UPDATEs. Link to Navy notice. An alert reader has suggested the issue relates also to morphine and like poppy seed has been an ongoing scientific "fact" for years. I had my own experience many years ago with hemp oil where we defended on innocent ingestion and challenged the science. The reader has suggested these links here, here, here, and here. Army TJAG has sent a Brady notice, not sure about the other Services. The full notice with research attached is at this link. The last blanket Brady notice was, if remembered correctly, the infamous USACIL employee messing with urinalysis testing data. Also, we have this old notice on sample label problems at USACIL. We all know to cite United States v. Banker, 60 M.J. 216, 224 (C.A.A.F. 2004), for the proposition that the military judge is to determine whether the evidence is relevant and falls into one of the listed exceptions in Mil. R. Evid. 412 -- not whether the evidence is true. Banker is back with a coram nobis petition. The petition included, inter alia, an affidavit from Petitioner about the lingering effects of his conviction and its collateral consequences, and an affidavit from the named victim in Petitioner’s court-martial, LG. In that affidavit, LG recanted her trial testimony that supported the offenses of which Petitioner was convicted. Petitioner requests this court issue “a writ of error coram nobis setting aside his 9 February 2001 conviction, as it was based on false testimony.” Alternatively, Petitioner suggests that if the court is unable to determine LG’s credibility, it remand for a hearing in accordance with United States v. DuBay, 37 C.M.R. 411 (C.M.A. 1967). Two judges decide a Dubay is appropriate, the third concurs in part and dissents in part. Upon careful review of the record, we conclude a fact-finding hearing is appropriate to address two coram nobis threshold requirements, specifically Denedo factors (3) and (4). We allow that in consideration of the Denedo factors, evidence relating to LG’s veracity and Petitioner’s underlying request may be revealed. However, at this time we do not request findings of fact on the merits of Petitioner’s request for a new trial. The dissenting judge writes I agree with my colleagues’ decision to order further proceedings before the court may settle his petition and resolve whether his substantive claim on the merits warrants setting aside the findings and sentence. For this reason I join my colleagues in the decision to order an evidentiary hearing. The court wants answers to the following questions. (1) The circumstances surrounding LG’s recantation(s) of her testimony from Petitioner’s court-martial, including when Petitioner learned that LG was recanting. (Denedo factor (3)). United States v. Cabrera, __ M.J. ___, 2023 CCA LEXIS 37 (N-M Ct. Crim. App. 2023). Raised in the course of appellate review. See also United States v. Cabrera, 80 M.J. 374 (C.A.A.F. 2020); United States v. Cabrera, No. 201800327, 2020 CCA LEXIS 155 (N-M Ct. Crim. App. May 12, 2020).
United States v. Murillo, No. 202200132 (N-M Ct. Crim. App. Feb. 3, 2023) (unpub.). Raised by petition for a writ. In June 2018, Jacinto was convicted and sentenced for "rape of a child, sexual abuse of a child, and child endangerment by culpable negligence[.]" Jacinto raised a number of appellate issues including that "(1) the military judge abused his discretion when he denied Appellant's motion to order the production of one of the child victims' mental health records or review them in camera[.] In pretrial litigation, Appellant attempted to obtain medical records documenting Emily's week of inpatient treatment at the hospital. The military judge ordered the hospital to produce Emily's prescription records and her mental health diagnoses. He found the remainder of her records were privileged and that Appellant had not made a showing of vital necessity to require production or an in camera review. United States v. Jacinto, 79 M.J. 870, 877-78 (N-M Ct. Crim. App. 2020). In its finding on the records issue, the court found that The military judge applied the wrong legal standard in conducting his analysis. In his Conclusions of Law, he wrote that Appellant failed to demonstrate "a reasonable probability that the records contain information otherwise unavailable to the defense, and that the information sought is vital to the defense theory of the case." This standard "conflate[s] the constitutionally required standard envisioned in Mil. R. Evid. 412 [pertaining to the admission of constitutionally required evidence] with Mil. R. Evid. 513 [pertaining to the disclosure or in camera review of constitutionally required privileged materials]" which we have cautioned against. Because the military judge applied the wrong legal standard, we find he abused his