Plaintiffs bring this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiffs are incarcerated at the U.S. Disciplinary Barracks in Fort Leavenworth, Kansas ("USDB"). Plaintiffs complain about limitations on receiving materials deemed obscene, grooming standards, and the granting of abatement days for completing certain treatment groups at the USDB. Plaintiffs allege that they have been deprived of their rights under the First, Fifth, and Fourteenth Amendments. One of the books at issue is The Valens Legacy. The book and others by the same author are available at Good Reads, with a note at the bottom of the asbtract. WARNING: The Valens Legacy contains explicit sexuality, nudity, violence, bad language, attempted murder, actual murder, self-defense, proactive self-defense, destruction of private property, vandalism, breaking and entering, tantric magic, polyamory, mayhem, gratuitous sex and violence, littering, breaking speed limits, a used car dealer, one Plymouth hemi, and some poor guy who just wants to earn a paycheck as a cashier. The complaint as to abatement days is simple recited as The Complaint alleges that the USDB has implemented a new policy on abatement days awarded for the completion of approved programs. According to the Complaint, the USDB is applying the policy only to newly arrived inmates. Plaintiff Ewan requested that the Commandant reconsider this position as it is not fair to current inmates who completed the same programs. Ewan's request was denied. After rehearsing a number of procedural errors the court Plaintiffs are required to show good cause why their Complaint should not be dismissed for the reasons stated herein. We are trying to research the clemency and parole process as it compares with civilian jurisdictions. Any readers who are former CPB members, and who are interested in discussing their experience, please email us.
6 November 2023, Journal entry.
No. 23-0163/AF. U.S. v. Matthew P. Leipart. CCA 39711. On consideration of a motion by Movant K.C. to compel all counsel of record to comply with C.A.A.F. R. 39 (2023) by serving her counsel with a copy of any pleading or other paper, it is noted: (1) C.A.A.F. R. 39(a) requires service of pleadings and other paper on "all counsel of record, including amicus curiae counsel"; (2) under C.A.A.F. R. 16(a), a counsel becomes a counsel of record by filing a notice of appearance or making another filing "in the representation of a party to an action before the Court"; (3) Movant is not a party to the action before the Court, as the term "party" is used in C.A.A.F. R. 8(b), because when this Court granted Appellant's petition for review under Article 67(a)(3), Uniform Code of Military Justice, 10 U.S.C. § 867(a)(3) (2018), the Court recognized only two parties: Appellant (Technical Sergeant Matthew P. Leipart) and Appellee (the United States); (4) Movant's counsel therefore does not represent Movant as a party to an action before the Court and therefore cannot be a counsel of record; (5) Movant has not filed a brief as amicus curiae under C.A.A.F. R. 26(a), and therefore Movant's counsel is not amicus curiae counsel; and (6) Movant and her counsel are therefore not entitled to service under C.A.A.F. R. 39(a). Accordingly, it is ordered that said motion is denied. The Joint Service Committee on Military Justice (JSC) will have a remote attendance option for its public meeting about proposed changes to the Manual for Courts-Martial on Nov. 14, 2023.
