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Monday, April 3, 2023 Interlocutory Order No. 23-0104/AF. M.W., Appellant v. United States, Appellee and Marshall R. Robinson, Staff Sergeant, United States Air Force, Real Party In Interest. CCA 2022-15. On consideration of Appellant's filing, which is styled as a "writ-appeal petition or petition for extraordinary relief" for review of the decision of the United States Air Force Court of Criminal Appeals, Appellant's motion to attach, and a motion to file a brief of amici curiae in support of Appellant/Petitioner, it is ordered that the motion to attach is denied, and the motion to file a brief of amici curiae is granted. Within 10 days of the date of this order, Appellant shall file a brief addressing the following four issues concerning this Court's jurisdiction to review a writ-appeal that is filed by a "victim of an offense" (as that term is used in Article 6b, UCMJ, 10 U.S.C. § 806b) and that seeks review of a decision of a Court of Criminal Appeals on a writ of mandamus: (a) whether Article 67, UCMJ, 10 U.S.C. § 867grants this Court jurisdiction to review such a writ-appeal; (b) whether Article 6b(e)(3), UCMJ, grants this Court jurisdiction to review such a writ-appeal (as opposed to only requiring that this Court give priority to writ-appeals for which Article 67, UCMJ, or some other statute provides this Court jurisdiction); (c) whether any other statute provides this Court jurisdiction to review such a writ-appeal; and (d) whether subsequent amendments to the UCMJ require this Court to reconsider its holding in E.V. v. United States, 75 M.J. 331 (C.A.A.F. 2016), that this Court does not have jurisdiction to review such a writ-appeal. The Appellee and Real Party In Interest each may file an answer no later than 5 days after the filing of Appellant's brief. The Court reserves judgment on whether it will grant, deny, or dismiss Appellant's filing. AFCCA decision here. No. 23-0134/AF. U.S. v. Zachary C. Rocha. CCA 40134. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 on this date: WHETHER THE PRESIDENTIALY-ENUMERATED ARTICLE 134, UCMJ, OFFENSE OF INDECENT CONDUCT PROVIDED APPELLEE WITH CONSTITUTIONALLY-REQUIRED FAIR NOTICE THAT COMMITTING SEXUAL ACTS WITH A CHILD SEX DOLL WAS SUBJECT TO CRIMINAL SANCTION. At AFCCA Appellant raises several assignments of error, asserting: (1) private masturbation with a doll is constitutionally protected conduct; (2) Appellant did not have fair notice that private masturbation with a doll was subject to criminal sanction; (3) the military judge erred in denying the Defense’s motion to dismiss for failure to state an offense; (4) trial defense counsel was ineffective; and (5) Appellant’s conviction is not legally and factually sufficient. Additionally, Appellant asserts: (6) the Government cannot meet its burden to prove that the military judge’s failure to instruct the panel that a guilty verdict must be unanimous was harmless beyond a reasonable doubt; (7) trial defense counsel was ineffective for failing to ask two panel members questions regarding their experience and ability to sit in Appellant’s court-martial; and (8) trial counsel engaged in prosecutorial misconduct in findings argument. Because we find in Appellant’s favor on issue (2), we do not address the remaining issues. Some basic facts Appellant purchased online a short silicone doll with female physical characteristics, including oral, anal, and vaginal orifices and small breasts. Appellant had the doll shipped to another Airman’s house; Appellant lived on base and could not receive the package at his on-base postal box. Appellant also purchased clothing for the doll. About three weeks after Appellant received the doll, Appellant’s commander ordered an inspection of the dorms, including Appellant’s dorm room. Command representatives received a briefing from agents from the Air Force Office of Special Investigations (AFOSI) before beginning their inspection. Appellant shared a kitchen and bathroom with another Airman, but had his own separate bedroom. The Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces has released the following reports and study on March 30, 2023: Fifth Annual Report, Report on Victim Impact Statements at Courts-Martial Presentencing Proceedings, and the Appellate Review Study.
The U.S. Court of Appeals for the Armed Forces will hold its annual CLE on 10 and 11 May at the Antonin Scalia School of Law. More details here.
United States v. SteeleSteele is a bouncer--ACCA remands for resentencing--back to ACCA--on to CAAF--back to ACCA. In this second appeal, Appellant raised a new argument with respect to the findings that he had not raised at trial, in his first appeal, or at resentencing. The ACCA, however, declined to consider this new argument because Appellant could not show “good cause for his failure to raise the claim in the prior appeal” and “actual prejudice resulting from the newly-raised assignment of error.” The ACCA adopted this “cause and prejudice” standard in part because federal courts use this standard when hearing successive appeals in habeas corpus litigation. In the sole assigned issue before this Court, Appellant contends that the ACCA’s application of a cause and prejudice standard violated Article 66, Uniform Code of Military Justice. We remand the case for the ACCA to clarify whether Appellant waived or forfeited the issue that he raised for the first time in his second appeal. Answering this question is essential to the resolution of the case[.]
United States v. LattinA suppression issue.
