Gere v. CO, NAVCONBRIG Charleston. Gere is currently confined in the Navy Consolidated Brig in Charleston, South Carolina, brings this application for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Respondent moved for summary judgment. Petitioner presents two grounds for relief: (1) he was deprived of due process of law when the military judge denied defense counsel's request to compel production of SN's cell phone and (2) defense counsel was ineffective for not asserting prosecutorial misconduct based on the prosecution's failure to secure SN's cell phone. Respondent asserts the discovery issues were extensively litigated throughout Petitioner's military proceedings and thus are not properly reviewable here. Respondent also contends Petitioner did not argue his defense counsel was ineffective before the military courts and thus defaulted that claim. The magistrate judge hearing the case recommend granting the dismissal motion. In 2016, Petitioner's girlfriend's teenage daughter, SN, accused Petitioner of sexually assaulting her. In January 2019, Petitioner was found guilty by a military judge, sitting as a general court-martial, of attempted sexual assault of a child, sexual abuse of a child, and sexual assault of a child. Petitioner has exhausted his military appeals and now presents habeas claims concerning a discovery dispute over messages allegedly contained on SN's cell phone and ineffective assistance of counsel. In 2020, AFCCA affirmed Gere's findings and sentence. CAAF denied review 81 M.J. 168 (C.A.A.F. 2021). The denial of review forclosed Gere from a direct appeal to the U.S. Supreme Court. A direct appeal available to every person, civilian or military and detainee at Gitmo, convicted in their courts. At AFCCA Gere had raised the following issues.
(1) Whether the military judge erred by denying a defense motion to compel production of a cellular phone belonging to the victim, SN. (2) Legal and factual sufficiency. (3) whether the military judge erred by admitting expert testimony at sentencing regarding the long-term effects of child sexual abuse in general. (4) Post trial error. (5) Post trial error. The discovery issues arise from a common problem in many cases involving smartphones and various applications such as Snapchat. Remember, MCIOs almost never ask a victim for permission to do a DFE on their smartphone. And of course prosecutors never use their power to obtain a search warrant. Often times they will rely on the victim's word or cherry-picked screenshots. This failure of course can impact the defense months later when charges are referred--in Gere, about 36 months later. In Salinas, a writ on behalf of a complaining witness, the court denies the writ. On 25 May 2022, pursuant to Article 6b(e), UCMJ, Petitioner filed a Petition for Extraordinary Relief in the Nature of a Writ of Mandamus to Quash Order to Produce Victim for Testimony at Mil. R. Evid. 412 Hearing and Application For a Stay of Proceedings. Petitioner seeks a Writ of Mandamus vacating the trial court’s ruling that Petitioner’s testimony is necessary and relevant to the Article 39(a) session scheduled for 1 June 2022, vacating the trial court’s order for Petitioner’s production and testimony at the Article 39(a) session, and denying the Accused’s motion for a hearing under Mil. R. Evid. 412. The court finds that testimony in a motion is not equivalent to a deposition.
