Navy-Marine Corps Court of Criminal Appeals

United States v. Hays

This case is one of those rare ones where the Court is reviewing a vacation of a suspended sentence for misconduct after the trial was over.

Summary
In United States v. Hays, NMCCA No. 202300275, the Navy-Marine Corps Court of Criminal Appeals affirmed that the appellant suffered no due process violations during his R.C.M. 1108 vacation hearing under Article 72, UCMJ. The court’s reasoning unfolds in three parts:

1. Standard of Review
   
   • Article 72, UCMJ, 10 U.S.C. § 872, mandates a hearing before vacating any suspended general court-martial sentence, conducted under R.C.M. 1108.
     
   • The court reviews compliance with R.C.M. 1108 de novo as a question of law, because proper post-trial processing is integral to due process and necessary to complete the appellate record. ;
     
2. Appellant’s Arguments and Court’s Responses
   a. Use of Out-of-Court Statements
   
   • Appellant argued the VHO erred by admitting affidavits and recordings without first inquiring into witness “availability.”
     
   • The CCA held R.C.M. 1108(d)(3)(E) requires only that alternative evidence be “reliable,” not that the VHO make an availability finding. Admission of reliable hearsay in revocation-type proceedings does not offend due process. ;
     
   • Although the VHO did not expressly label the statements “reliable,” the record showed they bore sufficient indicia of reliability: detail, lack of adversarial relationship, and corroboration by photographs and logs.
     
   b. Use of Restraints
   
   • Appellant contended that remaining in handcuffs throughout the hearing violated due process by creating prejudice.
     
   • Under Morrissey v. Brewer, 408 U.S. 471 (1972), revocation hearings need not afford the full panoply of criminal‐trial rights. Courts have upheld use of restraints for security without constitutional concern so long as no jury sees them. ;
     
   • The VHO expressly disclaimed any adverse inference from the restraints, and nothing in the record suggested they affected the outcome.
     
   c. Adequacy of the Hearing Report
   
   • R.C.M. 1108(d)(4) requires the VHO’s written report to recite the recommendation, supporting evidence, and rationale.
     
   • Appellant argued the report lacked an evaluation of contested facts, citing United States v. Miley. The CCA distinguished Miley (where the VHO rested on equitable grounds) and instead applied its own precedents (Suttle; Burchett) that require reviewing the report in context of the entire record.
     
   • Because no critical factual disputes existed and the report included all exhibits, the court found the report sufficient for meaningful appellate review.
     

Analysis

1. De Novo Review and the Importance of Process
   The court’s invocation of Moreno’s due-process framework underscores that post-trial proceedings—even those of a non-criminal nature—bear constitutional weight. By treating R.C.M. 1108 compliance as a legal question, the NMCCA ensures uniform application of fundamental fairness standards.
   
2. “Reliability” over “Availability”
   Adopting a “reliability” standard rather than a rigid availability inquiry aligns with modern supervisory-release jurisprudence and reflects a pragmatic approach to hearsay in revocation-type hearings. Federal circuits have similarly allowed reliable hearsay so long as it presents “some indicia of trustworthiness.” This flexible standard permits courts-martial to proceed efficiently without unduly foreclosing the use of affidavits when live testimony is impracticable.
   
3. Security Measures and Due Process
   The restraint issue illustrates the tension between courtroom security and the probationer’s dignity. By paralleling decisions like Briggs (42 M.J. 367 (C.A.A.F. 1995)) and Focia (856 F. App’x 830 (11th Cir. 2021)), the NMCCA reaffirms that security restraints, absent demonstrable prejudice or jury observation, do not breach due process. Practitioners should, however, seek explicit assurances from the VHO that such measures will not color the fact-finder’s view.
   
4. Report Sufficiency and Record-Based Review
   The court’s reliance on Suttle and Burchett to contextualize the VHO’s report highlights a key appellate-practice point: courts will examine the full record, not isolate the report’s prose. Consequently, advocates should ensure hearing exhibits and enclosures comprehensively document contested issues, especially when the written report omits detailed factual analyses.
   
5. Best Practices for Counsel
   
   • Object Early and Specifically: When hearsay is offered, defense counsel should move for a reliability finding on the record, ideally eliciting the VHO’s rationale.
     
   • Address Restraints Proactively: If security measures are imposed, counsel can request a brief on-the-record statement from the VHO disavowing their impact on the decision.
     
   • Expand the Hearing Record: When critical facts are in dispute, counsel should submit proposed findings or a narrative summary as part of the exhibits to buttress the written report.
     

Conclusion
The NMCCA’s decision in Hays affirms that vacation hearings under R.C.M. 1108 must satisfy core due-process safeguards—but need not replicate all formalities of criminal trials. By applying a “reliability” test for hearsay, tolerating reasonable security measures, and conducting a record-focused review of the VHO’s report, the court strikes a pragmatic balance between procedural rigor and operational efficiency. For practitioners, the case underscores the importance of preserving objections, documenting exhibits thoroughly, and ensuring the hearing officer’s rationale is clearly articulated on the record.

United States v. Ixcolgonzalez

This case is a decision on a government appeal of a military judge's suppression of evidence seized during a command authorized search. Judge Gannon dissented. The Court reviewed four discrete Fourth Amendment–based challenges to a Command-Authorized Search and Seizure (CASS) of the accused’s digital devices.

