United States v. KeagoAppellant challenged fourteen potential panel members for actual and implied bias. The military judge granted six of Appellant’s challenges but denied the other eight. Before this Court, Appellant argues that the military judge erred in denying both his actual bias and implied bias challenges against three of the panel members. We first hold that the military judge did not abuse his discretion in denying Appellant’s challenges for actual bias. We also hold, however, that the voir dire responses of two of the members presented close cases of implied bias. Because the liberal grant mandate requires military judges to excuse potential panel members in close cases, the military judge erred by denying those two challenges. The takeaways:
1. The courts apply an objective test to an implied bias challenge. 2. If there is a "close call" on an implied bias challenge, the MJ is "enjoined" to remove the challenged member because they must err on the side of granting the challenge. United States v. Peters, 74 M.J. 31, 33 (C.A.A.F. 2015); United States v. Clay, 64 M.J. 274 (C.A.A.F. 2007). Judge Hardy also writes that the "liberal grant mandate prohibits the MJ from denying the challenge." In a footnote, he explains that some cases have suggested a more limited application of the liberal grant mandate, but those cases are of "little precedential value" after Clay and Peters. 3. A reminder that the liberal grant mandate is unavailable to TC, citing United States v. Clay; United States v. James, 61 M.J. 132, 139 (C.A.A.F. 2005). Judge Sparks concurs and dissents in part. "[T]he Court has applied a standard of review for implied bias challenges that has long been unhelpful and is itself in need of review." Judge Maggs dissents and writes "separately to note that implied bias cases are difficult because our precedents require military judges to decide them using vague and questionable standards." He goes on, "reconsideration of the test for implied bias, the liberal grant mandate, and the standard of review might benefit the military justice system. But until a party asks this Court to revisit our precedents—or until amendments to the Uniform Code of Military Justice or R.C.M. supersede them—we must simply do our best to apply their holdings." Note, the federal courts also will apply its version of implied bias. "Challenges for cause are generally based on actual bias, implied bias, or inferable bias." See United States v. Torres, 128 F.3d 38, 43 (2d Cir. 1997), cert. denied, 523 U.S. 1065 (1998); United States v. Greer, 285 F.3d 158, 171 (2d Cir. 2000). United States v. Velez, 48 M.J. 220 (C.A.A.F. 1998) cites to Torres, 128 F.3d at 45-47 ((distinguishing limited challenges of implied bias per se from more common but permissible challenges of inferred bias). See also, United States v. Napolitano, 53 M.J. 162, 167 (C.A.A.F. 2000) ("We have previously noted the trend in federal circuit courts to distinguish "implied" bias situations from "inferred" bias situations.").
1 Comment
United States v. McCulloughA military judge, sitting as a special court-martial, convicted appellant, in accordance with his pleas, of one specification of failing to go to his appointed place of duty, five specifications of willfully disobeying a superior commissioned officer, two specifications of disobeying a noncommissioned officer (NCO), one specification of disrespect toward a noncommissioned officer, and one specification of drunken physical control of a vehicle. He sentenced the appellant to a bad-conduct discharge and 99 days of confinement. Specified issueIn light of United States v. Scheurer, 62 M.J. 100, 110 (C.A.A.F. 2005), we also specified for briefing whether the military judge erred by accepting the appellant's plea of guilty to the drunken physical control of a vehicle. The specified issue also warrants discussion and relief. A cautionary note about stipulations that go with GPs. During the providence inquiry, the accused told the MJ he was sitting in the passenger seat drunk. Appellant argues the military judge erred in accepting the guilty plea because his providence inquiry was inconsistent with the stipulation of fact (more precisely, the part of that document that contained a stipulation of expected testimony from two NCOs) and because appellant admitted to facts that were legally insufficient to establish physical control. The government argues the providence inquiry and stipulation of fact are not inconsistent because appellant's assertion he was in the passenger seat and the NCOs' expected testimony that he was in the driver's seat can both be true, as he was in the vehicle multiple times. A cautionary note about stipulations: They may help get damaging information in front of the MJ without the need to call a witness, but they are not a substitute for the accused's admissions during the providence inquiry. A second cautionary note is that when the MJ excludes defense testimony, it may be necessary to make a proffer of expected testimony. If the military judge refuses to let you do that, it's on her. In that situation, put the proffer in writing and submit it to the convening authority citing Article 38(c), UCMJ. Assuming no EoJ, submit the proffer as a motion to attach as the next appellate exhibit to the record for appellate purposes. Military Rule of Evidence 103 states: "A party may claim error in a ruling to admit or exclude evidence only if the error materially prejudices a substantial right of the party and... if the ruling excludes