In United States v.Flowers, an "enlisted panel" convicted him of three abusive sexual contacts and sentenced him to a BCD. He raises three issues, none of which bring him relief. (1) Appellant’s company commander committed apparent unlawful command influence by stating, “there’s a predator in our midst,” in a meeting called specifically to address recent allegations of sexual assault, and the Government failed to prove beyond a reasonable doubt that the unlawful command influence did not place an intolerable strain upon the public’s perception of the fairness of the military justice system. (2) The MJ abused his discretion in admitting evidence of the charged acts to prove Appellant’s absence of mistake and intent to commit the charged acts under Military Rule of Evidence [Mil. R. Evid.] 404(b). (3) the sentence of a bad-conduct discharge is inappropriately severe. Here, the military judge found that Major Bravo’s comments during the company meeting did not place an intolerable strain on the public perception of the military justice system. We agree. While it is certainly a commander’s prerogative to conduct climate checks and safety surveys in the wake of sexual misconduct allegations, particularly those occurring in the work environment, the use of pejorative terms like “predator” is both ill-advised and strongly discouraged, as it could be viewed as pre-judging an accused whom the law presumes to be innocent until proven guilty. Even where the subject of the allegations is not referred to by name, it is far too probable that the circulation of rumors will make the accused’s name known for commanders to use language that might reasonably be perceived as publicly condemning an accused while he or she is pending investigation or trial for an alleged offense. On the Mil. R. Evid. 404(b) issue, the court found admission for that purpose reasonable when the defense raised the issue of lack of intent and mistake. While we give the military judge’s ruling little deference because he did not articulate his reconsidered Mil. R. Evid. 403 balancing on the record, we find his conclusion under Reynolds’ third prong reasonable. We find the evidence of Appellant’s conduct toward MA3 Madison and MA3 Hotel probative regarding the issues of intent and lack of mistake with respect to his subsequent conduct toward MA3 Mike, particularly in light of the mistake-of-fact instruction pertaining to MA3 Mike that the military judge gave at Defense request. Although the incidents occurred eight months and two years prior, respectively, they involve similar one-on-one conduct by Appellant using his supervisory role to commit repeated, nonconsensual touching of a sexual nature upon isolated, female subordinates despite their protests. As this evidence was already before the members on the charged offenses, it required no additional time to prove at trial, presented no possible distraction to the factfinder, and was the least prejudicial evidence possible under the circumstances. The evidence is also strong, as it is corroborated by Appellant’s admissions that he touched both MA3 Madison and MA3 Hotel on the buttocks because he was attracted to them, and that MA3 Hotel was shocked when he did so. In United States v. Keago, the appellant was convicted by members of attempted sexual two sexual assault, four burglarys, and one obstructing justice. He was sentenced to 25 years, TF, and a dismissal. Counsel raised six errors and four were Grosty. (1) The MJ erred by denying defense counsel’s challenges to three members for actual and implied bias. (2) Appellant’s convictions for sexual assault and burglary involving Midshipman [MIDN] Sonntag, MIDN Morse, and MIDN Metcalf are legally and factually insufficien. (3) Appellant’s sentence is inappropriately severe. (4) The MJ abused his discretion by admitting the testimony under Mil. R. Evid. 404(b). (5) The MJ abused his discretion by denying Appellant’s motion to dismiss based on failure of law enforcement to prevent the loss of potentially useful evidence. (6) Appellant, who is African American, was denied due process when the mostly Caucasian venire resulted in his being tried by a panel comprised of Caucasian and Asian members. The defense had " challenged 14 members of the venire panel for cause. The military judge granted six defense challenges and denied the other eight. Of those eight[.]" Some of the questionable answers include,
As to LCDR Card, the court found, [the almost rape of] LCDR Card’s mother in 1975 was a non-issue in terms of his ability to serve as a panel member. The military judge noted that he observed no emotional reaction in LCDR Card’s recitation of having learned about his mother’s kidnapping. The military judge further found that LCDR Card’s involvement as a Fleet mentor in the SAPR program was more about finding a way to be involved with students than it was related to the specific content of the program, and that LCDR Card had never been involved in the sexual assault prevention aspects of the program. The military judge also found that LCDR Card affirmatively stated that he would not hold Appellant’s silence against him if he chose not to testify, and that LCDR Card’s statement that something must have happened in order for the court-martial to take place was a literal answer and did not indicate he believed something illegal must have happened.
