United States v. Jordan Jones is a published decision where
Officer and enlisted members sitting as a general court-martial convicted Appellant, contrary to his pleas, of sexual assault in violation of Article 120, Uniform Code of Military Justice [UCMJ]. Appellant was also convicted, pursuant to his pleas, of desertion, absence without leave, escape from custody, false official statement, wrongful possession of a controlled substance, and wrongful appropriation in violation of Articles 85, 86, 87a, 107, 112a, and 121 UCMJ, respectively. Appellant asserts three assignments of error [AOE]: (1) the admission of his statement, “I’m going to tap that” implicated Appellant’s substantial right to be presumed innocent under the Due Process Clause of the Fifth Amendment, and but for that error, the outcome of the proceeding would have been different[.]
A first point to consider is whether to give, and what must be included in a notice under Mil. R. Evid. 404(b).
Prior to trial the Government provided notice under Mil. R. Evid. 404(b) that it intended to offer certain non-hearsay statements of Appellant. Among this evidence was a statement Appellant made earlier in the evening to Machinist’s Mate Third Class [MM3] Charlie (one of the other Sailors present at the hotel), in which Appellant stated that “he was going to have sex ‘regardless’ that night, or that he was ‘going to get some tonight,’ or words to that effect.”8 The Government made clear in its notice that it was not conceding that the statements were covered by 404(b) however, “out of an abundance of caution” it was providing notice.9 The Government’s notice did not specifically contain Appellant’s alleged statements including the words “tap that,” “hit that,” or words that conveyed the same meaning. Appellant subsequently filed a motion to exclude evidence listed in the Government’s motion; however, Appellant’s motion was limited to other unrelated evidence in the Government’s notice pertaining to an alleged violation of a protective order. The Government ultimately elected not to introduce that evidence. Appellant’s motion to exclude did not include Appellant’s alleged statements “he was going to have sex ‘regardless’ that night” or, that he was “going to get some tonight.”
After summarizing the law, the court goes to United States v. Brazell, No. ACM 39325, 2019 CCA LEXIS 34, *14-15 (A.F. Ct. Crim. App. Jan. 29, 2019) (unpub.) (Shepardized), for help.
"Appellant’s statements were admissible non-hearsay statements demonstrating his intent and desire to engage in a sexual act while at the hotel that evening.
There being no prejudicial error, no need to address the claim of IAC. And Brazell,
Petitioner filed for Writ of Habeas Corpus asserting that the court-martial lacked subject matter jurisdiction because the U.S. Japan Status of Forces Agreement ("SOFA") assigned the primary right to exercise jurisdiction over Petitioner's offenses to Japan, and Japan did not waive its primary jurisdiction. Respondent's Answer assert[ed] the U.S. military courts had proper concurrent jurisdiction in this case. Further, Respondent contends that "Petitioner has no standing to object to 'violations' of the SOFA." (the issue was raised at AFCCA.)
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