discretion and turn to whether this materially prejudiced Appellant's substantial rights. Id. at 880-81. At CAAF in July 2021, the court discusses what's in the record. The record before us contains conflicting information about whether E.B. was experiencing psychotic agitation when she was hospitalized shortly after her May 2017 outcry against Appellant. On the one hand, the record indicates that E.B. was diagnosed with PTSD and major depressive disorder without psychotic features. On the other hand, the medical records indicate that E.B. was prescribed Thorazine for psychotic agitation. Because of this conflicting evidence, there is a crucial dispute between the parties about whether the medical records indicate that E.B.'s physician diagnosed E.B. with psychotic agitation and authorized attending medical personnel to administer Thorazine when needed, or that E.B.'s physician was merely indicating in the charts that medical personnel were authorized to administer Thorazine if needed in the event E.B. subsequently displayed symptoms of psychotic agitation. United States v. Jacinto, 81 M.J. 350, 354 (C.A.A.F. 2021). The record was returned to NMCCA for further review. NMCCA appears to have taken some action including issuance of an Order. (The Navy website Court Filings & Records does not list Jacinto. A note to the site tells us This section provides public access to filings and records pertaining to Navy and Marine Corps courts-martial referred on or after December 23, 2020, in accordance with 10 U.S.C. § 940a (Article 140a, Uniform Code of Military Justice). The documents released have been selected and redacted in accordance with the standards and criteria published in 140a, Uniform Code of Military Justice, JAG Instruction 5813.2 - Public Access to Court-Martial Dockets, Filings, and Records Pursuant to Article 140a, UCMJ and the Privacy Act. Filings and court records at the trial court level will be published as soon as practicable after the certification of the record of trial.) A 26 January 2023 Journal entry at CAAF includes an Interlocutory Order.
No. 20-0359/NA. U.S. v. Salvador Jacinto. CCA 201800325. On consideration of Intervenor E.B.'s motion for a permanent stay of the order of the lower court, motion for a hearing, and motion to file under seal Appendix C of the motion for a permanent stay, it is ordered that said motion to stay is hereby dismissed and that the Court's order issued December 22, 2022, temporarily staying the lower court's order is hereby vacated. This Court lacks jurisdiction over this matter because in United States v. Jacinto, 81 M.J. 350, 355 (C.A.A.F. 2021), the Court remanded both the record and the case to the United States Navy-Marine Corps Court of Criminal Appeals and because a writ petition is not before the Court. That said motion for a hearing is denied as moot; and that said motion to file under seal Appendix C of the motion for a permanent stay is denied as moot. Almost five years after conviction, Jacinto's eight year term of confinement has not become final or modified. A very very rough estimate shows his MRD is sometime in 2024. In United States v. St. Jean, _ M.J. ___ (C.A.A.F. 2023), the court decided Whether the military judge erred by excluding evidence under Mil. R. Evid. 412 and by preventing the defense from presenting evidence of participation and consent during the res gestae of the charged sexual assault. The court clarifies that the evidence proferred is likely not res gestae, as I interpret their decision. So the court is not addressing evidence that can be credibly shown to be res gestae. That seems a significant distinction for future application of the case to facts. It is worth clarifying that Appellant is challenging the exclusion of only two pieces of evidence: (A) evidence that Appellant and MC engaged in consensual kissing the day before the alleged sexual assault; and (B) evidence that Appellant was seen with hickey marks the day after the alleged assault. The motions judge excluded the consensual kissing evidence on the basis that it was substantially more prejudicial than probative under M.R.E. 403. The trial judge excluded the hickey evidence because Appellant failed to proffer evidence suggesting Appellant received the hickeys during the alleged assault. I'm not seeing a discussion of how the defense tried to tie the hickeys to the affirmative defense of mistake as to later consent--perhaps they did but that is not reported in the CAAF decision. The ACCA decision is here. The only issues discused by ACCA were admission of HLD, improper TC argument, and insufficiency to one of the charges. The remaining "multiple claims of error" received the standard footnote that the errors were without merit. The defense at trial seemed to be proceeding solely