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It is a common issue for servicemembers when MCIO agents seize their smartphones, computers, and peripherals ("computer stuff") and keep them. How long may they keep the property? 1. Long enough to do a DFE and then return them? 2. Until the appropriate decision makers decide not to proceed with a court-martial? 3. Until the military judge gavels the trial over? 4. Until the appeal is over? 5. Forever? From experience, 1. After the trial is over, (1) the accused is asked if they want the item back after being reset to factory settings and wiped or give it up for destruction, (2) under federal law, in a CP case it gets destroyed, or (3) follow paraa. 2-8, AR195-5, Evidence Procedures, in an Army case, or (4) it's a hassle, and often doesn't happen. Property seized or held as evidence, other than contraband or other property which cannot legally be returned, will be returned to its rightful owner when it is determined that the property has no evidentiary value or when criminal proceedings have concluded and the time to initiate appeals has passed. . . . Coordination with the servicing SJA office must occur prior to disposition of evidence. At Prof. John Wesley Hall, Jr's. Fourthamendment.com we find, Natl. L. Rev.: The Reasonableness of Retaining Personal Property Post-Seizure and the Ascendancy of Text, History, and Tradition in Fourth Amendment Jurisprudence by Ty E. Howard [the case is posted here]: Prof. Hall's "blog" is an online supplement to his Search & Seizure (5th ed. 2013) and is a good resource.
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Thursday, September 12, 2024 No. 24-0189/AF. U.S. v. Logan A. McLeod. CCA 40374. [I]t is ordered that said petition is granted on the following issues: I. WHETHER THE COURT OF APPEALS FOR THE ARMED FORCES HAS STATUTORY AUTHORITY TO DECIDE WHETHER A CONVICTION IS FACTUALLY SUFFICIENT. II. WHETHER APPELLANT'S CONVICTION FOR ATTEMPTED MURDER OF "SARAH" AND ATTEMPTED CONSPIRACIES TO RAPE AND KIDNAP AB ARE FACTUALLY AND LEGALLY SUFFICIENT. III. WHETHER THE LOWER COURT ERRONEOUSLY INTERPRETED AND APPLIED THE AMENDED FACTUAL SUFFICIENCY STANDARD UNDER ARTICLE 66(d)(1)(B), UCMJ. No briefs will be filed under C.A.A.F. R. 25 Wednesday, September 11, 2024
No. 24-0147/AR. U.S. v. Ryan C. Thomas. CCA 20210662. [I]t is ordered that said petition is granted on the following issue: WHETHER THE MILITARY JUDGE ERRED BY DENYING APPELLANT'S BATSON CHALLENGE. No. 24-0175/AF. U.S. v. Daniel R. Csiti. CCA 40386. [I]t is ordered that said petition is granted on the following issues: I. WHETHER THE COURT OF APPEALS FOR THE ARMED FORCES HAS STATUTORY AUTHORITY TO DECIDE WHETHER A CONVICTION IS FACTUALLY SUFFICIENT. II. WHETHER APPELLANT'S CONVICTION FOR SEXUAL ASSAULT IS FACTUALLY AND LEGALLY INSUFFICIENT BECAUSE AH WAS CAPABLE OF CONSENTING – AND DID CONSENT – TO SEXUAL ACTIVITY WITH APPELLANT. III. WHETHER THE LOWER COURT ERRONEOUSLY INTERPRETED AND APPLIED THE AMENDED FACTUAL SUFFICIENCY STANDARD UNDER ARTICLE 66(d)(1)(B), UCMJ. Appellant will file a brief on or before October 11, 2024. Thursday, June 13, 2024 Order Granting Petition for Review No. 24-0122/AR. U.S. v. Matthew L. Coe. CCA 20220052. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue: WHETHER APPELLANT'S CONVICTION IS LEGALLY SUFFICIENT BASED ON THE LOWER COURT'S STATUTORY INTERPRETATION OF ARTICLE 120(b)(2)(A). No briefs will be filed under Rule 25. Remember Denedo? And Padilla upon which Denedo is based? A court of appeals for South Carolina issued an interesting decision where the appellant raised IAC for defective advice on the immigration consequences of an Alford plea to a third-degree [felony] to criminal sexual conduct with a minor. “Petitioner argues the PCR court erred in finding he suffered no prejudice from plea counsel's failure to advise him that entering the Alford plea would result in mandatory deportation and a permanent ban on reentry. We disagree.” Having found errror the court next addressed prejudice, and found none. Based on the record: (1) he would have taken the plea anyway to get a shorter sentence, (2) there was an interpreter present in court to clear up any language issues, (3) “no one forced him to plead, no one talked him into pleading, there was a substantial likelihood he would be convicted if he went to trial, and that he had plenty of time to talk with his lawyer. There were numerous instances when Petitioner was unclear during the plea hearing; however, each time the plea court permitted Petitioner to confer with counsel.” And during the plea hearing, none of the eight “interruptions” by the accused related to immigration questions. There was a dissent to the nonprejudice finding. The dissent focused much more on the language barrier and the accused’s confusion stemming from that. Fortunately, at court-martial there is less of a language barrier. But, that doesn’t mean that counsel should ensure the possibility that legal mumbo jumbo and technicalities are properly understood. Query: Applying this case to military practice, does that mean trial defense counsel has to do more research and analysis of the immigration status post-trial? And would a similar rule apply when giving Miller advise regarding SOR?