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In United States v. Monge, the appellant was convicted by an "enlisted" panel of indecent visual recording and distribution of an indecent visual recording and he was sentenced to 60 days HLWC and a DD. Appellant raises several issues, none of which get him relief.
(1) The evidence was legally and factually sufficient to support his convictions for sexual assault and assault consummated by a battery; and (2) Appellant was deprived of his right to a unanimous verdict. United States v. Bunton. Enlisted members convicted Appellant of "sexual assault and abusive sexual contact, conspiracy to commit extortion [a different victim], F2go, and false official statement. Sentenced to two years, TF, RiR, and a DD. But, he will get a retrial on the sexual assault and abusive sexual contact and the sentence. The NMCCA identifies the following issues. (1) MJ error denying civilian defense counsel’s continuance requests. NMCCA finds waiver when the Appellant voluntarily released the CDC. He might of had a decent argument otherwise. There were two COVID related delays totaling three months. The TC objected to a CDC delay because of witness issues and the VLC objected to this first (two month) delay from either party. CDC offered as part of the justification, "two emails between the military judge and the parties. In those emails, the military judge criticized filings by the military defense counsel and suggested that they acted “negligently,” cautioned them that they were officers of the court and not to compromise [their] license to practice law,” and suggested that counsel were “either unaware of [R.C.M.] 707 or planting poison pills in the record.”" (2) the taint of systematic exclusion of junior enlisted Marines as potential panel members was not alleviated when two Corporals junior in date of rank to accused were added to the list of potential members. (3) Ramos v. Louisiana. (4) & (5) MJ (and NMCCA) error in failing to release medical and Physical Evaluation Board records. (6) MJ error denying the testimony of a forensic psychiatrist as a witness. This error gets Appellant a new trial on some charges and sentence. (7) IAC by failing to try and suppress statements to NCIS. NMCCA finds appropriate reasons offered by DC for not raising the motion. They thought the value added of the statements outweighed any devaluation--the statements supported their theme and theory and the appellant would not need to testify. (8) Conviction for false official statement--factual insufficiency? Yup, good enough. * MJ error denying the testimony of a forensic psychiatrist as a witness. The MJ erred because, While we take no issue with a finding that most adults in the United States have a general understanding that alcohol can impair one’s memory, we sharply disagree with the military judge’s additional finding of fact that it could be assumed the members who would sit in judgment of Appellant would, based on either their personal drinking experience or what they had seen in movies, on television, or on social media, have sufficient knowledge in a case such as this, where the complex phenomenon of an alcohol-induced blackout was it issue, to properly evaluate the ultimate issue. Indeed, the military judge’s finding of fact that the members would possess sufficient lay knowledge so as to render expert testimony unnecessary was made in the face of a directly contrary—and unrebutted—assertion by Dr. Sierra[.] The error is not HBRD (Government argued a different standard).
Cheers.United States v. Craven, __ M.J. ___ )N-M Ct. Crim. App. 2022), is an interesting case about the informant privilege. It's a government appeal, which NMCCA grants, but . . . There are two informant related Rules of Evidence. R.C.M. 506 R.C.M. 507 Which one would you choose with the following facts (and don't read after the break yet).
In May 2020, after a night of heavy drinking at then MASN Mike’s apartment, MASN Hotel allegedly touched MA3 Sierra on the buttocks while she was asleep. Appellee and MASN Mike were the only two witnesses to this act, for which MASN Hotel pleaded guilty at special court-martial to assault consummated by a battery. At his court-martial, MASN Hotel and the Government stipulated as fact that Appellee “told [MASN Hotel] that he would take a shot of alcohol if [MASN Hotel] touched the lower back and hips area” of MA3 Sierra. What Rule applies--Mil. R. 506 or 507? [W]e find no abuse of discretion in the military judge’s order that confirmation or denial of Mr. Mike’s CI status and any related privileged materials in NCIS possession be submitted for an in camera discoverability review, as such information reasonably tends to affect the credibility of Mr. Mike. Like our sister court, we find that when it “fail[s] to provide the Defense with information about the CI status of [its material witnesses], the Government essentially preclude[s] the defense from impeaching their credibility and motivation for being involved in the situation involving [Appellee] and his court-martial.” Since it is the witness’s affiliation with one party over the other that gives rise to such issues of credibility and bias, we find that the impeachment value of a witness’s CI status is not limited to the witness’s service as a CI in the particular case at hand. No. 22-0170/AF. U.S. v. William C. McAlhaney. CCA 39979. 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:
DID THE LOWER COURT ERR BY APPLYING PLAIN ERROR REVIEW IN CONSIDERING A QUESTION OF SENTENCE APPROPRIATENESS, TO WIT: WHETHER THE WORDING OF THE REPRIMAND RENDERED APPELLANT'S SENTENCE INAPPROPRIATELY SEVERE? Nino C. Monea, The Reprieve Power: May the Uniform Code of Military Justice Limit Executive Clemency?, 123 W. VA. L. REV. 547 (2020).