I. Whether the lower court erred when it did not apply the exclusionary rule. A full house, in a 3-2 decision answers the questions in the negative. (S.J. Crawford was the third ace.)
Brown v. Kendall, et alBrown is a decision from a district court in Maryland on a military habeas corpus petition (2023 U.S. Dist. LEXIS 52797). (United States v. Brown (AFCCA).) Jamie L. Brown filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging the validity of his court-martial by the United States Air Force (the "Air Force"). ECF 1 & 4. The respondents, Frank Kendall, Secretary of the Air Force, and Thomas Shubert, President of the Air Force Clemency & Parole Board, move to dismiss the petition. ECF 16. The motion is fully briefed. ECF 18 & 21. No hearing is necessary. See Loc. R. 105.6 (D. Md. 2021). For the following reasons, the petition is dismissed for failure to state a claim. Brown is a useful review of how military habeas corpus petitions might be disposed of. Brown was on parole when he filed his petition, but was released from parole three days after the filing. 1. Brown continues the principle that the petitioner does not have to be confined to seek habeas corpus. 2. Brown restates the principle that it is the petitioner's status at the time of filing that gives jurisdiction. 3. Brown holds that it is the president of the Clemency & Parole Board (not the Service secretary) who is the "immediate custodian" for habeas purposes for those on parole. If the person is still confined then it is the commander or commanding officer of the confinement facility who holds the body. Brown claims that the military judge overseeing the court-martial panel in his case violated his due process rights by (1) permitting the panel to return findings by less than a unanimous verdict; (2) instructing the panel as to uncharged theories of criminal liability; and (3) excluding potentially exculpatory evidence and refusing to permit Brown to cross examine a witness based on that evidence. The respondents argue that Brown's claims were fully and fairly considered by the military courts. The district court judge follows the 10th Circuit jurisprudence because (in a footnote) Courts "consistently justify adoption of the Tenth Circuit's standard on the basis that the United States Disciplinary Barracks are located at Fort Leavenworth, Kansas, which has enabled the Tenth Circuit to develop expertise and a significant body of case law in this area." Anderson v. Bolster, No. 1:19cv75 (LO/TCB), 2020 WL 5097516, at *4 n.4 (E.D. Va. Aug. 27, 2020), aff'd, No. 20-7707, 2022 WL 4998074 (4th Cir. Oct. 4, 2022) (unpublished). Ultimately the district court judge determined that all the claims had been fully and fairly considered and not subject to redetermination in a habeas petition. In response to an earlier post, Rob Feldmeier (who represented Brown at AFCCA and before the district court) noted that "If the claim is jurisdictional, the full and fair standard doesn't apply - the standard of review is de novo." Brown attempts to sidestep [this] problem by arguing that his Ramos claim is a jurisdictional claim and not subject to the Burns full-and-fair-consideration analysis. He cites Larrabee v. Braithwaite, 502 F. Supp. 3d 322, 327 (D.D.C. 2020), rev'd sub nom. Larrabee v. Del Toro, 45 F.4th 81 (D.C. Cir. 2022), for the proposition that a court-martial is void if the statute creating it is unconstitutional and void "because courts-martial have no inherent jurisdiction or independent existence." ECF 18, at 2-3. He contends that the court-martial in his case is void because "the portion of the UCMJ authorizing non-unanimous panel verdicts is unconstitutional and void" under Ramos. Id. In short, he reads Larrabee as rendering any constitutional challenge to the statutory procedures of the military courts a jurisdictional claim. But Larrabee did not say that. Within the decision the district court judge hews to the Tenth Circuit's recent and repeated affirmations that full and fair consideration is given when a claim is adequately and thoroughly briefed, even if the military courts summarily disposed of the claim. "ORDER. For the reasons to be set forth in the Memorandum Opinion to be issued by the Court within the next sixty days, absent extraordinary circumstances, the Court will grant in part and deny in part the defendant's motion to dismiss, and grant in part and deny in part the plaintiff's motion for summary judgment. Accordingly, it is hereby ORDERED that the 16 Defendant's Motion to Dismiss is GRANTED IN PART AND DENIED IN PART. The motion is GRANTED to the extent that it seeks dismissal of the Count I of the Complaint in this case. The motion is DENIED in all other respects. It is further ORDERED that the 18 Plaintiff's Cross-Motion for Summary Judgment is GRANTED IN PART AND DENIED IN PART. The motion is GRANTED to the extent that it seeks summary judgment as to Count II of the Complaint in this case. The motion is DENIED in all other respects. It is further ORDERED that this Order is not a final ! Order subject to appeal. Signed by Judge Reggie B. Walton on March 31, 2023. (lcrbw3) (Entered: 03/31/2023)"
United States v. ThompsonThis case presents a government appeal of a military judge's ruling to exclude all testimony of a CID agent based on a Kastigar problem. (NB) This case might have turned out differently had the CID recorded the Appellant’s earlier statements. 1. Appellant was interrogated by CID for his involvement in the murder of two soldiers—but the interrogation was not recorded. 2. Appellant was then reinterviewed under a grant of immunity. This interrogation happened over two days for a total of about eight to 10 hours. 3. Appellant’s subsequent guilty plea as an aider or abettor was set aside and a rehearing commenced. 4. In a pretrial interview with the new prosecutor’s the CID agent, according to the MJ’s finding of fact, disclosed “immunized information” to them ""after the prosecution team warned him to not reveal any immunized information to them."?" 