No. 24-0206/AF. U.S. v. Dennis A. George, Jr. CCA 40397. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issues: I. WHETHER APPELLANT'S CONVICTION FOR ATTEMPTED SEXUAL ASSAULT WAS LEGALLY INSUFFICIENT BECAUSE THE GOVERNMENT DID NOT PROVE THE ALLEGED OVERT ACT. II. WHETHER THE GOVERNMENT CAN PROVE THAT 18 U.S.C. § 922 IS CONSTITUTIONAL AS APPLIED TO APPELLANT WHEN HE WAS CONVICTED OF A NONVIOLENT OFFENSE. III. 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. Briefs are ordered only on Issue I. (See United States v. Williams, __ M.J. ___ (C.A.A.F. 2024)). AFCCA briefs are here (scroll down). The Appellant was convicted in August 2022 and AFCCA decided the case in June 2024. The court applied the new factual sufficiency review standard, and said that even under the old standard the findings would be affirmed. The court notes United States v. Harvey, 83 M.J. 685, 691 (N.M. Ct. Crim. App. 2023), rev. granted, ___ M.J.___, No. 23-0239, 2024 CAAF LEXIS 13 (C.A.A.F. 10 Jan. 2024). No. 24-0186/MC. U.S. v. Kyle A. Shelby. CCA 202200213. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862 (2018), it is ordered that said petition is granted on the following issue:
DID THE MILITARY JUDGE ERR WHEN HE DISMISSED CHARGE II WITH PREJUDICE AFTER "CONSIDERING THE INTERESTS OF JUSTICE, THE ACCUSED'S RIGHT TO A FAIR TRIAL, AND THE CUMULATIVE ERROR" OF THE GOVERNMENT? No additional briefs are permitted.
No. 24-0172/AR. U.S. v. Rodrigo L. Urieta. CCA 20220432. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue: WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY DENYING THE DEFENSE CHALLENGE FOR CAUSE AGAINST A MEMBER WHO BELIEVED A SOLDIER WHO HIRED A CIVILIAN DEFENSE COUNSEL DID NOT BELIEVE IN HIS DEFENSE. ACCA's decision is a 'straight line' affirmance. But the briefs are available through the link above. The issue was raised below. The Appellant wrote in part, The defense requested individual voir dire of XRAY, based in part because “he had some negative impression of civilian defense counsel.” (R. at 286). XRAY believed that “hiring an outside civilian lawyer means that you don't trust your defense very much.” The military judge denied a challenge for actual and implied bias and "did consider the liberal grant mandate[.]" We learn from the Appellee's brief that the member was a Sergeant First Class (E-7). From the Appellee's brief we get a little more context on the voir dire. When asked by the military judge to clarify what SFC meant by “you don’t trust your defense very much,” SFC replied that he meant both the defense counsel and the case the defense counsel planned to present. The line of questions was before rolling the dice and before peremptory challenges. The brief indicates XRAY was not the only member challenged--importantly. "The defense also challenged OSCAR for cause, and the military judge also denied that challenge. The defense used their sole preemptory challenge on [an assumption because names are redacted in the briefs] OSCAR." Thus preserving the issue as to XRAY. Another assumption is that XRAY sat as a member--would it make a difference if, after rolling the dice, XRAY was not one of the eight on the A-Team and didn't get promoted due to other challenges?