The MJ and VLC are trusted to follow the law. There is no clear and indisputable right to the writ. Could the court have also said that nothing in Article 6b gives an alleged victim the right to testify or not to testify, they are after all a witness. The only right to participate or not is UCMJ art. 6b(a)(4)(B), 10 U.S.C. § 806b(a)(4)(B) which provides a right to be reasonably heard--during presentencing. An "enlisted" panel convicted Martinez of sexual assault and an attempted sexual assault. He was sentenced to six years, TF, RiR, and a DD. Of 11 issues, the motion for the MJ's recusal is the most interesting. Appellant argues the military judge was biased against the lead trial defense counsel, and the military judge should have therefore recused himself from Appellant’s court-martial. Appellant argues as a second basis for relief that the military judge should have recused himself based upon the appearance of bias on the military judge’s part. As a remedy, Appellant asks us to set aside the findings and sentence. In support of his argument, Appellant cites to a number of events occurring both before and during his court-martial; we only address the most significant events raised. It appears that in the motion for a mistrial, after findings, The Defense advanced two grounds: (1) inadequate notice with respect to the specification alleging an attempted sexual assault on Ms. ES (and relatedly, a perceived incongruity between a conviction for that offense and an acquittal for abusive sexual contact arising out of the same conduct), discussed in greater detail in Section II.D., infra; and (2) disparate treatment of the parties by the military judge. With respect to the second ground, trial defense counsel asserted there were “countless examples” of such disparate treatment, but they specifically referred to three instances they believed supported their argument: (1) discovery related to opening and closing slides; (2) objections to the Defense’s opening statement regarding the military judge’s Mil. R. Evid. 412 ruling; and (3) selective enforcement of the military judge’s scheduling order. At one point, the court opines, While many aspects of the interaction between the military judge and trial defense counsel may be subject to valid criticism, we conclude the record does not support a conclusion the military judge abused his discretion in not recusing himself. There are numerous events during the trial worth considering for the future. But, The military judge was also quick to lecture the Defense about following his rulings, asking rhetorically at one point, “Do people not care what my rulings are if they’re going to sort of go around them?” This question, of course, came in the middle of a longer critique of the Defense which had been initially spurred by the military judge’s erroneous recollection of his own written Mil. R. Evid. 412 ruling. Rather than admit his error, the military judge suggested the ruling was just “inartfully drafted,” sua sponte reconsidered the ruling “to provide a little bit more clarity,” and sustained two of the Government’s objections to the Defense’s opening statement—even though that opening statement fell within the bounds of the military judge’s original ruling. But, Government counsel, on the other hand, largely escaped unscathed. For example, when trial counsel suggested trial defense counsel had engaged in “bad lawyering”—a comment flowing from trial counsel’s incorrect recollection of the military judge’s written Mil. R. Evid. 412 ruling—the military judge charitably referred to the comment as “a momentary lapse of hyperbole, an emotion based on a contentious issue.” When trial counsel defied the military judge’s ruling prohibiting evidence of Ms. ES’s prior allegations of sexual assault, the military judge not only allowed Ms. ES’s arguably false answer to stand, but he simply told trial counsel to “tread lightly” and “be more careful than ever.” There also did not appear to be a reaction to a comment in a Government motion along the lines of, "General gripes about the Government’s charging in this case may be therapeutic to express in a motion, but they do not give rise to the requested remedy."
Ultimately the Appellant got some relief with one charge set-aside without prejudice (based on an instructional error) and the sentence was set-aside. The CAAF in this case holds that, "[W]hen a military judge declares a mistrial, the government may appeal that ruling to a service court of criminal appeals under Article 62(a)(1)(A), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 862(a)(1)(A) (2018). Appellant argued three reasons why a mistrial ruling was not appealable under Article 62.
CAAF: None AFCCA: June 22, 2022, United States v. Covitz. Issue: Whether the military judge erred by denying challenges for cause against multiple panel members. Briefs not available. ACCA: None. NMCCA: None.
