United States v. Ballard, 79 M.J. 675 (A. F. Ct. Crim. App. 2019) pet. denied 79 M.J. 420 (C.A.A.F. 2020). Ballard pled guilty to (1) one specification of rape of a child, six specifications of aggravated sexual contact with a child, and one specification of indecent liberties with a child, in violation of Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920;1 (2) one specification of rape of a child and three specifications of sexual abuse of a child, in violation of Article 120b, UCMJ, 10 U.S.C. § 920b;2 and (3) three specifications of sodomy of a child, in violation of Article 125, UCMJ, 10 U.S.C. § 925.3 The military judge sentenced Appellant to a dishonorable discharge, confinement for 50 years and one day, forfeiture of all pay and allowances, and reduction to the grade of E-1. The convening authority approved only 40 years of confinement in accordance with the PTA and approved the remainder of the adjudged sentence. On appeal, he argued a lack of authority to recall him for prosecution from retirement and therefore lack of jurisdiction. AFCCA denied relief and CAAF denied his petition. Ballard then filed a pro se petition for habeas corpus against the Secretary of the Air Force in the U. S. District Court for the District of Columbia. In dismissing the petition the district court relied on three principles: a military prisoner (or one otherwise entitled to habeas relief) must file under 28 U.S.C. § 2241 not 2255, the respondent is the person in charge of the confinement facility, and venue is where the prison facility is located. Ballard must now file in the federal district court in Kansas; where he is likely to lose based on the 10th Circuit’s case law regarding “full and fair consideration” of his legal issues in the military courts. Interestingly, the court did write on the merits of the claim and considered the Circuit’s decision in Larrabee. A federal court may grant habeas corpus relief where a prisoner demonstrates that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c). However, a federal court's review of court-martial proceedings is limited. Thomas v. U.S. Disciplinary Barracks, 625 F.3d 667, 670 (10th Cir. 2010). The Supreme Court has explained that "[m]ilitary law, like state law, is a jurisprudence which exists separate from the law which governs in our federal judicial establishment," and "Congress has taken great care both to define the rights of those subject to military law, and provide a complete system of review within the military system to secure those rights." Nixon v. Ledwith, 635 F. App'x 560, 563 (10th Cir. Jan. 6, 2016) (unpublished) (quoting Burns v. Wilson, 346 U.S. 137, 140, 73 S. Ct. 1045, 97 L. Ed. 1508 (1953)). "[W]hen a military decision has dealt fully and fairly with an allegation raised in [a habeas] application, it is not open to a federal civil court to grant the writ simply to re-evaluate the evidence." Thomas, 625 F.2d at 670 (quoting Burns, 346 U.S. at 142). Instead, it is the limited function of the civil courts "to determine whether the military have given fair consideration to each of the petitioner's claims." Id. (citing Burns, 346 U.S. at 145). Drinkert v. Johnston, No. 22-3045-JWL, 2022 U.S. Dist. LEXIS 152522, at *9 (D. Kan. Aug. 24, 2022). For those who wonder about the many times an appellate court has said that 'it considered the issues but find they lack merit--that is all' or words to that effect. "An issue has been given full and fair consideration when it has been briefed and argued at the military court, even if that court summarily disposed of the issue." Williams v. Ledwith, 671 F. App'x 719, 721 (10th Cir. 2016) (unpublished) (citing Roberts, 321 F.3d at 997; Watson v. McCotter, 782 F.2d 143, 145 (10th Cir. 1986)); see also Squire, 674 F. App'x at 826 ("Even a military court's summary disposition of a claim can show adequate consideration of the issues involved."); Burke v. Nelson, 684 F. App'x 676, 680 (10th Cir. 2017) (unpublished) (citing Watson, 782 F.2d at 145) ("[W]hen it comes to court-martial rulings on constitutional claims, our review is sharply limited: so long as the claim was briefed and argued before a military court, we must deny the claim."). Id, at *11 (emphasis added).
"The U.S. Marine Corps has charged a former drill instructor with negligent homicide and other offenses in the death of a recruit during a grueling training exercise last year, a Marines spokesman said."
