Did you know that state law--yes state law--can be relevant when interpreting substantive UCMJ provisions? "Examination of the committee reports discloses that both regarded three sources as relevant to determination of the scope of a punitive article of the Uniform Code. These sources are: (1) The general federal criminal law; (2) the definition of the offense in the State of Maryland; and, (3) the definition provided by the “Manual.” ... Although not part of the general federal penal law, the criminal law of the District of Columbia is a common and long-used source for definition of misconduct proscribed as a military offense." United States v. Harris, 8 M.J. 52, 56 (C.M.A. 1979). The reason for this is that if one is seeking Congressional intent, analogies from the Congressionally-written DC Code are relevant, and the DC Code is at times interpreted in light of Maryland. "As noted earlier, those congressional reports refer to the law of the State of Maryland as a source for definition of various acts prohibited by the Uniform Code. It might seem strange to one unfamiliar with the special relationship between the law of that state and the law of the District of Columbia, that the Committees on Armed Services should single out the criminal law of a particular state as a source for congressional intention as to military offenses. The explanation is that, by direction of Congress, questions of common-law arising *57 in the District of Columbia are resolved with special consideration to the law of the State of Maryland. 49 D.C.Code s 301 (1973); White v. Parnell, 130 U.S.App.D.C. 148, 397 F.2d 709, 710 n. 1 (D.C.Cir. 1968). We construe the reference in the reports to the law of Maryland as identifying, consistent with established military practice, the law of the District of Columbia as a source for congressional intention in regard to punitive articles of the Uniform Code." Id. Query: does any of this matter given that textualism is now the law of statutory interpretation? Brenner FissellEditor Eugene Volokh, reports on United States v. Yung. The court concludes that the federal "cyberstalking" statute covers only speech intended to "put the victim in fear of death or bodily injury" or to "distress the victim by threatening, intimidating, or the like." Essentially the court finds that the statute, as construed by the prosecution, is overbroad and can offend the First Amendment. The statute requires
The court discusses how application of the "result" can be interpreted to narrow the statute and avoid First Amendment concerns. Volokh also links to several articles on how this type of statute can be overbroad and veer into First Amendment problems.
Steele presents an interesting issue of new claims on or after remand. In addition to this initial plenary appellate review under Article 66, a non trivial number of appeals return to this court following either a remand to the trial level for a rehearing on findings and/ or sentence (like this case), or following remand from the Court of Appeals for the Armed Forces [CAAF] for additional proceedings in our court. See, e.g., United States v. Sanchez, ARMY 20140735, 2019 CCA LEXIS 164 (Army Ct. Crim. App. 10 Apr. 2019) (summ. disp). When cases come back in these ways, sometimes appellants press new claims of error that they did not raise in their first appeal. In some instances, we have reached the merits of the new claim or claims. See, e.g., United States v. Hemmingsen, ARMY 20180611, 2021 CCA LEXIS 180, at *3 (Army Ct. Crim. App. 15 Apr. 2021) (mem. op.) (concluding that considering the new issues was within the scope of the CAAF's remand order). In other appeals we have held that the newly-raised claim is not properly before us. See, e.g., United States v. Navarette, ARMY 20160786, 2022 CCA LEXIS 255, at *11 (Army Ct. Crim. App. 29 Apr. 2022) (citing United States v. Smith, 41 M.J. 385,386 (C.A.A.F. 1995), for the proposition that "[w]hile [an] appellant is entitled to plenary review under Article 66 ... he is only entitled to one such review."). Basically, if you can't clear the test above, the issue is procedurally forfeited. The court does not that the newly alleged constitutional error was, to say the least, novel. Cheers, Phil Cave.United States v. Burnett. Officer members convicted Appellant of one sexual assault, for which they sentenced him to two months, TF, RiR, and a DD. Appellant raises 14 issues for our consideration on appeal: (1) whether the evidence is legally and factually sufficient to support his conviction; (2) whether the military judge erred by failing to give a proper instruction on the affirmative defense of involuntary intoxication; (3) whether trial defense counsel were ineffective by failing to research or request a proper instruction on involuntary intoxication; (4) whether the military judge erred by failing to give a proper limiting instruction upon the admission of human lie detector evidence; (5) whether trial defense counsel were ineffective by failing to appreciate the prejudicial effect of human lie detector evidence and failing to request a limiting instruction; (6) whether the military judge erred by failing to give a timely and proper limiting instruction regarding evidence of Appellant’s prior waiver of an administrative discharge board; (7) whether trial defense counsel were ineffective by failing to appreciate the prejudicial effect of evidence of Appellant’s discharge board waiver and failing to request a limiting instruction; (8) whether the military judge abused his discretion by admitting testimonial