, May 15, 2024
 
Certificate for Review Filed
 
No. 24-0156/AR. U.S. v. Ross E. Downum. CCA 20220575.
 
I. WHETHER THE ARMY COURT ERRED IN CONDUCTING ITS LEGAL SUFFICIENCY ANALYSIS WHEN IT HELD THAT UNITED STATES V. CAMPBELL, 50 M.J. 154, 160 (C.A.A.F. 1999) REQUIRES NOT ONLY EXPERT TESTIMONY INTERPRETING URINALYSIS RESULTS BUT THE ADMISSION OF THE UNDERLYING PAPER URINALYSIS RESULTS AS WELL.
 
II. WHETHER THE ARMY COURT ERRED WHEN IT HELD THAT UNOBJECTED TO EXPERT TESTIMONY INTERPRETING THE URINALYSIS RESULTS LACKED RELEVANCE WITHOUT THE ADMISSION OF THE PAPER URINALYSIS RESULTS.
 
III. WHETHER THE ARMY COURT FAILED TO CONDUCT A PROPER FACTUAL SUFFICIENCY ANALYSIS UNDER ARTICLE 66(d)(1)(B).
​
ACCA Filings.

This is the proverbial "paper" urinalysis case, but without the paper.

Writes Judge Penland and goes on to find legal insufficiency.

the government asked its expert, "[W]hat is GC-MS?" The expert answered, "Gas chromatography mass spectrometry....[i]t is the confirmation, the one that looks for the fingerprint of the drug." Beyond this metaphor the expert offered virtually no information about the test itself, whether it is regarded as scientifically sound, and whether it was conducted in accordance with prescribed procedures in this case.2 The expert did testify the metabolite from the sample exceeded the cutoff level and did not occur naturally in the body, but there was no explanation of the cutoff level's relevance, or any other evidence indicating test controls for the possibility of innocent ingestion.

The government's case also omitted the test results themselves. Instead, the prosecution asked only for the expert's "opinion based off of your review of the results." The expert responded, "It was positive for BZE at 295 nanograms per milliliter." We are unfamiliar with any authority supporting the government's contention that an expert opinion alone is sufficient to prove wrongful drug use.

Certificate for Review Filed
 
No. 24-0152/AR. United States, Appellant, v. Tayron D. Davis, Appellee. CCA 20220272.
 
I. WHETHER THE ARMY COURT ERRED IN FINDING THE REASSIGNMENT OF APPELLANT'S CASE RESULTED IN STRUCTURAL ERROR.
 
II. WHETHER THE ARMY COURT ERRED IN FINDING THE REASSIGNMENT OF APPELLANT'S CASE RESULTED IN PREJUDICE AND THUS DISMISSING THE CASE WITH PREJUDICE.

ACCA Filings.

Davis is collateral to United States v. Dial.

Judge Penland writes, "The interests of impartial justice prevail over concerns about docket delay. Where a supervisory judge details a non-impartial judge in order to obtain a particular result and avoid interlocutory appellate review, reasonable doubt emerges about the trial's fundamental fairness, and we grant relief."

In his affidavit, Judge Pritchard wrote that he anticipated he would continue to receive similar unanimous verdict motions from other accused soldiers appearing before him while Dial was stayed. While not certain, Judge Pritchard anticipated he would make similar decisions in future panel cases, including appellant's, depending on appellate review of his previous rulings. Judge Pritchard was concerned about prospective appellate stays in future cases and their effect on the circuit's docket.

Based on this concern, Judge Pritchard removed himself from future panel cases, at least until after interlocutory appellate review in Dial. As discussed in greater detail below, this "removal" was the functional equivalent of a recusal under Rule for Court Martial [R.C.M.] 902.

Judge Hynes had previously offered to preside in this case, and Judge Pritchard detailed him on 4 April 2022. According to Judge Pritchard; "Because Judge Hynes was in his first year on the bench, was eager to gain experience, and his docket had not been busy, he routinely offered to take cases from me." In his affidavit, Judge Hynes wrote:

At some point in March or April 2022 I asked to be detailed to U.S. v. Davis in Kaiserslautern. On 4 April 2022 I was formally detailed to the case. In an earlier discussion with the Chief Circuit Judge we talked about the U.S. v. Dial ruling and the potential for a case backlog in the 5th Circuit related to the automatic stay provision in R.C.M. 908(13)(4) while U.S. v. Dial was pending appeal. I asked to take U.S. v. Davis to do my part to mitigate any potential case backlog while U.S. v. Dial was pending appea1.

Judge Pritchard also told Judge Hynes that, depending on appellate review in Dial, among other things, he:

[M]ight or might not take the case back from him. This was not an indication to him that he should rule on any motion in any particular manner; rather, it reflected my trigger for presiding over non-bench trials again... .When my Clerk of Court informed me later that SPC Davis had elected a judge-alone trial, I did not take the case back.

On 11 April 2022, Judge Hynes announced he was the presiding judge.

Judge Penland takes from the nub of Roach,

In Roach, the Chief Circuit Judge of the Air Force Criminal Court of Appeals (CCA) commented on the case during two public events. 69 M.J. at 18-19. After appellant moved for recusal of the original panel hearing his case, the Chief Judge recused himself and then recommended his replacement to The Judge Advocate General of the Air Force (TJAG). After TJAG favorably acted upon this recommendation, the replacement judge authored the opinion.

The C.A.A.F. first held that although the Chief Judge's actions in recommending his replacement after he recused himself was an "error in recusal," under the circumstances of that case, to include the fact the influence from the Chief Judge's recommendation was minimal and there was no discernible prejudice to appellant, there was no structural error. Id. Nevertheless, after analyzing the error under Liljberg, the C.A.A.F. vacated the ruling of the lower court affirming appellant's conviction. Notwithstanding the lack of prejudice to appellant from the Chief Judge's conduct in taking action in the case after recusal, 
. . . 
Considering the facts of this case as detailed above are far more egregious, we readily conclude that the risk of undermining the public's confidence in the military judicial process warrants setting aside appellant's convictions and sentence.

ACCA seems a little unhappy with the Government.

We first emphasize what this case is not about. Try as the government might in its brief and at oral argument, it cannot reframe it as one where appellant is somehow continuing to futilely argue that he is entitled to a unanimous verdict. That is a red herring, for appellant has not raised that issue before this court.
. . . 
In most cases, alleged irregularities are limited to circumstances at the trial level; they do not continue on direct appeal. This naturally tends to have a moderating effect on any appropriate relief, and we frequently authorize rehearings in some form. In this case, irregularities persist. While not technically in defiance of our decision not to order a second affidavit from Judge H., government appellate counsel's decisions -- first, to obtain the affidavit anyway, and second, to offer it - have not benefitted their case. First, we are troubled by the ex parte exchange between the government and Judge H. that resulted in his second affidavit.