Read the story here. This shows the breadth of a negligent homicide statute. For those of us who follow Prof. Berman's Sentencing Law & Policy blog, he had this to say. The question in the title of this post is inspired by today's national holiday, Veterans Day. Based on the latest data from Bureau of Justice Statistics, from this March 2021 report "Survey of Prison Inmates, 2016: Veterans in Prison," veterans make up over 5% of the federal prison population (and nearly 8% of state prison populations). Moreover, as an important new initiative from the Council for Criminal Justice has highlighted, roughly "one third of veterans report having been arrested and booked into jail at least once in their lives, compared to fewer than one fifth of non-veterans." In other words, at both the federal and state level, there are surely no shortage of justice-involved veterans who could and should be a focus of concern and attention on this important day and for whom clemency consideration would be justified. No. 22-0234/AR. U.S. v. Byunggu Kim. CCA 20200689. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:
I. WHETHER A GUILTY PLEA TO AN OFFENSE WAIVES A CHALLENGE THAT THE CONDUCT IS NOT A COGNIZABLE OFFENSE UNDER THE UNIFORM CODE OF MILITARY JUSTICE. II. WHETHER, IN THIS CASE, INTERNET SEARCH QUERIES FOR "DRUGGED SLEEP" AND "RAPE SLEEP" ARE INDECENT CONDUCT; IN THE ALTERNATIVE, WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY FAILING TO ABIDE BY THE HEIGHTENED PLEA INQUIRY REQUIREMENTS UNDER UNITED STATES v. HARTMAN, 69 M.J. 467 (C.A.A.F. 2011). No. 22-0277/NA. U.S. v. Adam M. Pyron. CCA 201900296R. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862 (2018), it is ordered that said petition is hereby granted on the following issues:
I. WHETHER THE LOWER COURT EXCEEDED THE SCOPE OF REVIEW UNDER ARTICLE 62, UCMJ, AND DEPARTED FROM THIS COURT'S PRECEDENT SET IN UNITED STATES v. VANGELISTI BY ATTACHING MATERIALS TO THE RECORD THAT WERE NOT PROFFERED AT TRIAL AND USING THEM TO APPELLANT'S DETRIMENT. II. WHETHER THE MILITARY JUDGE CORRECTLY CONCLUDED APPELLANT'S TESTIMONY FROM HIS FIRST COURT-MARTIAL WAS INADMISSIBLE WHERE THE GOVERNMENT FAILED TO PROVE APPELLANT TESTIFIED FOR REASONS UNRELATED TO HIS BIASED MEMBERS PANEL. The Supplement to the Petition is here, and the Government Answer here. Oral argument is scheduled for December 7, 2022. There are several new grants of interest. No. 22-0065/NA. U.S. v. Willie C. Jeter. CCA 201700248. On further consideration of the petition for grant of review, the briefs filed by the parties, and oral argument, it is ordered that said petition is granted on the following specified issues: I. IN UNITED STATES v. CRAWFORD, 15 C.M.A. 31, 35 C.M.R. 3 (1964), THIS COURT HELD THAT IN THE COURSE OF PANEL SELECTION A RACE CONSCIOUS PROCESS IS PERMISSIBLE FOR THE PURPOSE OF INCLUSION. HOW DOES THE CRAWFORD DECISION AFFECT THE ANALYSIS OF THIS CASE UNDER AVERY v. GEORGIA, 345 U.S. 559 (1953)? II. IN LIGHT OF APPELLANT'S STATEMENT AT ORAL ARGUMENT THAT RACE IS AN IMPROPER CONSIDERATION IN DETAILING PANEL MEMBEMEMBERS, SHOULD COURT OVERRULE UNITED STATES v. CRAWFORD, 15 C.M.A. 31, 35 C.M.R. 3 (1964)? (Emphasis added.) The case was tried in 2017, NMCCA affirmed in 2019, CAAF summarily vacated the opinion in 2020 with a remand for review in light of United States v. Bess. In Octobter 2021, NMCCA We find that the convening authority did not violate Appellant’s equal protection or due process rights, and affirm on this AOE. We further adopt our holdings on AOEs II-XI, consistent with this Court’s prior published opinion in Jeter I and once again conclude the findings and sentence are correct in law and fact and that no error materially prejudiced Appellant’s substantial rights. No. 22-0237/AF. U.S. v. Caleb A.C. Smith. CCA 40013. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issues: I. WHETHER THE MILITARY JUDGE ERRED IN ADMITTING TEXT MESSAGES AND TESTIMONY AS AN EXCITED UTTERANCE RELATED TO THE ALLEGED VICTIM'S BELIEF THAT SHE WAS RAPED WHERE SHE HAD NO MEMORY OF THE EVENTS IN QUESTION. II. WHETHER THE EVIDENCE WAS LEGALLY INSUFFICIENT BECAUSE THE ALLEGED VICTIM WAS CAPABLE OF CONSENTING AND WHERE, EVEN IF SHE WAS NOT CAPABLE OF CONSENTING, APPELLANT REASONABLY BELIEVED THAT SHE DID CONSENT. No. 22-0259/AR. U.S. v. Erick Vargas. CCA 20220168. