In United States v. Novelli, the appellant pled guilty to various drug related offenses: cocaine, marijuana, psilocybin, Valium, Xanax, and steroids. He was sentenced to 600 days plus a BCD for which he got 236 days Allen credit. He raised four issues.
1. Error in the EoJ--corrected in the court's decretal paragraph. 2. Unreasonable multiplication. 3. Improper TC sentencing argument. (A common issue in AF cases as to both findings and sentence.) 4. Inappropriate sentence. The decretal paragraph remands the case for corrections of the EoJ.
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22 Journal of Appellate Practice and Process (No. 2). July 18, 2022.
In United States v. Pyron, the court begins, Appellee’s case is before us for a second time. In 2019, a general court-martial consisting of members with enlisted representation convicted Appellee, contrary to his pleas, of attempted rape of a child, rape of a child, and sexual abuse of a child. In 2021, this Court reversed Appellee’s convictions and authorized a retrial owing to implied bias of one of the members.2 In July 2021, the convening authority re-referred the same charges and specifications against Appellee to a general court-martial. The Government now appeals the following issue: Did the military judge abuse his discretion by excluding Appellee’s testimony during his first court-martial due to Government actions in the member selection process where: (a) this Court found the trial counsel’s recitation of voir dire answers was “an honest mistake,” and (b) under Harrison v. United States and United States v. Murray, suppression is only justified where illegal government action directly induced the accused’s testimony? We find that the military judge abused his discretion and reverse his decision. The court begins its discussion with Harrison v. United States, 392 U.S. 218 (1968) from which comes the principal that an accused's trial testimony is generally admissible at a retrial. This general principle is not a bright-line rule, however. Where a defendant’s prior testimony was induced after the prosecution put into evidence confessions or admissions that were illegally obtained, the testimony becomes the fruit of the proverbial poisonous tree and cannot be used against the accused at later proceedings. So, from Harrison, we have two situations where there was a constitutional issue at play. What then of nonconstitutional issues, such as error in the "jury" selection process.
A final note, Even if reliable evidence were presented that Appellee testified as a result of the inclusion of LT Alpha on the member panel, the military judge abused his discretion in applying this Court’s decision in Murray to exclude Appellee’s prior testimony. It appears that MJ mistakes may not be a reason to exclude an accused's prior testimony. What if the MJ erred in permitting Mil. R. Evid. 413 evidence and the accused decided to testify? (Assume that the accused did not invoke his Fifth Amendment right to silence on cross-examination as to the Mil. R. Evid. 413 allegations.) It is, of course, difficult to unravel the many considerations that might have led the petitioner to take the witness stand at his former trial. Harrison, 392 U.S. at 224.
"The most serious actions focused on the leadership of the warship and the fire response team. The ship's former commanding officer, Capt. Gregory Scott Thoroman, and former executive officer, Capt. Michael Ray, received punitive letters of reprimand and forfeiture of pay. The former command master chief, Jose Hernandez, received a punitive letter of reprimand.
The Consolidated Disposition Authority, which decides upon punishments, was led by Admiral Samuel Paparo, the commander of US Pacific Fleet. Vice Admiral Richard Brown, the retired officer who was the commander of US Pacific Fleet at the time, received a Secretarial Letter of Censure from Navy Secretary Carlos Del Toro." More here. It appears the only criminal case will be that of Seaman Apprentice Ryan Mays. “Warner was not court-martialed only because the Army did not believe that he could be convicted of the equivalent of first-degree rape, which is the only charge not barred by the statute of limitations,” according to an email to Amber from Friedman after he met the Army’s attorneys working on the case."
Read more here. "The Army has suspended a three-star general's contract and placed him under investigation after he posted a tweet that appeared to mock first lady Jill Biden, USA Today reports."
No. 22-0090/AF. U.S. v. Andrew P. Witt. CCA 36785. 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 issue:
DURING SENTENCING PROCEEDINGS THE TRIAL COUNSEL URGED THE PANEL MEMBERS TO CONSIDER HOW THE SENTENCE THEY IMPOSED WOULD REFLECT ON THEM PERSONALLY AND PROFESSIONALLY, AND SUGGESTED THAT THE MEMBERS WOULD BE RESPONSIBLE FOR ANY HARM APPELLANT COMMITTED IN THE FUTURE. DID THE TRIAL COUNSEL'S SENTENCING ARGUMENT CONSTITUTE PROSECUTORIAL MISCONDUCT THAT WARRANTS RELIEF? Witt at AFCCA. "The Army notified Flynn in a May 2 letter, obtained by The Washington Post, that it would seek to recoup $38,557.06 from him, zeroing in on money and in-kind compensation he received for a gala dinner celebrating the 10th anniversary of RT, the Kremlin-run news agency....
Craig R. Schmauder, an Army lawyer, wrote in the letter that Flynn’s failure “to obtain the approvals of the Secretary of the Army and the Secretary of State resulted in a violation of the Emoluments Clause,” a provision of the U.S. Constitution that prohibits retired military personnel from receiving money from foreign governments without prior authorization. “When there is a finding that a military retiree has violated the Emoluments Clause, the United States Government may pursue a debt collection,” Schmauder wrote to Flynn. Schmauder added that the Army was requesting that the Defense Financing Accounting Service “seek recoupment from you of a debt in the amount of $38,557.06.” The money will be held from his retired pay. More here. |
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
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