Update: Biden administration asks court to block plea deal for alleged mastermind of 9/11 attacks. Courthouse News Service, 7 January 2025, citing AP. Your browser does not support viewing this document. Click here to download the document. If you have been following events at Guantanamo regarding the pretrial agreements, the Court of Military Commission Review has provided their answer. Your browser does not support viewing this document. Click here to download the document.
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Please save the date for a conference co-hosted by NIMJ and the Federal Sentencing Reporter.
Booker at 20 | Developments in Military Sentencing April 25, 2025, Villanova Law School (and Zoom) Booker at 20: Hon. Nancy Gertner, U.S. District Court for the District of Massachusetts (Ret.), Senior Lecturer, Harvard Law School Keynote: Hon. Stephanos Bibas, U.S. Court of Appeals for the Third Circuit Developments In Military Sentencing: CAPT Stephen Reyes, Chief Judge, Dept. of the Navy Lt. Max Goldberg, Defense Counsel, USMC Prof. Rachel Vanlandingham, President Emerita, NIMJ Prof. Frank Rosenblatt, President, NIMJ Articles from The Journal of Appellate Practice and ProcessMay It Please the Court–Or Not: Appellate Judges' Preferences and Pet Peeves About Oral Argument
Margaret D. McGaughey The Robed Tweeter: Two Judges' Views on Public Engagement Stephen Louis A. Dillard and Bridget Mary McCormack “Remarkable Influence”: The Unexpected Importance of Justice Scalia's Deceptively Unanimous and Contested Majority Opinions Linda L. Berger and Eric C. Nystrom Air ForceIn re Alton v. United States. The Courts of Criminal Appeals do not have jurisdiction over habeas petitions where direct appellate review is complete and the case is final under Article 76, UCMJ, 10 U.S.C. § 876. Direct appellate review ended and Petitioner’s court-martial result became final when the CAAF denied Petitioner’s petition for reconsideration of its denial of review of this court’s opinion. Accordingly, we lack jurisdiction to grant the requested habeas relief. On appeal, Petitioner challenged, inter alia, whether the court-martial lacked personal jurisdiction over him because he had been discharged from the Air Force. This court concluded, inter alia, Petitioner “was not effectively discharged from the Air Force for purposes of court-martial jurisdiction,” and we affirmed the findings and sentence. The United States Court of Appeals for the Armed Forces (CAAF) denied review of this court’s opinion, and subsequently denied Petitioner’s petition for reconsideration of the denial. On 4 October 2024, Petitioner filed the instant Petition for Relief in the Form of a Writ of Habeas Corpus. Petitioner now asserts the court-martial lacked personal jurisdiction over him on a theory he did not raise in his initial appeal: that 10 U.S.C. § 651 deprived the court-martial of jurisdiction because Petitioner had been serving in his “initial period” of enlistment for over eight years at the time of trial. You will see that in the just posted MJRP report, on page 16, there is some discussion of the short-martial. This past Friday, a petition for a writ of certiorari was filed at the Supremes--No. 24A386--challenging the short court-martial. We'll post the petition when available. In the meantime, here is United States v. Wheeler, __ M.J. ___, No. 23-0140, 2024 CAAF LEXIS 479 (CAAF Aug. 22, 2024). In summary, CAAF says that This case involves a charge of sleeping on post that was referred to a military judge-alone special court-martial. Had the convening authority referred this case to a general court-martial, Appellant would have been entitled to trial before a panel of members, Article 16(b)(1), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 816(b)(1) (2018), and the maximum punishment would have included a dishonorable discharge, forfeiture of all pay and allowances, and one year of confinement. Manual for Courts-Martial, United States pt. IV, para. 22.d.(1)(c) (2019 ed.) (MCM). Instead, the convening authority referred the charge to a special court-martial before a military judge alone pursuant to Article 16(c)(2)(A), UCMJ, 10 U.S.C. § 816(c)(2)(A) (2018). As a result, Appellant could not elect trial by a panel of members and the military judge was barred from adjudging a sentence that included a punitive discharge, confinement for more than six months, Article 19(b), UCMJ, 10 U.S.C. § 819(b) (2018), or forfeitures of pay for more than six months. Rule for Courts-Martial (R.C.M.) 201(f)(2)(B)(ii) (2019 ed.). United States v. Wheeler, 83 M.J. 581 (N-M. Ct. Crim. App. 2023). Your browser does not support viewing this document. Click here to download the document. Your browser does not support viewing this document. Click here to download the document. United States v. ChapmanA CP case in which the MJ makes special findings and raises "a question of first impression." It is a standard case of solicitation, receipt, viewing, and distribution. The two legal issues are merger for sentencing and the nature of the MJ's special findings. The MJ had denied a defense motion for merger on sentencing. The Appellant pled not guilty but was convicted "of one specification of solicitation, and one specification of possessing child pornography, one specification of distributing child pornography, one specification of receiving child pornography, and one specification of viewing child pornography[,] MJA. Having fully considered all the pleadings and the entire record, we find that as the evidence was presented in this trial, including the military judge's sua sponte special findings, appellant's conviction of four separate child pornography