Instructions for the remote option (via Zoom) are now posted on the JSC website. You must register to attend. A direct registration link is here. Written comments may be submitted per the instructions on the Federal Register. Thursday, November 2, 2023
Order Granting Petition for Review No. 23-0224/AF. U.S. v. Charles S. Nestor. CCA 40250. On consideration of the petition for grant of review of the decisions of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue: WHETHER UNITED STATES v. PHILLIPS, 70 M.J. 161 (C.A.A.F. 2011) WAS WRONGLY DECIDED, AND UNDER A STARE DECISIS ANALYSIS, SHOULD BE OVERRULED. IF SO, SHOULD APPELLANT'S REMAINING CONVICTION BE SET ASIDE AND DISMISSED BECAUSE THE GOVERNMENT PROVIDED INSUFFICIENT EVIDENCE AS TO THE TERMINAL ELEMENT? In Griffin, the Appellant agreed to a GP and that a Dishonorable Discharge was required to be adjudged. He challenged that on appeal. This case was decided under the 2016 MCM. The court finds error in the required DD as part of the PTA under the old rules. However, the court finds there is no evidence of prejudice. Appellant and the convening authority reached a pretrial agreement, and the offer portion required the military judge to sentence appellant to a dishonorable discharge. The military judge discussed this provision in detail with appellant at the guilty plea inquiry, and he ultimately indicated it was his "expressed desire" to receive a dishonorable discharge. The military judge sentenced him to that punishment, and confinement. In Baylor, the court addressed post-trial delay and the failure of the MJ to make a "meaningful" inquiry into the PTA. Finding no harm, the court affirms the findings and sentence. As to the delay, the court set-aside the 307 days of confinement (already served by this time) and affirmed only the BCD. In Kibler, a GP case with Art. 128b allegations, there are complications. 1. A specification is set aside. Applied here, the military judge erred in failing to resolve the substantial conflict and inconsistencies between: (1) whether the Article 128b offense as amended in Specification 2 of Charge V alleged a violation of Article 128b(5) (suffocation) or Article 128b(1) (violent offense); (2) the fact that the amended allegation, asserting that appellant covered his wife's chest and neck with a pillow, failed to meet the legal definition of "suffocation" (which again requires a covering of the nose or mouth); and (3) the fact that the parties amended the specification to expressly delete any reference to the face, yet appellant contended that he suffocated his wife by placing the pillow over her face. Given these contradictions, appellant was not provident to Specification 2 of Charge V, and it must be set aside for legal insufficiency. See United States v. Kim, 83 M.J. 235, 238 (C.A.A.F. 2023) ("[B]ecause a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.") (citations omitted). 2. Now for something different. Paragraph 5(e) of the Plea Agreement provides that the Convening Authority may withdraw from the plea agreement "if findings are set aside because my plea of guilty pursuant to the agreement was held improvident on appellate review." Brown is the kick-off opinion for the new term. Chief Judge OHLSON announced the judgment of the Court, in which Judge SPARKS, Judge MAGGS, Judge HARDY, and Judge JOHNSON joined in part. Judge SPARKS filed a separate opinion concurring in part and dissenting in part, in which Judge JOHNSON joined. Judge HARDY filed a separate opinion concurring in part and dissenting in part, in which Judge MAGGS joined in part. Sometimes a seemingly simple statute can be devilishly difficult to interpret. As reflected by the various opinions in this case, that certainly is true with Article 91(3), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 891(3) (2018), which prohibits disrespect towards a warrant, noncommissioned, or petty officer. Nonetheless, this case resolves two key points. First, a majority of this Court holds that an accused servicemember can be convicted under Article 91(3) even if his or her disrespectful conduct occurs outside the physical presence of the victim. Importantly, that means that disrespectful language or behavior towards a warrant, noncommissioned, or petty officer can be criminally actionable even when it is remotely conveyed using a digital device such as a smartphone and even when the disrespectful language or behavior is conveyed via social media. And second, a majority of this Court holds that under Article 91(3), servicemembers can only be held criminally liable if at the time they conveyed the disrespectful language or behavior the victim was then in the execution of his or her office. The reasons for these conclusions are explained below. The opinion does not seem to change the law on disrespect to a senior enlisted person, rather it applies the statutory definitions to social media and other forms of digital communication. Therefore, we hold that disrespectful language or behavior towards a warrant, noncommissioned, or petty officer can be criminally actionable even when it is remotely conveyed using a digital device and even when the disrespectful language or behavior is conveyed via social media Parler is a case in which the court has set aside sexual assault convictions because of IAC. The facts suggest that Parler had a solid mistake defense, much of which is captured in the CID interview and in a letter written by the Appellant. The defense however failed to seek admission of the evidence through a motion in limine. In the interview, however, appellant also talked about his prior sexual experiences with the victim. Among other things, appellant described how in the past "it was kind of games," where the victim would say "no," he would stop and "she would just look at me," and then they would keep going again. Appellant also told the agent because of these past experiences, "I figured she was playing around," and she also did not mean "no" on this occasion. Appellant also described how teasing was part of the foreplay in their 4 or 5 prior sexual encounters. Finally, appellant said he held down the victim's wrist during oral sex because that was what they usually did, and in the past she had given him a "seductive no." None of this evidence (hereinafter referred to as appellant's "unadmitted statements") was before the military judge when he rendered his verdict. |
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