Would it have helped if the parties or military judge had asked XRAY to expand on his "experience" and what lead him to his conclusions--would that have made it easier for the appellate courts. Was his "experience" based on gossip or supervision of Soldiers facing court-martial who have complained to him about their MDC and the system, or ??? United States v. WheelerThe Fifth Amendment’s Due Process Clause guarantees the right to trial by jury for serious offenses. CAAF granted review to determine whether the Clause applied to military judge-alone special courts-martial convened pursuant to Article 16(c)(2)(A). Because the Court concluded Appellant failed to overcome the particular deference afforded Congress in balancing service member rights, it held the Clause does not apply and affirmed the decision below. Procedural History Appellant faced court-martial for sleeping on post. The convening authority referred the charge to the court-martial as mentioned above, which precluded Appellant from electing trial by panel members and likewise barred the military judge from adjudging a sentence including, inter alia, a punitive discharge or confinement for more than six months. Appellant moved to dismiss, arguing the convened court-martial lacked jurisdiction because sleeping on post was a “serious offense,” entitling him to a trial by panel members pursuant to the Fifth and Sixth Amendments. The military judge denied the motion and ultimately convicted Appellant, contrary to his pleas. The Judge Advocate General (TJAG) ultimately certified the question to the Navy-Marine Corps Court of Criminal Appeals (NMCCA) for review.[1] The NMCCA affirmed in an en banc published decision. CAAF subsequently granted two issues for review.[2] Appellant did not assert his previous Sixth Amendment argument. Summarized Analysis The Military Necessity Doctrine CAAF acknowledged that service members are entitled to Fifth Amendment Due Process protection. However, “[w]hether this process embodies a specific right—in this case, a right to be tried by a panel of members—depends upon an analysis of the interests of the individual and those of the regime to which he is subject.” It added that no violation occurs unless the challenged procedure “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” “Congress has primary responsibility for the delicate task of balancing the rights of servicemen against the needs of the military . . . subject to the requirements of the Due Process Clause. . . .” Accordingly, courts must give particular deference to Congressional determinations pursuant to its constitutional authority to regulate the land and naval forces. Thus, it is the Appellant’s burden to demonstrate the requested deviation of procedure is “so extraordinarily weighty as to overcome the balance struck by Congress.” This is a three-part balancing test:
Historical Practice CAAF agreed with the lower court that “the possibility of a criminal conviction at an unrefusable proceeding without members is remarkable,” such that this factor weighed “in favor of a due process right to a panel in this case.” For nearly 200 years, the military solely used panels for general courts-martial, as well as “lesser” courts-martial. Though, it noted there exists an equally long tradition of resolving minor offenses without a jury or a panel. In addition to more summary military discipline, the Sixth Amendment right to trial by jury does not extend to petty civilian offenses. Effect on the Military In contrast, allowing a service member to refuse a military judge-alone special court-martial unduly burdens the military and thus weighed against finding such a right for three reasons. First, such a court-martial is an efficient disposition in non-judicial punishment and summary courts-martial refusals, and in deployed environments when addressing minor misconduct. Second, CAAF analogized its rationale to SCOTUS in Middendorf, where it held that “similar considerations outweighed a servicemember’s claim to a Fifth Amendment due process right to counsel in a summary court-martial.” Though conceding that, in contrast to the court-martial at issue, a summary court-martial is not a criminal forum and does not result in a criminal conviction, “the burdens that would accompany the proposed process is equally applicable [here].” Third, allowing refusal here pulls more service members from their regular duties for longer periods to deal with minor offenses. In support, CAAF cited precedent long misapplied by courts and likewise critiqued by several authors: [I]t is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise. . . . To the extent that those responsible for performance of this primary function are diverted from it by the necessity of trying cases, the basic fighting purpose of armies is not served. Toth v. Quarles, 350 U.S. 11, 17 (1955). Legal Safeguards Finally, several existing safeguards ensure impartiality and fairness for four reasons. First, there is a qualified, independent military judge. This is due to the Article 138 complaint process, the Article 37 unlawful command influence process, and the All Writs Act. Second, service members are entitled to military defense counsel at no cost or, if reasonably available, to military defense counsel of one’s choosing. Third, Congress and the President have limited the jurisdiction of these courts. Fourth, though (at the time) not entitled to a direct appeal to the NMCCA, a process existed to do that (like in this case). As a result, this also weighed against finding a due process right. Because historical tradition is not dispositive, and Congress is entitled to particular deference, Appellant failed to meet his burden to overcome the balance struck by Congress and the President. Quick Summary of Issue II CAAF quickly disposed of the second issue. The Constitution grants Congress authority to govern the military. It did so and delegated some authority to the President to implement its authority. SCOTUS has approved of that practice.