hearsay; (9) whether a witness immunity letter issued by the convening authority amounted to unlawful command influence; (10) whether trial counsel engaged in prosecutorial misconduct during argument on findings; (11) whether trial defense counsel were ineffective by failing to object to trial counsel’s argument; (12) whether Appellant was wrongfully denied credit against his sentence for nonjudicial punishment he previously received for the same offense for which he was convicted; (13) whether Appellant is entitled to relief for cumulative error; and (14) whether the military judge abused his discretion by limiting the time allotted for closing argument. Opinion in Dial. However, we are ultimately more persuaded by the second basis which contends Congress determined that unanimous verdicts would unduly impede the efficiency of military operations. That is to say, deliberations towards unanimous verdicts are likely to take longer to achieve, thereby keeping participants from their military duties for reater periods of time. See Revision of the Articles of War, United States Senate, Subcommittee on Military Affairs, Statement of Brig. Gen. Enoch H. Crowder, United States Army, Judge Advocate General of the Army (1916), p. 27 [1916 Hearing]. Most importantly, when a unanimous verdict cannot be reached and a hung jury results, the command is faced with the prospect of either engineering a retrial or returning a service member with unresolved charges to its ranks. A verified commenter says, The fear of a hung jury, as an impediment to military efficiency, is wrong. The issue is a unanimous verdict to convict, not a unanimous verdict to acquit. The court footnotes the issue and says they are unaware of any other court in the country where a single vote for acquittal results in an acquittal. Perhaps, but there is no other court that convicts on a non-unanimous vote. The equal protection analysis is a different ballgame for the accused who are convicted under Art. 134, Clause 3 offenses. That is not the issue here but it's the issue in other pending cases. The military efficiency rationale won't hold up in these cases. Cheers, Phil Cave.United States v. Deontre White. An MJ convicted the appellant of two abusive sexual contacts and two communications of indecent langauge, for which he was sentenced to four months, RiR, a BCD, and a reprimand. One of his issues asked whether the indecent language conviction was factually and legally sufficient. No, says a majority of the panel. In reading the facts I was reminded of a few lines from "Pink Floyd, The Wall." Teacher: What have we here, laddie? Mysterious scribblings? A secret code? No! Poems, no less! Poems, everybody! The language and context are quite suggestive. Appellant then asked SSgt CR if she liked poetry and if she would like to hear a poem he had written. SSgt CR said, “sure,” and Appellant began reading. As Appellant read the poem, SSgt CR perceived that it “was very sexually explicit,” so she stopped Appellant and told him, “I’m sorry. I did not realize the contents of this poem.” SSgt CR testified that she thought the poem was about “a sexual encounter that he had with a woman,” but she did not have any impression regarding whether the encounter was portrayed as consensual or not. At Appellant’s court-martial, SSgt CR only recalled two brief excerpts from the poem. The first was, “just stick the tip in,” and the second was, “[m]y hands down her pants touching her c*******.” It would appear the Appellant liked to read his poems at work. TSgt SD did not recall if Appellant asked her to listen to the poem or if her husband, SSgt SD, who worked in the same area, told her to come listen to Appellant read it. TSgt SD testified that she and SSgt SD were there for the reading, as well as her supervisor TSgt M and her co-worker SSgt EG. Before he began reading, Appellant told the group that the poem “could be read from either a female’s perspective or a male’s perspective.” Once Appellant said the word “c*******,” TSgt SD walked away because she felt uncomfortable and “didn’t want to be around that.” TSgt SD did not say how long she listened to the poem, but she described the portion she heard as “quick.” The issue was whether the words and reading was contrary to GoD, for example, When SSgt EG was asked how the reading affected good order and discipline in the unit, she answered, “It’s hard to say.” She explained that while inappropriate, the reading “didn’t bother [her],” but “[i]f you’re making people that you work with uncomfortable and maybe someone doesn’t have tough skin, that could break[ ]down like trust and stuff like that and being able to work and get the mission done.” The court describes the third element of the offense, that it “refers only to acts directly prejudicial to good order and discipline and not to acts which are prejudicial only in a remote or indirect sense.” 2016 MCM, pt. IV, ¶ 60.c.