evidence, a party informs the military judge of its substance by an offer of proof unless the substance was apparent from the context." (emphasis added). While we know the topic of the disputed testimony, we do not know its substance; and it is not otherwise apparent. See United States v. Eslinger, 70 M.J. 193 (C.A.A.F. 2010). In this case the BCD was disapproved. Despite the error - and even if we were to find it plain and obvious, but unpreserved - we conclude it did not prejudice appellant, for we are confident its exclusion did not substantially influence the adjudged sentence. The military judge sentenced appellant to a total of 99 days of total confinement, but each of the segmented sentences were below the plea agreement's maximum. Additionally, while the military judge sentenced appellant to a bad conduct discharge as required by the plea agreement, he wrote a detailed recommendation that the convening authority suspend that punishment. Judge Hayes dissented on the reassessment finding. In a footnote, Regardless of this conclusion, I commend the trial judge for taking the time to provide a recommendation to the convening authority, and particularly for providing supporting justifications. Michelle McCaskill, Soldier Recalled to Active Duty, Sentenced to Prison for Sexual Abuse of a Child. DVIDS News, 10 May 2024. (H/T GMJR) A retired Soldier, recalled to active duty, was sentenced by a military judge to 108 months of confinement for the sexual abuse of a minor. Since 1950, there have been over 30 retirees prosecuted at court-martial. Most have been living and working overseas. MEJA jurisdiction doesn't generally apply because the retiree is subject to court-martial. See 18 U.S. Code § 3261(d). 3261(d)(2) has an exception if there is a "the member committed the offense with one or more other defendants, at least one of whom is not subject to such chapter." (As GMJR points out, there may have been jurisdiction in the states where the offenses happened, assuming the statute of limitations had not run.)
Grants 7 May 2024Orders Granting Petition for Review No. 24-0096/AF. U.S. v. Jaquan Q. Greene-Watson. CCA 40293, petition is granted on the following issue: WHETHER THE AIR FORCE COURT ERRED IN AFFIRMING THE MILITARY JUDGE'S DECISION TO ADMIT EVIDENCE OF DOMESTIC VIOLENCE OCCURRING 17 MONTHS AFTER THE CHARGED OFFENSE TO SHOW A COMMON SCHEME OR PLAN UNDER MIL. R. EVID. 404(b)—USING A DIFFERENT RATIONALE THAN THE MILITARY JUDGE. (Note: read AFCCA for their application of United States v. Harrington, 83 M.J. 408 (C.A.A.F. 2023).) At the MJA trial, the government's rationale and the military judge's findings essentially are along the lines of After articulating the Reynolds test and applicable caselaw on the “common plan or scheme” theory, the military judge ruled that each piece of evidence listed above was admissible under that rubric. In his ruling, the military judge identified the putative common plan or scheme at issue, to wit, a common plan or scheme to “frustrate MGW’s ability or willingness to report these allegations by taking actual steps to prevent her from reporting to increase his control over her so as to deter her from making a report.” Apparently, consciousness of guilt was not raised at trial as a separate basis for admission. However, the rationale also extends to the use of post-misconduct evidence to prove prior intent, motive, or state of mind generally, as our superior court has reasoned: “Depending upon the circumstances involved in a particular case, subsequent conduct showing a subsequent state of mind may be relevant to show an earlier state of mind at issue.” United States v. Colon-Angueira, 16 M.J. 20, 25 (C.M.A. 1983) (citation omitted). CAAF has the opportunity to clarify (1) when a pattern of behavior intended to prevent or discourage reporting is admissible under Mil. R. Evid. 404(b), and (2) when can a CCA find an evidentiary basis for admission that was not raised, argued, or addressed by the parties at trial when affirming the conviction. Had the new basis been raised and argued at trial, the appellate courts would have a record and a military judge's ruling to apply the abuse of discretion standard. No. 24-0130/AF. U.S. v. Chase J. Stanford. CCA 40327, petition is granted on the following issues:
I. WHETHER THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES HAS JURISDICTION TO DIRECT MODIFICATION OF THE 18 U.S.C. § 922 PROHIBITION NOTED ON THE STAFF JUDGE ADVOCATE'S INDORSEMENT TO THE ENTRY OF JUDGMENT. II. WHETHER 18 U.S.C. § 922 CAN CONSTITUTIONALLY APPLY TO APPELLANT, WHO STANDS CONVICTED OF NONVIOLENT OFFENSES, WHERE THE GOVERNMENT CANNOT DEMONSTRATE THAT BARRING HIS POSSESSION OF FIREARMS IS "CONSISTENT WITH THE NATION'S HISTORICAL TRADITION OF FIREARM REGULATION" UNDER NEW YORK STATE RIFLE & PISTOL ASSOCIATION, INC. v. BRUEN, 597 U.S. 1, 24 (2022). United States v. CunninghamAppellant asserts one assignment of error (AOE), which he preserved for appellate review by entering conditional pleas of guilty: whether the military judge abused his discretion by admitting evidence obtained in violation of Miranda v. Arizona and Article 31(b), UCMJ. We find no prejudicial error and affirm. Some basic factsThe Appellant was identified as a distributor of CP using Kik, and a sting operation involving the North Carolina Internet Crimes Against Children [ICAC] Task Force—consisting of federal, state, and local law enforcement, including Homeland Security Investigations (HSI), North Carolina State Bureau of