The Revenue Cutter Service

The CGCCA issued 15 opinions last year. This year, they have issued six so far. Fewer cases or better lawyering — who knows?

Did someone say waiver? In Fink, in brief, Appellant asked, "(11) Did trial counsel make improper argument that warrants relief?" Further in brief--aka summarily--CGCCA said "that Appellant forfeited his objection to trial counsel’s argument by failing to object at trial and fails now to establish plain and prejudicial error."

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In Reimonenq, CGCCA rejects a 62 appeal. Finding the military judge properly "granted in part and denied in part the suppression motion." At issue was whether the Appellant was in custody and knowingly and intelligently waived his rights. Huuum. Have we not seen this before where the MCIO agents play fast and loose with the rights advisement? See, e.g., 
United States v. Patterson. (Som comments here.)

Reimonenq was subject to restraints on his freedom of movement long before the CGIS interview:
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• Upon reporting aboard USCGC Legare, Appellee was intercepted, had his car keys, wallet, and phone taken, and was escorted to a mental health evaluation.
• After the evaluation, he was placed under guard in a room for roughly ten hours before the investigators arrived.
• Crew members monitored him, and at least one had enforcement tools (pepper spray and handcuffs).
  
  

CGCCA rejected the Government’s argument that only the actions of CGIS, and not command-imposed restrictions, should factor into the custody analysis. Because the command is itself a government actor in military discipline and the totality of events showed significant restraint, the interview occurred in a custodial setting. 

The rights waiver was invalid because:

Misleading Advisement: The investigating agent inaccurately told Appellee early in the rights advisement that the government “wasn’t suspecting you of anything,” which the Court identified as an affirmative misstatement.

Minimization and “Paperwork” Framing: The agents repeatedly characterized the rights form as mere “paperwork” and downplayed the seriousness of the situation.

Mental State and Prior Events: Earlier that day, Appellee had undergone a mental health evaluation and was not clearly told what was happening, contributing to his lack of understanding of the legal process and the significance of waiving rights.

Invocation of Right to Counsel: Appellee unambiguously requested a lawyer during the advisement. Once an individual in custody invokes the right to counsel, questioning must cease until counsel is present. The Court agreed with the military judge that agents failed to scrupulously honor this invocation and improperly continued questioning that generated inculpatory statements.

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In Ray (published), an issue was whether the military judge abused his discretion by improperly allowing an unsworn statement to be presented by the accuser during sentencing. (The opinion also discusses waiver of some objections.)

Members acquitted Appellant of abusive sexual contact and assault consummated by a
battery, but they convicted him of violating a lawful general order by wrongfully engaging in sexually intimate behavior in a Coast Guard-controlled workplace.

During presentencing, Ms. AA, through counsel, proffered an unsworn statement. Trial
defense counsel objected, first, to Ms. AA being considered a “crime victim” of the orders
violation and second, in the alternative, to specific portions of the unsworn statement. After  ​ruling that Ms. AA met the definition of a “crime victim” under R.C.M. 1001(c), the military
judge sustained some, but not all, of trial defense counsel’s objections to specific portions of the
unsworn statement. Appellant now asserts the military judge erred, both by allowing Ms. AA to
provide an unsworn statement at all and by allowing specific portions of the unsworn
statement—including some that trial defense counsel did not object to.

CGCCA agreed the alleged victim was a crime victim for Article 6b, because of the original charges. The issue then is what, if anything, she could say in sentencing about the acquitted conduct and its effects.

Despite finding some errors, CGCCA found

First, we again note the military judge’s excellent instructions, which made it clear to the members that they were only to sentence Appellant for the orders violation and were to disregard anything they heard that they concluded pertained to the offenses of which they had acquitted Appellant. Second, the trial counsel kept his sentencing argument tightly focused and did not mention Ms. AA’s transfer. Third, the members had already heard Ms. AA testify to her belief that she had been assaulted during the merits portion of the trial.