Navy-Marine Corps Court of Criminal Appeals

United States v. Bunton. Enlisted members convicted Appellant of "sexual assault and abusive sexual contact, conspiracy to commit extortion [a different victim], F2go, and false official statement. Sentenced to two years, TF, RiR, and a DD. But, he will get a retrial on the sexual assault and abusive sexual contact and the sentence. The NMCCA identifies the following issues.

 (1) MJ error denying civilian defense counsel’s continuance requests.

     NMCCA finds waiver when the Appellant voluntarily released the CDC. He might of had a decent argument otherwise. There were two COVID related delays totaling three months. The TC objected to a CDC delay because of witness issues and the VLC objected to this first (two month) delay from either party. CDC offered as part of the justification, "two emails between the military judge and the parties. In those emails, the military judge criticized filings by the military defense counsel and suggested that they acted “negligently,” cautioned them that they were officers of the court and not to compromise [their] license to practice law,” and suggested that counsel were “either unaware of [R.C.M.] 707 or planting poison pills in the record.”"

(2) the taint of systematic exclusion of junior enlisted Marines as potential panel members was not alleviated when two Corporals junior in date of rank to accused were added to the list of potential members.

(3) Ramos v. Louisiana.

(4) & (5) MJ (and NMCCA) error in failing to release medical and Physical Evaluation Board records.

(6) MJ error denying the testimony of a forensic psychiatrist as a witness. This error gets Appellant a new trial on some charges and sentence.

(7) IAC by failing to try and suppress statements to NCIS. NMCCA finds appropriate reasons offered by DC for not raising the motion. They thought the value added of the statements outweighed any devaluation--the statements supported their theme and theory and the appellant would not need to testify.

(8) Conviction for false official statement--factual insufficiency? Yup, good enough.

* MJ error denying the testimony of a forensic psychiatrist as a witness. The MJ erred because,

While we take no issue with a finding that most adults in the United States have a general understanding that alcohol can impair one’s memory, we sharply disagree with the military judge’s additional finding of fact that it could be assumed the members who would sit in judgment of Appellant would, based on either their personal drinking experience or what they had seen in movies, on television, or on social media, have sufficient knowledge in a case such as this, where the complex phenomenon of an alcohol-induced blackout was it issue, to properly evaluate the ultimate issue. Indeed, the military judge’s finding of fact that the members would possess sufficient lay knowledge so as to render expert testimony unnecessary was made in the face of a directly contrary—and unrebutted—assertion by Dr. Sierra[.]
. . . 
In the face of this evidence that undermined the military judge’s finding of fact that members would have a sufficient basis of knowledge in this case to resolve issues concerning the effect of alcohol on memory (and particularly the concept of blackouts) based on personal experience or what they read in the news or watch for entertainment, there is no evidence in the record to support his finding of fact. We add our observation that even if a member generally has experience drinking alcohol, that by no means guarantees that he or she has experience with blackouts, either en bloc or fragmentary. For all of these reasons, we find the military judge’s finding of fact on this issue was clearly erroneous.

Moreover, we find that the military judge abused his discretion with regard to his conclusion of law that Dr. Juliet’s testimony was of “low probative value[.]
. . .
To us, it leaps off the page that there is a significant difference between a person not remembering an event because she was asleep and her not remembering the event because she was awake but not forming long-term memories because she was suffering from the effects of a blackout. In committing this logical error, the military judge disregarded the Defense’s clearly expressed theory that Ms. Foxtrot may have simply forgot being awake (or was unable to access such a memory) and consenting to the charged sexual activity due to a blackout. In doing so, he denied Appellant’s opportunity to fully develop and present that theory to the finder of fact at trial.

The error is not HBRD (Government argued a different standard).

• ​This was a witness request, not a consultant request.
• The evidence was not strong.
• "Dr. Juliet’s testimony about blackouts as well as his expert opinion that Ms. Foxtrot may have been experiencing a fragmentary blackout, was material[,]" and could have affected the findings.
• Whether the standard is HBRD or "the correct standard is for us to assess whether the error materially prejudiced Appellant’s substantial rights. Although we disagree that this is the correct test to assess for prejudice under the circumstances, even if we did apply this test the outcome would be the same."

Cheers.