offenses was an unreasonable multiplication of charges for findings and will merge the four specifications of Charge II into two specifications, dismiss the remaining two specifications, and reassess the sentence. We find appellant's conviction for solicitation legally sufficient and affirm the finding and sentence for Charge I. The court takes no issue with the principle of special findings when the MJ is the factfinder. That itself does not seem to have created the Quiroz problem, rather it was the findings themselves. As ACCA interprets the facts and findings, The military judge entered factual findings when she identified five files on Prosecution Exhibit 2 that contained child pornography "within the charged range that the court could link to." In doing so, the military judge distinguished Prosecution Exhibit 2 from several other exhibits admitted at trial. While these other exhibits contained over 2,000 unique images and videos of purported child sexual abuse material, the military judge found the dates associated with these files were either "outside of the range" charged by the government or could not be definitively proven. The value of the special findings is now clear--mixed findings within findings. Because of those findings, the court ultimately found a Quiroz problem and reassessed the 35-month confinement to 23. [C]onvicting and sentencing appellant, as the military judge did, exaggerated appellant's criminality in relation to the available evidence. Instead of bearing two convictions, one for viewing and distributing child pornography and one for receiving and possessing child pornography, appellant was burdened with the weight of four convictions. Finally, the military judge's decision to sentence appellant consecutively for each specification exacerbated her error. While the adjudged sentence for each specification was well under the statutory maximum for each offense, the decision to decline appellant's request for merger for sentencing purposes and then sentence him consecutively for each specification unreasonably increased his sentence. United States v. ResutekAppellant pled guilty to "one specification of desertion, one specification of failure to go to his appointed place of duty, one specification of absence without leave, one specification of failure to obey a lawful order, one specification of wrongfully using marijuana, and three specifications of fraudulently making worthless checks[.]" In October 2024, the Court set aside some of his convictions based on a problematic providency inquiry and the possibility of affirmative defenses. United States v. Resutek, No. ARMY 20220431, 2024 CCA LEXIS 459 (Army Ct. Crim. App. Oct. 28, 2024) (memo. opinion). However, the Appellant asked for reconsideration on the providence of the bad check specifications. "Appellant submitted the case upon its merits. And some merit it does possess." United States v. Adams, 74 M.J. 589, 590 (Army Ct. Crim. App. 2015). We directed the parties to brief whether appellant had set up matters inconsistent with his guilty pleas. Considering the entire record, we answer "yes" for all but the findings of guilty for a wrongful marijuana use and worthless check offenses. We provide appropriate relief in our decretal paragraph. The two primary issues put in issue throughout the providence inquiry as to all the offenses were duress and voluntary intoxication (in a specific intent case).
THE MILITARY JUSTICE REVIEW PANEL: 2024 Comprehensive Review and Assessment of the Uniform Code of Military Justice. Your browser does not support viewing this document. Click here to download the document. Sec. 509. Modification of Authority to Separate Officers When in the Best Interests of the Service.
Sec. 531. Consolidation of military justice reporting requirements for the military departments. Sec. 532. Term of office for judges of the Court of Military Commission Review. Sec. 533. Aiding the enemy definition for purposes of the Uniform Code of Military Justice. Sec. 534. Pre-referral requirements related to the sufficiency of admissible evidence. Sec. 535. Detailing of appellate defense counsel. Sec. 536. Expanded command notifications to victims of domestic violence. Sec. 537. Remote appearance before a board of inquiry. Sec. 538. Extension of Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces. Sec. 539. Reimbursement of expenses and property damage for victims of designated offenses under the Uniform Code of Military Justice. Sec. 540. Removal of marriage as a defense to article 120b offenses. Sec. 541. Removal of personally identifying and other information of certain persons from the Department of Defense Central Index of Investigations. Sec. 542. Authority of special trial counsel with respect to certain offenses occurring before effective date of military justice reforms. Sec. 543. Investigations of sexual assaults in the National Guard. Sec. 544. Analysis on the advisability to revise Military Rule of Evidence 513. Sec. 2. With this order, I hereby prescribe regulations for the randomized selection of qualified personnel as members of a court-martial to the maximum extent practicable, pursuant to section 543 of the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023, Public Law 117-263 (10 U.S.C. 825(e)(4)). . . . This Marine Administrative Message (MARADMIN) announces critical updates to formal sexual harassment (SH) complaints regarding Investigating Officers (IO), mandatory initiation of administrative separation for all formal substantiated SH complaints, and the implementation of the Behavioral Intervention and Professional Reset Program (BIPR). |
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