I. Facial Invalidity for Lack of ParticularitySummary:

• Fourth Amendment standard. A warrant must “particularly describe the places to be searched, and the things to be seized,” and that requirement cannot be satisfied by burying detail in supporting affidavits alone. Massachusetts v. Sheppard, 468 U.S. 981, 988 n.5 (1984); Stefonek, 179 F.3d 1030, 1033 (7th Cir. 1999).
• CASS language. The form authorized a search of all “digital devices belonging to LCpl Ixcolgonzalez” at specified locations and seizure of “evidence of violations of Article 134 … of the UCMJ.” It offered no lists of file names, folders, applications, or categories of data.
• Judicial conclusion. Because “digital devices” can encompass everything from smartphones and laptops to smart-watches, gaming consoles, even networked appliances, the CASS “void[ed] of any particularity” as to both places to search and items to seize. App. Ex. XVI, at 6–7. The military judge thus correctly ruled it facially invalid, and this Court affirmed that no deference was due to a warrant so broad.

II. No Incorporation of Affidavit by ReferenceSummary:

• Incorporation doctrine. Where a warrant lacks facial particularity, it may still comply with the Fourth Amendment if it “deliberately and unequivocally” incorporates an affidavit detailing places or items. Groh v. Ramirez, 540 U.S. 551, 557–58 (2004); Waker, 534 F.3d 168, 172 n.2 (2d Cir. 2008).
• CASS language. The CASS merely recited that “affidavit(s) having been made before me” and “grounds … exist as stated in the supporting affidavit(s).” It lacked any clause such as “incorporated herein by reference,” and the affidavit did not travel with the form.
• Judicial conclusion. Citing Groh and decisions in the Eighth and D.C. Circuits (Strand, 761 F.2d 449 (8th Cir. 1985); Maxwell, 920 F.2d 1028 (D.C. Cir. 1990)), the Court held that mere boilerplate references did not incorporate the affidavit’s specificity.

III. Good-Faith Exception Properly RejectedSummary:

• Leon framework. The exclusionary “good-faith” exception applies unless the warrant is so “facially deficient” that officers “cannot reasonably presume it to be valid.” United States v. Leon, 468 U.S. 897, 923 (1984).
• Military analogue. Mil. R. Evid. 311(c)(3)(C) codifies that unlawfully obtained evidence may be admitted if officials “reasonably and with good faith relied on the issuance of the authorization.”
• Judicial conclusion. Because the CASS plainly failed to particularize both place and items, no objectively reasonable officer could have presumed validity. The Court thus affirmed denial of good-faith relief.

IV. Exclusionary Rule and SuppressionSummary:

• Deterrence rationale. The exclusionary rule exists to deter deliberate or grossly negligent Fourth Amendment violations, not to “cure” past invasions of privacy. Leon, 468 U.S. at 906; Herring v. United States, 555 U.S. 135, 144 (2009).
• Military rule. Mil. R. Evid. 311(a) requires (1) a timely suppression motion; (2) a reasonable expectation of privacy; and (3) a finding that exclusion will appreciably deter future violations, with benefits outweighing systemic costs.
• Judicial conclusion. The military judge performed the balancing test conscientiously, recognized the seriousness of child-pornography allegations, and still found suppression appropriate because of the CASS’s facial and incorporated defects. The appellate court held his discretionary ruling “not clearly unreasonable.”

Commentary
​

1. Particularity in the Digital Age.
   Traditional particularity doctrines assume discrete, physical “places” (rooms, boxes). Yet modern digital forensics confronts devices that store terabytes of heterogeneous data hidden behind encryption, obfuscation, and complex file systems. In Riley v. California, 573 U.S. 373 (2014), the Supreme Court recognized that smartphones “hold for many Americans ‘the privacies of life.’” While Riley addressed warrant requirement rather than particularity per se, its logic underscores that digital searches demand heightened precision. Military practitioners should look to federal recommendations—e.g., the Department of Justice’s Model Digital Evidence Search Warrant—that require warrants to narrowly target account identifiers, date ranges, and specific file extensions.
2. Incorporation Best Practices.
   The Ixcolgonzalez decision reinforces that courts will not forgive facial overbreadth merely because an affidavit contains the requisite detail. To avoid suppression motions, convening authorities and NCIS agents should ensure that any supporting affidavit is (a) physically attached to the CASS form; (b) referenced by “incorporated herein by reference” language; and (c) initialed or paginated alongside the form. A periodic audit of boilerplate CASS templates—now 25 years old in some commands—would preempt systemic negligence.
3. Training and Oversight.
   The Court’s observation that this boilerplate form predates key advances in both technology and Fourth Amendment case law underscores a broader need. Judge advocates and NCIS counsel should receive annual instruction on evolving digital-search jurisprudence, including United States v. Richards, 76 M.J. 365 (C.A.A.F. 2017) on reasonableness metrics for electronic searches, and circuit-level refinements such as Riccardi, 405 F.3d 852 (10th Cir. 2005).
4. Policy Innovation: Graduated Particularity.
   One “outside-the-box” proposal is a graduated particularity framework: e.g., (1) first tier—search discrete categories (e.g., “WhatsApp message databases”); (2) second tier—search within specified date ranges; (3) third tier—search particular keywords or hash values. This would mirror the “taint team/filter team” doctrine used in FBI complex investigations, reducing both overreach and review burdens.
5. Comparative Military-Civilian Lessons.
   While federal courts sometimes permit delayed-notice warrants (Grubbs, 547 U.S. 90 (2006)), military rules afford no special latitude for surprise searches in base housing or barracks. The robust privacy interests of service members—who live and work in government-controlled spaces—arguably call for even stricter adherence to particularity norms.

ConclusionIxcolgonzalez stands as a cautionary tale: in an era of ubiquitous digital evidence, neither generic boilerplate nor hidden affidavits will sustain searches under the Fourth Amendment. Military counsel must ensure that CASS forms evolve in step with technology and that training and oversight mechanisms maintain rigorous particularity, clear incorporation, and respect for service members’ constitutional rights.