(2)(a). As explained in the Manual for Courts-Martial, “Almost any irregular or improper act on the part of a member of the military service could be regarded as prejudicial in some indirect or remote sense; however, this article does not include these distant effects. It is confined to cases in which the prejudice is reasonably direct and palpable.” Id. The requirement to prove this third element “filters out from punishment language that is colloquial vocabulary and may be routinely used by service members.” United States v. Negron, 60 M.J. 136, 144 (C.A.A.F. 2004). The court went on to say We conclude the findings of guilty for the two indecent-language specifications are neither legally nor factually sufficient. We first note the dearth of evidence in the record establishing what Appellant actually said when he read his poem. C.J. Johnson dissents in part and in the result. I acknowledge the Government was not able to introduce the exact text of the sexually explicit poem Appellant read to several noncommissioned officers (NCOs) in their workplaces in August 2018, and that the four witnesses who testified about Appellant’s indecent language had imperfect memories of the incidents. However, I find the witnesses’ testimony to be generally credible and, importantly, not significantly inconsistent. Taken together, the testimony of Staff Sergeant (SSgt) CR, Technical Sergeant (TSgt) SD, SSgt EG, and SSgt SD demonstrates Appellant’s poem described the perspective of someone pursuing unwanted sexual activity with an unwilling female, including references to touching her b****** and genitalia, and including specific phrases to the effect of “rubbing her c***” and “just stick the tip in.” C.J. Johnson's final words are, The majority asserts they are not willing to “broadly paint any discussion of sexual conduct among adults as indecent language under a theory that someone, somewhere might be aroused by it.” Neither am I. However, the definition of indecency does not require the language to be actually or potentially sexually arousing. I also agree that many things that are inappropriate to say in the workplace are not “indecent.” However, language that is grossly offensive to propriety because of its vulgar nature and violates the standards of the military community is, by definition, indecent. Cheers, Phil CaveIn Brown, the Appellant was convicted, MJA, of disrespect to a petty officer and "convicted" of violating the order against sexual harassment. He was sentenced to restriction for 30 days, RiR to E4, and a reprimand. It appears that the MJ when entering findings "excepted language from the sexual harassment specification that was necessary for guilt, effectively acquitting Appellant of the specification." Appellant asserts the evidence is legally insufficient to support his convictions for disrespect in two ways: (1) Article 91, UCMJ, does not cover disrespect by remote means of communication, such as a text message; and (2) because the Government specifically alleged he was disrespectful in deportment, as opposed to in language, it was required, but failed, to prove that the acts were done “in the presence” of the victims. We disagree and hold that Article 91 is broad enough to encompass disrespectful text messages sent directly to the victim, whether they are disrespectful in language or in deportment. On a second question, the court finds that sending a disresptful text to a petty officer is sufficiently criminal. In doing so they go wayback (without machine) to 1917 to explain what it means for language to be "toward." Similarly, going all the way back to 1917—when the MCM was issued under the authority of the Secretary of War, not the President—it explained: On the acquital, Prior to trial, Appellant challenged the sufficiency of the specification on the basis that it was impossible that Appellant created a hostile work environment at PO3 C.L.’s “A” school because he had no connection to it. During argument on the motion to dismiss the specification, the military judge asked trial defense counsel whether there would be any issue if he simply struck that language. Trial defense counsel responded that would leave an insufficient specification because the language is necessary to allege a violation of the sexual harassment order. The Government did not dispute that an effect on the working environment needed to be alleged and proved. Rather, it argued that the entire Coast Guard was the working environment and that it was therefore possible for Appellant to affect it. The court opines that the military judges denial of the motion was correct because the Order required as an element that ". Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment." But, Following the close of evidence, the military judge reversed course. He found Appellant guilty of the specification except the words, “while she was attending ‘A’ school which created an offensive work environment.” He issued special findings where he now stated that “ACN 085/18 defines sexual harassment as ‘other verbal or physical conduct of a sexual nature . . .’ and ‘encompasses unwelcome display or communication of sexually offensive materials.’” App. Ex. XXVIII at 9 (ellipsis in original). He found that Appellant “was on notice that, as part of the specification, he had sexually harassed the named victim by communicating sexually offensive materials” and that while the Government had proved beyond a reasonable doubt that Appellant sent an unwelcome video, it had not proven that it created an offensive working environment. Id. In short, upon reconsideration, the military judge interpreted ACN 085/18 as not requiring the Government to prove that Appellant’s conduct created an offensive working environment. The court concluded that this course reversal wrong. We conclude that an impact on the workplace, as alleged in the specification, was required to prove a violation of ACN 085/18. By finding Appellant not guilty of that portion of the specification alleging the required workplace impact, the military judge effectively acquitted Appellant of the specification. On sentence reassessment the court finds the 30 days restriction, RiR to E6, and the reprimanc to be appropriate. They also ordered the reprimand be rewritten to be consistent with the affirmed findings. Cheers, Phil Cave.In Dixon, the Appellant was convicted MJA of one housebreaking and one communicating a threat, and he was sentenced to one year, and a BCD, and a reprimand. Note 4 tell us that the Appellant was also was charged with two sexual assaults which were dismissed w/o prejudice prior to arraignment. He was acquitted of an indecent exposure. 