Investigations, and the Boone Police Department (PD)-- When the Appellant was identified as an active duty Marine living on base, NCIS became involved in various ways to give support. The intention of the investigators was for the U.S. Attorney to prosecute the case. Once the civilian agents got a search warrant, NCIS helped support the search and provided a standby polygrapher. HSI agents assembled off base around 0545 the day of the search to conduct an operations brief. NCIS agents were not present at the briefing as they were not intended to be involved in the actual execution of the search warrant. However, three NCIS agents provided surveillance on Appellant’s house from their vehicle to ensure he did not leave before the search. Civilian law enforcement interviewed the Appellant at the scene but no NCIS agent participated. The civilian agents interviewing the Appellant told him he wasn't under arrest. In the Jeep Cherokee, Appellant sat in the front passenger seat, Special Agent Baker sat in the driver seat, and Special Agent Peters sat in the back seat. The vehicle doors remained unlocked and Appellant was “not patted down, searched, frisked, or placed in any restraints at any time prior to the questioning by HSI agents, while in the vehicle or immediately following the interview.” NCIS agents did conduct part of the search "albeit unplanned, only after the HSI agents began their interview with Appellant in the Jeep Cherokee." NCIS's main involvement came when the Appellant consented to a polygraph. At this point, the Appellant was advised of his Article 31 rights, waived them, and gave damaging statements again.
The various reports labeled the operation as "joint" in several places which raised the specter of the need for Article 31 warnings before the Jeep interview. However, the military judge resolved that point against the Appellant. The "HSI report did not list NCIS as an agency that was part of the joint investigation.” United States v. AbdullahA GP SPCM. We have another case in which ACCA addresses the inadequate and perfunctory delay explanations for dilatory post-trial processing. Abdullah was a one-day case, and the transcript was 101 pages. The court notes it took 96 days, a little over a page a day. United States v. Johnson"The first assignment of error asserts the military judge erred in admitting three statements under the excited utterance exception to hearsay." The defense objected to two of the statements. ACCA found an error but no prejudice. The third statement was not objected to, was considered forfeited, and was examined under the plain error test. The court jumped the question of error and went straight to the prejudice analysis. Generally, ACCA found the two objected-to statements were indicative of "reflection and deliberation as opposed to being spontaneous, excited, or impulsive." ACCA points out that the MJ failed to "put his full analysis on the record and did not address the elements required under Arnold [25 MJ 129, 132 (CMA 1987)], nor did he provide analysis for the third element using the Donaldson factors, thereby affording him less deference by this court. United States v. Flesher, 73 MJ 303, 312 (CAAF 2014)." This failure was meaningful because "Although we acknowledge this is a close call, we afford the military judge little deference due to his failure to place his full analysis on the record." Cheers, Phil CaveUnited States v. Maebane, IIIA panel of officer and enlisted members at a general court-martial convicted Appellant, contrary to his pleas, of one specification of reckless endangerment and one specification of involuntary manslaughter, in violation of Articles 114 and 119, Uniform Code of Military Justice [UCMJ]. Of several issues, the most noteworthy is the MJ's refusal to admit a co-accused's "confession" proffered under Mil. R. Evid. 807, although the MJ allowed broad cross-examination. Cheers.(Disclaimer: no comments from us because we represented HM1 Davis.) Can it be a crime to masturbate with a (child?) sex doll alone in your room? The majority avoids this issue, but Judge Johnson spots the glaring constitutional problem and faces it head on. Why would CAAF want ACCA to first weigh in on a pure issue of constitutional law? This remand is a waste of everyone's time. The sooner CAAF can clean up the poorly-reasoned Marcum test, the better. And if they won't, maybe the Supreme Court will. No, not that one. This one was convicted of second-degree murder Monday in federal court in Pensacola, Florida. Wilkerson was charged under the Military Extraterritorial Jurisdiction Act[.] Howard Koplowitz, Military.com 8 May 2024 (revised).
The Military Extraterritorial Jurisdiction Act ("MEJA") was enacted on November 22, 2000 and is codified at 18 U.S.C. §§ 3261-67. MEJA permits the exercise of criminal jurisdiction over crimes committed outside the United States if at the time of the offense the offender was (1) employed by the Armed Forces outside the United States; (2) accompanying the Armed Forces outside the United States; or (3) a member of the Armed Forces. No prosecution may be commenced against a member of the Armed Forces, however, unless at the time of prosecution the member is no longer subject to the Uniform Code of Military Justice ("UCMJ") or the member is charged with committing the offense with one or more other defendants not subject to the UCMJ. Per the DoJ Justice Manual. |
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
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