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862 (2018), it is ordered that said petition is granted on the following issue: WHETHER THE ARMY COURT ERRED IN ITS ABUSE-OF-DISCRETION ANALYSIS BY REQUIRING THE MILITARY JUDGE TO CRAFT THE LEAST-DRASTIC REMEDY TO CURE THE DISCOVERY VIOLATION. Another late discovery case. On Friday, March 4, 2022, prior to the start of appellee's contested court martial, the government re-interviewed SPC. During this interview, SPC stated appellee called her a "beauty queen" and kissed her on the forehead 3-4 times" prior to the sexual assault. This was new information, and the government failed to disclose it to the defense. ACCA held that the military judge erred in dismissing with prejudice because a mistrial under R.C.M. 915(a) was an appropriate and a least drastic remedy. No. 22-0249/CG. U.S. v. Fernando M. Brown. CCA 001-69-21. On consideration of the petition for grant of review of the decision of the United States Coast Guard Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue: ARE APPELLANT'S CONVICTIONS UNDER ARTICLE 91 LEGALLY INSUFFICENT WHERE THERE IS AN ABSENCE OF EVIDENCE THAT THE CHARGED CONDUCT OCCURRED IN THE SIGHT, HEARING, OR PRESENCE OF THE ALLEGED VICTIMS WHILE THEY WERE IN THE EXECUTION OF THEIR OFFICE? The Chief’s Mess of USCGC Polar Star had a text message group comprising all the cutter’s senior enlisted personnel to coordinate, maintain camaraderie while in drydock, and pass work-related information. Appellant sent several offensive texts to this group, including the target of each. In one, he sent a photograph of a fellow chief petty officer, adding a crudelydrawn penis and scrotum to his hard hat. In another, he belittled the sexual orientation of a fellow chief petty officer by sending the group a high school yearbook photograph of her, adding the caption, “Voted most likely to steal your bitch.” Pros. Ex. 5 at 1. Finally, he ridiculed a senior chief who was the senior member of the Mess by sending a picture of a scantily-clad man with a large Dallas Cowboys image on his back, adding the caption, “Found out why [the senior chief] missed chiefs call.” Pros. Ex. 9 at 1. The preferral of charges is an important step in movement toward a court-martial. Most of the time there isn't a reason to challenge the preferral. However, history has shown, and United States v. Floyd , __ M.J. ___ (N-M. Ct. Crim. App. 2022), further shows that it is sometimes worth the effort to peer behind the wizard's curtain, talk to the accuser, and compare the "evidence" the accuser reviewed. There also are some lessons for trial counsel. After referral of charges and shortly before trial was set to begin, the trial defense counsel for Appellee moved to dismiss two of the five specifications alleging sexual abuse of a child for defective preferral and discovery violations. Trial defense counsel argued that, at the time of preferral, Charge II, Specification 2 alleged “excessively inflammatory” language that was not supported by evidence. Trial defense counsel further argued that, at the time of preferral, Charge II, Specification 4 was not supported by the evidence reviewed by the accuser. Finally, the trial defense counsel argued that after preferral and during the months leading up to trial, the Government violated its discovery obligations. The Government appeal raises two broad issues, (1) the MJ violated the rules by issuing written findings and conclusions after receiving the notice of appeal, and (2) abuse of discretion in the rulings.
The Court disagrees that it cannot consider the MJ's written ruling, favorably citing United States v. Catano, 75 M.J. 513 (A. F. Ct. Crim. App. 2015). As the third of three points, the Court adds ![]()
The accused was convicted by a military judge sitting alone of several offenses. United States v. Rudometkin, No. 22-0105, 2022 WL 3364139 (C.A.A.F. Aug. 15, 2022). After learning that the military judge had been accused of conduct similar to at least one of the offenses of which he had been convicted, the accused filed a motion for a mistrial, alleging that the judge should have disqualified himself because his impartiality might reasonably be questioned. See R.C.M. 902(a).
