A dismissal with prejudice is a remedy for a prosecution discovery violation. But the military judge has to get to that remedy through a proper and orderly analysis, which Judge Hardy, writing for everyone, says the military judge didn't do. So, the military judge gets a do-over. Judge Hardy writes for a unanimous court on an Article 62 appeal.
At trial the alleged victim began to testify about a statement made to her by Appellant. The defense objected because the statement had not been previously disclosed to the defense in discovery. During the ensuing Article 39(a) session the trial admitted they knew of the statement prior to trial and had learned of the specific statement two days before trial. Trial counsel asserted an “oversight.” The trial counsel was released from further participation in the case. The new trial counsel told the military judge that the prosecution had the information five days before trial. Apparently there had been a motions session to consider evidentiary motions within those five days.
Judge Hardy proceeds to tell us that
“ The military judge [had] ordered the dismissal pursuant to Rule for Courts-Martial (R.C.M.) 701(g)(3) after the Government violated its discovery obligations by failing to disclose to the defense a statement made by the alleged victim to investigators before trial. Although R.C.M. 701(g)(3) does not expressly sanction dismissal with prejudice as a remedy for discovery violations, it does authorize military judges to impose a remedy that is “just under the circumstances.” R.C.M. 701(g)(3)(D). We granted review to determine
Judge Hardy suggest the question arises
out of apparent tension between R.C.M. 701(g)(3)(D) and this Court’s decision in United States v. Stellato, 74 M.J. 473 (C.A.A.F. 2015). Although the plain language of the rule permits any remedy that is “just under the circumstances,” the ACCA interpreted Stellato as mandating that dismissal with prejudice is only available as a remedy if it is the least drastic remedy sufficient to cure the Government’s error. Stellato does not impose such a restriction.
In affirming the ACCA vacating the dismissal order at trial, Judge Hardy tells us that
applying both R.C.M. 701(g)(3)(D) and Stellato, the military judge was required to consider whether any alternatives to dismissal with prejudice were available before imposing that remedy, but was also authorized to reject alternative R.C.M. 701(g)(3)(D) remedies if she found that they were not just under the circumstances. Because the military judge focused on whether dismissal with prejudice was the least restrictive remedy sufficient to cure the Government’s error, rather than on whether lesser R.C.M. 701(g)(3)(D) remedies would have been just under the circumstances[.]
Judge Hardy adverts to R.C.M. 701(g)(3) which lists four remedies for a discovery violation. He notes also that a dismissal may be appropriate under R.C.M. 701(g)(3)(D). Working through the Rules and Stellato, Judge Hardy concludes the military judge abused her discretion because she had an erroneous view of the law.
In exercising her discretion to impose a remedy for discovery violations under R.C.M. 701(g)(3)(D), the military judge may impose dismissal with prejudice if, after considering whether less severe alternative remedies are available, she concludes that dismissal with prejudice is just under the circumstances. The military judge’s ruling in this case was influenced by an erroneous view of the law as requiring her to impose the least drastic remedy to cure the discovery error. As a result, she improperly limited her analysis to whether each remedy would cure the prejudice to the accused and failed to articulate why dismissal with prejudice was just under the circumstances.
Under R.C.M. 701(g), the military judge may take one or more of the following actions:
(A) Order the party to permit discovery[.] Moot.
(B) Grant a continuance[.] "Granted" through this appeal.
(C) Prohibit the party from introducing [further] evidence, calling a witness[.] Why is this necessary now? There may actually be reasons related to the theme and theory from the defense presented in opening statement, cross-examination of other witnesses, etc., etc., etc.
(D) Enter such other order as is just under the circumstances. Stellato does not require the least drastic remedy rather a case specific one. Judge Hardy tells us “permits a broader inquiry” as to what is just.
Offline discussions of this case have suggested there are more questions than answers to the puzzle.
Why was the first TC "fired?" Combined with the dismissal sending a message that a 304(d) notice really is required "before arraignment" and it's bad to forget that?
Does the military judge now have to conclude that dismissal is appropriate?
What say you?
Is the concept of sentence disparity between co-actors dead unless an appellant can show any underlying conduct alleged was exactly the same as a co-accused's?
On appeal to the CCA, Appellant challenged whether her “sentence [was] inappropriate in light of a sentence received by another junior enlisted Airman, CM, for United States v. Behunin, No. 22-0267/AF Opinion of the Court 4 essentially the same misconduct.”
In Behunin , the two appellant's were each convicted of the similar offense, but in reality they were not co-actors in the same offense. So CAAF takes the opportunity to explain Lacy and "closely related cases."
At separate special court-martial proceedings, both Appellant and SrA CM entered guilty pleas and were convicted of their respective misconduct. Specifically, a military judge convicted Appellant of one specification of fraudulent enlistment, one specification of making a false official statement, one specification of wrongful use of cocaine, and one specification of wrongful use of LSD. As for SrA CM, a military judge convicted him of one specification of fraudulent enlistment, one specification of making a false official statement, one specification of wrongful use of cocaine, one specification of wrongful use of LSD, one specification of wrongful distribution of cocaine, and one specification of wrongful distribution of LSD.
Sr.A CM got the lighter sentence, tout alors,
[CAAF] granted review of two issues:
Air Force judges give out reprimands quite frequently along with a "Bad-conduct discharge, confinement for 3 months." McAlhaney appeals the wording of such a reprimand.
Appellant argues that the United States Air Force Court of Criminal Appeals erred in applying a plain error standard of review to the question of whether the adjudged reprimand was appropriate as written as part of its sentence appropriateness review under Article 66(d)(1), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(d)(1) (2018). We agree, and therefore set aside the lower court’s decision and remand the case for a new Article 66(d)(1), UCMJ, review.
Before the AFCCA, McAlhaney raised a number of issues.
Appellant raises three issues for our review on appeal: (1) whether the convening authority failed to consider Appellant’s clemency submission in violation of Rules for Courts-Martial (R.C.M.) 1106 and 1109; (2) whether the Government’s failure to serve Appellant with a complete copy of his record of trial (ROT) violates Article 54, UCMJ, 10 U.S.C. § 854, R.C.M. 1112(e), and due process; and (3) whether an improper reprimand in Appellant’s case made his sentence inappropriately severe.
A reader has suggested that the cost to the United States and military judiciary outweighs the exemplary effect of the reprimand on this accused or any others facing court-martial.
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
-Current Term Opinions
Joint R. App. Pro.
Army Crim. L. Deskbook