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Donate here. Gray v. PayneIn 2018, Gray pled guilty to allegations, including sexual assault of a child, sexual assault, sexual assault consummated by battery, assault, prejudice to good order and discipline, and failure to obey an order. The victim—his adopted stepdaughter—was between the ages of 13 and 16 when Gray sexually assaulted her. At age 16, she gave birth to Gray's biological daughter, as confirmed by DNA testing. In exchange for Gray's plea, the Army agreed to dismiss without prejudice the remaining charges, which included rape of a child, sexual abuse, and additional sexual assault and assault charges. Those charges related to another adopted stepdaughter and the victim's mother. A military judge sentenced Gray to a reduction in rank, 44 years' confinement, and a dishonorable discharge with forfeiture of all pay and allowances. His appeal to ACCA on IAC grounds failed and CAAF denied his petition.** He claimed defense counsel provided ineffective assistance by advising him to plead guilty to offenses he did not commit, to agree to an incorrect stipulation of facts, and to lie during his providence inquiry with the military judge. In a shift from his previous statements, he insisted the sex with the victim was consensual and occurred only after her sixteenth birthday. His pro se petition for habeas corpus followed. The Tenth Circuit denied his appeal of the district courts denial of his petition. "Federal courts are empowered under 28 U.S.C. § 2241 to entertain habeas petitions from military prisoners. But our review of court-martial proceedings is very limited." Santucci, 66 F.4th at 853 (internal quotation marks omitted); see also id. (describing the standard of review as "deferential" and noting that "the deference we give to military tribunals is even greater than that we owe to state courts" (internal quotation marks omitted)). Gray's inability to satisfy the second and fourth factors of Dodson caused his petition to fail. The district court found that the military courts adequately considered Gray's ineffective assistance claim. It highlighted the ACCA's efforts to supplement the record by requesting affidavits from Gray's counsel and concluded that the ACCA's opinion shows that it rejected the claim only after a complete record analysis—thus giving full and fair consideration to his claim. Gray's claim that the district court should have granted discovery also failed. Gray's discovery motion sought a transcript of a phone call between another USDB inmate and the victim, during which the victim supposedly told the inmate that she did not want to testify but her mother made her do so. The district court found that he had not shown good cause for discovery because (1) "the alleged statement by the victim does not suggest that petitioner did not commit the crime," and (2) "the facts at issue in the discovery request do not bear on the Dodson factors that preclude . . . merits review." ** We have noted the potential change to Supreme Court direct appeal based on the recent conference committee draft of the NDA 2024. See Gray v. Payne, No. 23-3079, 2023 U.S. App. LEXIS 32150, at *3 n.2 (10th Cir. Dec. 5, 2023).
Cell phone records obtained by warrant are not self-authenticating under F.R.E. 902(11). More will be required. United States v. Charbonier-Laureano, 2023 U.S. Dist. LEXIS 218249 (D.P.R. Dec. 5, 2023). The fact spousal communications were by cell phone doesn’t destroy their confidential nature. There’s still a reasonable expectation of privacy. United States v. Candelaria, 2023 U.S. Dist. LEXIS 218310 (D.N.M. Dec. 7, 2023).* Hat tip to Fourth Amendment blogAs we reach the end of the year, many are considering what nonprofits they would like to donate to. If you enjoy reading this blog, please consider donating to NIMJ. There is a monthly cost associated with keeping the website running and the domain name. Any donations of any amount would be appreciated.
Email [email protected] to express interest, and a response will follow with instructions on how to give. United States v. Buhl, __ M.J. ___ (Army Ct. Crim. App. 2023)Where the government overreached in its second prosecution -- after a general court-martial acquitted the appellant of the same act charged under a different article - we grant relief by setting aside the result. Our decision renders the appellant's assigned error moot.
The court first decided that the Appellant had preserved the issue for appeal. The court decides, the issue is preserved absent a formal motion or objection. The court considers that "the defense protested at length to the trial judge (and the convening authority) about the government's repeated efforts to punish appellant for the same act[,]" preserves the issue. The court had ordered briefs on whether there was prosecutorial overreach in light of R.C.M. 906(b)(10). And, "among other things giving the government an opportunity to explain the case's trajectory." The government argued that the NJP refusal justified the referral to court-martial, which Section 533 of the conference version of the NDAA for FY 2024 includes expansion of SCOTUS's cert jurisdiction over CAAF cases.
Conference Report. Update. Art. 130 would be expanded to include a person in a "dating relationship." The definitions section lays out some factors to consider to determine if there is such a relationship. SecDef will be charged to conduct a feasibility study of having unanimous verdicts. Join us tomorrow at 12:00pm ET, via Zoom, to discuss the recent news regarding OSTC.
Anonymous participation is possible--see instructions here. We will be taking comments from participants, including anonymous comments via the anonymous Q&A feature on zoom. Technical details below: Topic: CAAFlog Pop-up Townhall: The Firing of Wells Time: Dec 7, 2023 12:00 PM Eastern Time (US and Canada) https://villanova.zoom.us/j/95459379004 Meeting ID: 954 5937 9004 --- One tap mobile +13092053325,,95459379004# US +13126266799,,95459379004# US (Chicago) Stafford has three interesting issues: (1) is there court-martial personal jurisdiction, (2) unavailable discovery/evidence, and (3) use of acquitted conduct for Mil. R. Evid. 413 purposes. JurisdictionOn 19 February 2019, while Appellant’s civilian trial for the August 2018 alleged rape of HG was pending, Appellant reached the expiration of his then current enlistment. Appellant was also under investigation by the Air Force for the 2017 alleged assaults against SK. In a challenge for the first time on appeal Appellant essentially contends the Government’s extension of his enlistment beyond 19 February 2019 for the “possibility of a future court-martial” was a subterfuge in order to administratively discharge him with a UOTHC service characterization. [2] Appellant contends it was only after the state court acquitted him of the alleged rape of HG that the Government began preparing in earnest to prosecute him. Appellant further suggests certain of the legal office’s administrative hold requests were untimely or otherwise deficient in some respect. |
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