5. Trial litigation ensued from which the military judge determined, in part, that Not only [has SA AA's] anticipated testimony been so colored, so has his subjective belief that the non-immunized and non-'minimized' statements are the more accurate statements of the accused. At some immeasurable level, his belief stands to impact the factfinder indirectly in the form of his credibility on the stand. Stated another way, SA [AA] presents as a confident witness, resolute that his testimony accurately reflects his memory. Yet, the Government has not disproven that his confident resoluteness is in any way the product of the immunized statements. Perhaps in the background people were wondering how the CID agent could have such a great (confident) memory of two lengthy interrogations at least four years earlier. Had the interrogation and the immunized interview been recorded, all the CID agent would have been needed for was to lay a foundation for introduction of the two interviews. For many years investigators had resisted recording interrogations out of fear there would be more suppression litigation. Experience has shown the value of recording interrogations and interviews. People are still confessing, it's harder to challenge a recorded interview, and problems such as happened in Thompson are potentially avoided. United States v. JonesJones is a reminder, primarily to military judges, that when an accused "raises" a potential defense during his sentencing case, it's a good idea to reopen the providence inquiry. Jones pled guilty to conspiracy to sell and selling government property and use of marijuana. The stipulation of fact and statements to the military judge in providency denied any defenses. Although there was a statement that "he was feeling "really depressed" and smoked the marijuana because he thought it would make him feel better." During sentencing a defense witness said he thought Jones was "depressed" at the time of the offenses and during an unsworn statement Jones said he was "very depressed," had "very suicidal thoughts," and this lead him to smoke marijuana. He also referenced receiving counseling and a desire to continuance counseling. The court finds the questions from the DC to Appellant leading to the statements about mental health to be "inartful." While the facts here don't present a defense, an artful suggestion would be that his mental state can be "evidence" of extenuation and mitigation, and his statements about getting help is "evidence" of rehabilitative potential. (The statements were from the unsworn. Was there evidence through records of any screening and counseling which could support the unsworn?) The military judge did not reopen providency. On appeal, the court found forfeiture of the issue and proceeded to a plain error analysis of an improvident plea. The court found "obvious error" in not following R.C.M. 912(h)(2). (Trial counsel take note. While it's the duty of the military judge to resolve inconsistencies in the plea, it may be a really good idea for the prosecution to ask the MJ to do that when a potential inconsistency arises.) But there was no prejudice and Without a substantial question concerning the plea, we find an R.C.M. 706 inquiry unnecessary. This finding is buttressed by appellant's declination to raise the issue on appeal. This issue could have been resolved quickly by reopening the providence inquiry, and so we reiterate the requirement to resolve inconsistencies during a guilty plea remains both proper procedure and best practice. Staff Director, Military Justice Support Group, Supervisory GS-15
The incumbent for this position serves as the Staff Director, Military Justice Support Group, Defense Legal Services Agency and leads a team of professionals supporting the high-visibility, high-priority work of the Military Justice Review Panel (MJRP) and the Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces (DAC-IPAD), which include renowned members of the bench and bar, as well as leading subject matter experts in such fields as criminology and forensics. The incumbent also performs other duties as assigned by the DoD General Counsel. The incumbent must be able to exercise significant initiative in accomplishing the position’s assigned missions. The incumbent leads a professional staff of attorneys, paralegals, and data analysts-coaching, mentoring, and supervising them as they conduct research concerning case law, statutes, regulations, policy documents, congressional documents, secondary sources, and data reports related to military and civilian criminal law and criminal investigations. This work includes comparative analyses of military, federal civilian, state, and foreign criminal justice and investigation systems in support of the MJRP and DAC-IPAD. The incumbent ensures that the supported organizations comply with all applicable laws, rules, and procedures governing advisory committees and is responsible for ensuring the production of timely, high-quality written reports and correspondence. The incumbent must be an active member in good standing of the bar of the highest court of a State, the District of Columbia, or a Territory, Commonwealth, or Possession of the United States. The incumbent performs a full range of supervisory responsibilities. This position is not suitable for remote work. The incumbent should be a proven leader adept at running a high-tempo organization. The incumbent should be well-versed in military justice and must be fully committed to promoting and respecting equal employment opportunity and diversity in the workplace. The incumbent must have superior interpersonal skills. The incumbent reports to the Deputy General Counsel for Personnel and Health Policy and, through the Deputy General Counsel and the Principal Deputy General Counsel, to the General Counsel of the Department of Defense. We are accepting resumes until April 6, 2023. To apply, please email resume to [email protected]. The subject line should state “Resume File: [APPLICANT’S LAST NAME, FIRST NAME].” Please also reference this position in the body of your email. United States v. VargasA 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? United States v. Behunin |
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