"Article 57 of the Uniform Code of Military Justice states the President "may commute, remit, or suspend the sentence, or any part thereof, as the President sees fit. That part of the sentence providing for death may not be suspended." This seemingly contradicts Article 2 of the United States Constitution, which states that the President "shall have the power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment." This Article looks at whether the power to "reprieve" offenses includes the power to suspend sentences, including military sentences, and concludes that it does. The historical definition of "reprieve," historical practice of presidents, state court interpretations of similar language, and legislative history of Article 57 all indicate that the President may suspend sentences and Congress may not stop him. For practical reasons, challenging Article 57 would be difficult, but a court would likely declare it unconstitutional if a challenge was ever brought." The Canadian military justice docket shows the following upcoming trial.
September 12, 2022 at Borden, Ontario R. v. Kenderesi L. (Officer Cadet) (General Court Martial) Charge 1: S. 81(b) NDA, endeavoured to persuade another person to join in a mutiny. Charge 2 (alternate to charge 3): S. 92 NDA, behaved in a scandalous manner unbecoming an officer. Charge 3 (alternate to charge 2): S. 129 NDA, conduct to the prejudice of good order and discipline. Those following the case will remember this is a military cadet who refused the COVID vaccine and was allegedly counseling others to do the same. We are advised that there are only two types of "punishment:" Dismissal from Her Majesty's Service or Dismissal with Disgrace. United States v. Armandariz, __ M.J. ___ (N-M Ct. Crim. App. 2022). "Enlisted" members convicted him of various sex offenses, adultery, orders violation, and adultery, and they sentenced him to 18 months and a DD. "He was charged with an orders violation for misusing his government office for sexual activity [Charge I]; two specifications of sexual assault by bodily harm for digitally penetrating Sgt November’s vagina and for penetrating her vagina with his penis [Charge II, Specifications 1 and 2]; one specification of abusive sexual contact for grabbing Sgt November’s breast [Charge II, Specification 3]; fraternization [Additional Charge I]; and adultery [Additional Charge II]." (Note, he was sentenced in 2017 so he will have served confinement to his MRD, minus any other good time credits.) This sexual assault case is before us a second time. In 2019, we found legal error when Appellant’s squadron executive officer [XO] approved a search authorization. The Judge Advocate General of the Navy certified that issue to the Court of Appeals for the Armed Forces [CAAF], where our decision was reversed and the case was remanded. CAAF affirmed one of Appellant’s findings of guilt for violating a general order by fraternizing—a finding we affirmed—because the search produced no evidence pertinent to that specification. We now review Appellant’s findings of guilt of two specifications for violating a lawful general order, one specification of sexual assault by bodily harm, one specification of abusive sexual contact by bodily harm, and one specification of adultery in violation of Articles 92, 120, and 134, Uniform Code of Military Justice [UCMJ]. Appellant raises 11 assignments of error.
1. Factual and legal insufficiency. 2. One of the three presiding military judges had a conflict of interest. 3. MJ abuse of discretion denying a motion to suppress evidence seized from his body, phones, vehicle, and wall locker. 4. IAC. 5. MJ abused discretion in granting the Government’s Mil. R. Evid. 412 motion. 6. MJ erred letting the TC argue a “false exculpatory” statement. 7. MJ abused discretion when he declined to give the members an adverse inference instruction for the complaining witness’ refusal to provide her cell phone or for the Government’s decision not to obtain a search authorization for her phone. 8. TC's improper argument by speculating that a member’s question indicated the member already believed Appellant was guilty. 9. MJ abused his discretion in denying Appellant’s M.R.E. 412 motion as untimely. 10. Ramos v. Louisiana. 11. Cumulative errors. |
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