A different military judge was detailed to conduct a hearing. He assumed, without deciding, that the trial judge should have disqualified himself and, employing the Supreme Court’s three-factor test from Liljeberg v. Health Servs. Acquisition Corp, 486 U.S. 847, 862 (1988), determined Appellant was not entitled to relief. Rudometkin, at *3. In Liljeberg, the Supreme Court noted that the federal disqualification statute, 28 U.S.C. § 455, on which R.C.M. 902 is based, “neither prescribes nor prohibits any particular remedy for a violation of that duty.” 486 U.S. 847, 862 (1988). The Court recognized that Federal Rule of Civil Procedure (Fed. R. Civ. P.) 60(b)(6), “grants federal courts broad authority to relieve a party from a final judgment ‘upon such terms as are just.’” Id. Action under that Rule “should only be applied in extraordinary circumstances.” Id. at 863–64 (cleaned up). In determining whether the judge’s error in refusing to disqualify was an extraordinary circumstance worthy of vacatur, the Supreme Court listed three factors for an appellate court to consider: (1) the risk of injustice to the parties; (2) the risk of injustice in other cases; and (3) “the risk of undermining the public’s confidence in the judicial process. We must continuously bear in mind that, to perform its high function in the best way justice must satisfy the appearance of justice.” Id. at 864. Although the cases reviewed by the CAAF are criminal, rather than civil, it has applied the Supreme Court’s three-factor Liljeberg test in military judicial disqualification cases since at least 2001. See, e.g., United States v. Butcher, 56 M.J. 87, 91 (C.A.A.F. 2001). The CAAF’s explanation of the first factor has transformed from a balancing of equities—the risk of injustice to the parties—to placing a burden on the accused to establish that he personally suffered an injustice from the judge’s failure to disqualify. See United States v. Martinez, 70 M.J. 154, 159 (C.A.A.F. 2011) (the first Liljeberg factor weighed against the appellant because “the record does not support nor has Martinez identified any specific injustice that he personally suffered under the circumstances”). In a more recent case, the CAAF substituted the Martinez finding on the first factor for the factor itself, claiming that the first Liljeberg factor “examines if there is ‘any specific injustice that [the accused] personally suffered.’” United States v. Uribe, 80 M.J. 442, 449 (C.A.A.F. 2021) (quoting Martinez, 70 M.J. at 159). In Rudometkin, the certified issue before the CAAF was whether the military judge erred by failing to grant a mistrial because the trial judge failed to disqualify himself. Rudometkin, at *4. NIMJ filed an amicus brief pursuant to C.A.A.F. R. 26: an interested non-party amicus curiae brief that provides “relevant matter” not already brought to the attention of the Court of Appeals for the Armed Forces may be “of considerable help to the Court. An amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.” CAAF R. 26(b). NIMJ argued, inter alia, the Court should not, as it had in the past, apply the Supreme Court’s Liljeberg test for determining prejudice, because that test had been formulated for civil, not criminal, cases. NIMJ insisted the Court was instead required to apply Article 59(a), UCMJ: “[a] finding or sentence … may not be held incorrect on the ground of an error unless the error materially prejudice[d] the substantial rights of the accused.” In other words, the burden was on the Government to show the error was harmless. The CAAF held that the military judge did not abuse his discretion in denying the accused’s motion for mistrial. It acknowledged and explained the amicus brief but declined to address NIMJ’s arguments because “the parties to the case have not challenged [our precedent].” Id. at *5. The Court cited two cases supporting that proposition: “United States v. Long, 81 M.J. 362, 370 (C.A.A.F. 2021) and FTC v. Phoebe Putney Health Sys., Inc., 568 U.S. 216, 226 n.4 (2013). Of course, there was no amicus curiae challenging the parties’ understanding of the law in Long and, in Phoebe, the amicus was not asking the Supreme Court to apply the law but to recognize an exception to the law and apply it to the case at hand. In Rudometkin, NIMJ was merely asking the CAAF to apply the law mandated by Congress in the UCMJ. And if the judges desired the parties’ inputs, they could have specified that issue and asked the parties to submit briefs. Instead of considering whether the error prejudiced the accused’s substantial rights under the statutory standard, the Court simply applied its precedents without resolving the underlying issue. By acknowledging NIMJ’s amicus brief and explaining its contents, the CAAF appears to be inviting litigation as to the appropriate standard for determining prejudice in judicial disqualification cases: Is prejudice in judicial disqualification cases determined by applying Article 59(a), UCMJ, or the three-factor Liljeberg test. On the other hand, the amicus brief put the issue squarely before the Court and, without even seeking the views of the parties, the CAAF punted—not exactly encouragement for those considering filing amicus briefs. |
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
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