1. At first the Appellant pled G to housebreaking and NG to communicating a threat. The MJ was unhappy with the providency of the housebreaking, so everyone took a break. 2. Appellant entered a plea of G to an LIO of unlawful entry. The court notes the MJ never entered a finding on this offense. 3. The Government elected to prosecute both the housebreaking and communicating a threat. The MJ found Appellant guilty of both. Appellant raises five issues on appeal: (1) whether Appellant’s guilty plea is improvident because unlawful entry is not a lesser-included offense (LIO) of housebreaking; (2) whether the evidence is legally and factually sufficient to support Appellant’s conviction for communicating a threat; (3) whether the evidence is legally and factually sufficient to support Appellant’s conviction for housebreaking; (4) whether the recklessness mens rea for communicating a threat under Manual for Courts-Martial, United States (2016 ed.) (2016 MCM) 5 violates the First Amendment of the United States Constitution; 6 and (5) whether Appellant is entitled to sentence relief because he received nonjudicial punishment under Article 15, UCMJ, 10 U.S.C. § 815, for the same offense for which he was sentenced at trial.7 Because we resolve the first three issues in Appellant's favor and set aside the findings and sentence, we do not reach the remaining issues. Communicating a threat required proof BRD of, (1) Appellant communicated certain language to AG expressing a present determination or an intent to wrongfully injure her reputation, presently or in the future, by alerting MTLs to her violation of AETC dormitory rules. (2) the communication was made known to AG or to a third person. (3) the communication was wrongful. (4) under the circumstances, Appellant’s conduct was prejudicial to good order and discipline. A defense is that the "circumstances reveal that the communication was made “in jest or for an innocent or legitimate purpose” so the communication is not wrongful. See Rapert, 75 M.J. at 169." AFCCA observes that, "In United States v. Whitfield, ARMY 20130212, 2015 CCA LEXIS 184 (A. Ct. Crim. App. 14 Apr. 2015) (unpub. op.) (per curiam), rev. denied, 75 M.J. 32 (C.A.A.F. 2015), the appellant threatened to reveal another soldier’s misconduct to her chain of command. The ACCA found "that “appellant’s threat to truthfully reveal [the victim’s] misconduct to the chain of command falls short of the requirement that appellant’s communication be ‘wrongful."" But see, United States v. White, 62 M.J. 639 (N.M. Ct. Crim. App. 2006), rev. denied, 64 M.J. 225 (C.A.A.F. 2006), which AFCCA distinguishes. Accordingly, AFCCA sets aside the communicating a threat conviction. On to housebreaking. The AFCCA sets aside the housebreaking conviction and holds that unlawful entry is not an LIO of housebreaking because unlawful entry requires the GoD element not found in housebreaking. And, citing Coleman that “[T]he terminal element of an Article 134, UCMJ, offense is not inherently included within other elements and is instead a separate and distinct element that the [G]overnment must prove.” United States v. Coleman, 79 M.J. 100, 104 (C.A.A.F. 2019). Appellant was not charged separately with unlawful entry. Relying on United States v. Nealy, 71 M.J. 73 (C.A.A.F. 2012) and United States v. Girouard, 70 M.J. x, 10 (C.A.A.F. x), the AFCCA finds an accused can't be convicted because " due process “does not permit convicting an accused of an offense with which he has not been charged” and ‘“the Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged’” (citation omitted) (quoting Patterson v. New York, 432 U.S. 197, 210 (1977))." Accordingly, the AFCCA sets aside the unlawful entry plea because a court-martial has no jurisdiction to enter findings for an offense not charged. Judge Key concurs in part and in the result. Judge Key notes that the proper charge was extortion. Keep in mind that even though the AFCCA dismissed the charges with prejudice, the question then becomes, has the Appellant been in jeopardy on the extortion, or for that matter the unlawful entry? Thoughts? Also, Judge Key concludes, in my words, that on the facts of this case the discussion about unlawful entry being an LIO is an advisory opinion and he "do[es] not subscribe to the majority's analysis on this point." Cheers, Phil Cave.Adam Lamparello, writing for Appellate Advocacy blog gives some reminders on to increase the persuasive value of your arguments. 1. Keep it simple, talk like a normal human being, and get out of the weeds. 2. Address the court’s questions and concerns. 3. Acknowledge weaknesses in your argument.
4. Be passionate and emotional (when appropriate). It’s important, as an advocate, to show that you care. For example, Camille Vasquez’s cross-examination of Amber Heard demonstrated that Vasquez believed strongly that Heard was lying and that Depp had been defamed. In essence, believing in your argument increases the persuasive value of what you say. 5. Be likable and relatable. |
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
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