on the theory that the hickeys showed evidence of consent. Ultimately, it looks like the defense waived off on the issue at the time of trial anyway. As explained above in greater detail, during trial the Government objected when the defense attempted to elicit testimony about the hickeys, and the trial judge excused the panel to conduct an Article 39(a), UCMJ, session. Appellant sought to explain that the witness would testify as to having observed hickeys arising from the alleged sexual assault, which would constitute res gestae evidence. The trial judge asked the defense what evidence was before the court that the hickeys were from the night of the offense. Defense counsel ultimately stated that it “could move on from this” and “could possibly readdress it later.” However, defense counsel seemingly never returned to the matter, and the trial judge never affirmatively excluded the evidence. Under this circumstance, there was no ruling by the trial judge to be appealed, and hence nothing for this Court to review. See, e.g., United States v. Welch, 25 M.J. 23, 27 (C.M.A. 1987) (noting the military judge did not make a final ruling excluding evidence). Reading Kafka can at times feel like self-inflicted torture. But who knew he could be prescient about events in modern criminal justice--the H. G. Wells of crime. Simple Justice, a regular read, has uncovered a criminal justice story worthy of Kafka.* (*Scott Greenfield's term.) In the scheme of impossible demands, the sex offender registry concept has more than its share. Much as there may be empathy for certain crimes and criminals, sex offenders remain pariahs as an incident to rape culture and believing women. While there’s empathy for murders, there’s nothing but hatred and damnation for anyone who’s saddled with the “sex offender” characterization, whether deserved or not. So in 2021, Attorney General Merrick Garland decided to add another impossibility to the mix, because who doesn’t hate sex offenders? It appears the federal district judge has somewhat agreed. The Court agrees with Plaintiffs that the practical effect of the Rule, in conjunction with 18 U.S.C. § 2250, has done exactly what is forbidden by the Constitution: “to declare an individual guilty or presumptively guilty of a crime.” Patterson, 432 U.S. at 210. In the Rule, the Government disavows any obligation or burden “to establish that a registration jurisdiction’s procedures would have allowed a sex offender to register or keep the registration current in conformity with SORNA” before prosecuting the individual for failure to do what it acknowledges is impossible. 86 F.R. at 69867. Doing so subverts the procedural safeguards deeply rooted in our history and constitutional framework. The Pacific Legal Foundation has this to say on the case. Represented by PLF free of charge and joined by the Alliance for Constitutional Sex Offense Laws (ACSOL), John is challenging Congress’ unconstitutional delegation of authority to the Attorney General to issue SORNA requirements—a clear violation of the non-delegation doctrine and separation of powers. BTW, I'm told that Simple Justice has some leads out on an unfinished story by Lewis Carroll, initially titled 'Alice in KafkaLand.'
An alert reader noticed we'd not yet posted about (the unpublished opinion in) Goldsmith--the case is of some consequence. May be a CAAF candidate. Appellant's issue #3 is worthy of note. "[T]he military judge erred in considering certain matters in a victim’s unsworn statement[.]" A military judge sitting as a general court-martial convicted Appellant, in accordance with his pleas and pursuant to a plea agreement, of three specifications of willfully disobeying a superior commissioned officer, one specification of wrongfully discharging a firearm under circumstances to endanger human life, one specification of communicating a threat, two specifications of assault consummated by a battery, and four specifications of domestic violence in violation of Articles 90, 114, 115, 128, and 128b, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 890, 914, 915, 928, 928b. After the military judge announced Appellant’s sentence, the convening authority withdrew and dismissed one specification of attempted murder in violation of Article 80, UCMJ, 10 U.S.C. § 880, and one specification of domestic violence in violation of Article 128b, UCMJ, as required by the plea agreement. The military judge sentenced Appellant to a dishonorable discharge, confinement for 84 months, reduction to the grade of E-1, and a reprimand. The convening authority approved the sentence in its entirety, but deferred Appellant’s reduction in grade until judgment was entered and waived Appellant’s automatic forfeitures for a period of six months. So what was the problem?