[3] And that practice is bolstered by the fact the military is a “specialized community. . . .” Since all the rules were followed, the lower court’s deferral was proper. Parting Thought I and others have raised questions about the rigor, historical development, and application of what is commonly referred to as the military necessity doctrine; however, Wheeler at least organizes a structure that can be replicated when asserting constitutional arguments. Practitioners at least know what the judges are looking for . . . at least right now. [1] Certified Question: Did the convening authority violate the Fifth and Sixth Amendments of the Constitution by referring charges for which the President authorized a penalty of over six months of confinement, forfeiture of all pay, and a punitive discharge to a judge-alone special court-martial under Article16(c)(2)(A), UCMJ[?] U.S. v. Wheeler, 83 M.J. 581, 583 (N-M. Ct. Crim. App. 2023 (en banc). [2] Issues Presented: I. Did the lower court err in holding that the Due Process Clause of the Fifth Amendment does not protect a servicemember’s fundamental right to a panel of members at court-martial? II. Did the lower court err by deferring to a convening authority’s case-by-case referral decision rather than an objective standard to determine whether an offense is serious? [3] It might be worth noting this may be an open question post-Raimondo if the basis for this principle was akin to Chevron-like deference. Rodrigo CaruçoReaders may remember that a certificate for review was filed in Downum. Wednesday, May 15, 2024 United States v. JonesIs post-incident browser history admissible in a sexual assault[1] of a child case as res gestae, on “some other theory, or as consciousness of guilt?” (The Appellant points out in the Reply that the government never offered the consciousness of guilt theory at trial and should be precluded from bringing it up now.) We don’t know. The court skipped answering the question, assumed an error in the admission, and tested for prejudice. On the way to concluding there was no prejudice, the court made it clear that the “three factors” in United States v. Kohlbeck, 78 M.J. 326 (C.A.A.F. 2019) are used to decide if the military judge abused her discretion. In a footnote, the court rejects the test in United States v. Perez-Tosta, 36 F.3d 1552, 1562 (11th Cir. 1994). Kohlbeck is the test for nonconstitutional evidentiary errors. Does this chronology from the opinion help decide admissibility? ? November 2020 is the date of the incident. Appellant’s neighbor, SD, walked into the room and saw Appellant kneeling on the bed with his pants down and AG lying on the bed in front of him. SD immediately went into the bathroom and vomited. Appellant “jumped up and pulled his pants up” and told AG he would be in trouble if anyone found out what had happened. SD confronted Appellant later that day to clarify what she had seen. 0400, 5 November, CID interrogates and gets admissions and his smartphone.
The DFE found internet searches “for “how many years for sexual assault,” “choking charge,” “Types of sexual assault,” and “what is sextual [sic] assault.”” May I suggest the searches are not, or shouldn’t be admissible: (1) The searches are clearly not res gestae; they were done after the event was complete and after the confrontation. (2) The searches are cumulative to his statements, which do express a consciousness of guilt that “he would be in trouble if anyone found out.” Mil. R. Evid. 403 ought to keep them out. (3) A wise prosecutor doesn’t want to introduce a potential error when the rest of the evidence—the “admission” when confronted, independent eyewitness testimony, and the admissions to CID. This is more than sufficient to support guilt BRD. Also, the available evidence doesn't suggest any action that could be construed as "choking." (4) An argument can be that the searches indicate doubt in his mind whether he did commit a sexual assault, so he’s checking to see what the ever-reliable Google says. Or does that counter the government’s argument that “He knew what he did was wrong[?]” That's the Mil. R. Evid. 403 objection. The Appellant's Reply brief makes this point. However, appellant’s internet searches are more indicative of an ignorant or naïve mind. Contrary to the government’s assertion, the evidence here is even less indicative of consciousness of guilt than in United States v. Tovarchavez, 78 M.J. 458 (C.A.A.F. 2019). In Tovarchavez, the appellant had sent apology texts, which were not considered evidence indicative of guilt. Here, appellant was simply inquiring about the allegations and trying to understand what he might be facing. There is no inference of guilt but rather a search for information after being accused. --------- [1] One specification of sexual assault of a child, two specifications of sexual abuse of a child, and one specification of aggravated assault. The 2023 season is almost over with yesterday's decisions in Wheeler and Strong. And now for something different. We thought we'd try to get some audience participation—that's you, dear readers. We would like your suggestions for the three most consequential decisions of the season. It would be even better if you gave a pithy explanation of why they are consequential. There is just over a month before the new season starts on 1 October when we can share any results. You can do this by emailing [email protected]. or pseudonym is OK. United States v. WheelerUnited States v. Strong |
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