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