In United States v. Reimers, the Appellant challenges the constitutionality of UCMJ art. 134(3). For the first time on appeal, Appellant argues that Clause 3 of Article 134, UCMJ (“Clause 3”), is unconstitutional as applied to servicemembers because it denies equal protection of the law. Appellant argues that a defendant in civilian federal court enjoys more constitutional rights than does a military accused, such as entitlement to grand jury indictment, jury size, and the requirement of a unanimous jury verdict. Consequently, according to Appellant, the Government’s election of the military forum under Clause 3 deprives him and other servicemembers of equal protection under the law because civilian federal prosecutors declined to prosecute those offenses. Appellant asks this court to set aside and dismiss Specification 2 of Charge VI (making a silencer) and Specification 5 of Charge VI (selling a firearm to a known felon), which were charged under Clause 3. In In reKK, the complaining witness sought a writ because the military judge denied a government requested continuance so she could be available for trial. (The writ of course gets such a continuance.) The court finds no basis to issue a writ. What Petitioner has not identified is any right to have the accused’s courtmartial dates set such that they accommodate either her or her victims’ counsel’s schedule. Instead, Petitioner’s potential absence more directly impacts the ability of the Government to present its case, which is to say that if Petitioner’s live testimony is important to the Government’s case, then it is the Government which would seek relief in order to ensure Petitioner’s presence. In this case, the Government requested a continuance for this very reason. That request was denied, and the Government has not sought relief from our court. Just as Petitioner has no legal ability to force the Government to call her as a witness, Article 6b, UCMJ, does not provide Petitioner with authority to challenge—on the Government’s behalf—the military judge’s substantive ruling on the continuance motion with respect to such matters as her availability. Victims involved in court-martial proceedings do not have the authority to challenge every ruling by a military judge with which they disagree; but they may assert their rights enumerated in Article 6b, UCMJ, in the Manual for Courts-Martial, and under other applicable laws. You may remember the ProPublica litigation (still ongoing) regarding contemporaneous media access to court filings in Mays. In August, NIMJ sent a letter to DoD General Counsel about the lack of transparency in court-martial proceedings. The issue is one of transparency in courts-martial and appeals which Congress has begun to address with UCMJ art. 140a.
Here is some new guidance from the DoD General Counsel. Also the current status report on the ProPublica litigation. As you can see, all the information in the report is publicly available on PACER to anyone with an account. United States v. Grubb, __ M.J. ___ (N-M Ct. Crim. App. 2023) is interesting because the court finds the military judge erred in admitting Mil. R. Evid. 414 evidence and reverses the findings and sentence. An "enlisted" panel had convicted Grubb of two sexual assaults of a child and the MJ sentenced him to four years, RiR, and a DD. Two specifications of sexual assault of a child were preferred against Appellant. These specifications related to victims Ms. Bravo and Ms. Lima. An additional charge also alleged a violation of Article 120b, UCMJ, but related to Ms. Sigma, Appellant’s high school girlfriend. All charges and specifications were alleged to have occurred before 1 January 2019. The evidence suggested that Appellant and Ms. Sigma had sexual relations prior to his enlistment and perhaps at least once while on active duty. The defense objected to the Mil. R. Evid. 414 evidence and argued that the motion to exclude was supported by Kentucky state law and a Naval Criminal Investigation Service interview of Ms. Sigma. Appellant’s position was that Kentucky law did not criminalize his relationship with Ms. Sigma because the age difference between them was within the range protected by Kentucky law and, therefore, the sexual relationship did not amount to an offense. Some takeaways.
1. Is the accused charged with an act of child molestation? 2. Does the proffered evidence show the commission of a crime at the time of the acts. 3. Is the evidence relevant. And of course the evidence must survive the Mil. R. Evid. 403 balancing.
The military judge, in ruling on the defense’s Mil. R. Evid. 414 motion, found the issue of whether sexual relations with Ms. Sigma occurred before or after Appellant enlisted in the Marine Corps to be relevant only as to jurisdiction, noting in his ruling that “…whether or not the uncharged misconduct…occurred before or after the accused’s enlistment…would only resolve the…jurisdictional issue of whether the accused could be tried for his alleged misconduct at a court-martial.” We disagree. The military judge’s bundling of events relating to Ms. Sigma under a general concept of “sexual assault of a child” led to legal errors in his Mil. R. Evid. 414 and Mil. R. Evid. 403 analysis.
Turning to the post-enlistment sex, the court says in part The Supreme Court found that a trial court did not need to make a finding by a preponderance of the evidence that the acts occurred in order to admit such evidence. Instead, this type of evidence should be admitted if there is sufficient evidence such that the jury could conclude, based on a preponderance of the evidence, that the defendant committed the similar act. Put differently, the trial court only needs to assess whether there is enough evidence for a reasonable jury to reach the conclusion under a preponderance standard. The court finds the MJ's balancing was erroneous and prejudicial. See United States v. Kerr, 51 M.J. 401, 405 (C.A.A.F. 1991) for the four factors to be examined for the presence or absence of material prejudice.
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