United States v. Wilkinson. Appellant was convicted, by a military judge, in absentia of indecent viewing, attempted indecent viewing, two sexual abuses of a child, and indecent exposure. The MJ sentenced him to three years and a dismissal. ACCA had to decide whether the Appellant was voluntarily absent and burdens of proof. The court was satisfied trial could proceed in the Appellant's absence. On a different note. It is not clear from the opinion when, if ever, the Appellant elected MJA. We know that forum is one of the four or five decisions only the accused can make. The R.C.M. 804 in effect says the accused "shall" be present and that the trial is his "place of duty." Once arraigned, trial may proceed if the accused's absence is voluntary. R.C.M. 903 regulates forum selection. The Discussion to Rule 903(a) says that "If an accused makes no forum selection, the accused will be tried by a court-martial composed of a military judge and members, as specified in the convening order." This is what we old folks called the default. But see, as did ACCA, United States v. Chandler, 80 M.J. 425, 429, n.2 (C.A.A.F. 2021) ("The provisions of a discussion section to the R.C.M. are not binding but instead serve as guidance."). R.C.M. 903(b) requires a written election or one made on the record. See also UCMJ art. 16(b)(3). R.C.M. 903(c)(2) requires affirmative action by the MJ to ensure an election for MJA is voluntary. United States v. Amos, 26 M.J. 806 (A.C.M.R. June 24, 1988); United States v. Jungbluth, 48 M.J. 953 (N-M. Ct. Crim. App. 1998) are of some help with my question. I acknowledge it's entirely possible that the Appellant had elected forum on the record before he went UA to some other place. It would seem proper then, if that's the case for a MJA trial to proceed. Cf. United States v. Stiner, 30 M.J. 860, 861 (N.M.C.M.R. 1990). Does anyone know when and how forum was selected in this case? If no written request or oral request on the record, perhaps United States v. Turner, 45 M.J. 531 (N-M. Ct. Crim. App. 1996) might be helpful in finding that the trial could not proceed MJA. See also, United States v. Mozie, No. 20130065, 2016 CCA LEXIS 273 *1 n.1 (A. Ct. Crim. App. Apr. 28, 2016). In United States v. Sharp, 38 M.J. 33 (C.M.A. 1993), cited by ACCA, the accused was tried by members. The court concludes that, In sum, the question before us is not whether we think it is more likely that appellant perished in the mountains or voluntarily absented himself from his trial. Rather, we can only provide relief if we find that the military judge's ruling constitutes an abuse of discretion. See Gore, 60 M.J. at 187 ("[T]he abuse of discretion standard of review recognizes that a judge has a range of choices and will not be reversed so long as the decision remains within that range.") (citation omitted). As such, based on our review of the entire record and for all of the reasons stated above, we conclude that the military judge did not abuse his discretion in: (1) finding that the government met its burden to prove by a No. 22-0123/AF. U.S. v. Travis D. Pullings. CCA 39948. 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. IN ADDITION TO PRISON OFFICIALS, CAN THE DECISIONS OF MILITARY PERSONNEL SATISFY THE "DELIBERATE INDIFFERENCE" ASPECT OF THE CRUEL AND UNUSUAL PUNISHMENT TEST WHEN THEY REPEATEDLY SEND MILITARY INMATES TO A LOCAL CIVILIAN CONFINEMENT CENTER WITH A HISTORY OF INHUMANE LIVING CONDITIONS FOR INMATES? II. ADDITIONALLY OR ALTERNATIVELY, DID APPELLANT SUFFER CRUEL AND UNUSUAL PUNISHMENT FOR 247 DAYS AND NIGHTS AT LOWNDES COUNTY JAIL? Pullings at AFCCA here. Another case in a history of issues with civilian pretrial and posttrial confinement. Most, but not all, seem to arise in AF cases. Kawai is a recently decided one.
A very broad search in Lexis with the search terms "civilian" and "conditions" and ""confinement conditions"" brought up a list of 237 cases. Looking at only the first 50, 42 were AF cases going back to September 2019. Of these, 11 were about military confinement. The local facilities include Otero County, NM (note, the Army uses this facility), whichever civilian jail services Vandenberg AFB, CA, Sutter County Jail, CA, Lowndes County Jail, GA, Hillsborough County Jail, FL, "Bossier Max," SC, Taylor County Jail, TX, the local facility that services McConnell AFB, KS, the local facility that services Tinker AFB, OK, Tom Green County Jail, TX, the facility that services Dover AB, DE, Comal County Jail, TX, Elmore County Jail, ID, Appellant was ordered into pretrial confinement, which included both a civilian confinement facility and a military confinement facility. While in the civilian facility, Appellant wore the standard striped jail uniform. When Appellant returned to Ellsworth AFB for appointments other than those with defense counsel, she wore the striped jail uniform. Appellant's diet during pretrial confinement caused weight gain while in the civilian facility and subsequent weight loss while in the military facility. United States v. Hepfl, No. ACM 39829 (f rev), 2021 CCA LEXIS 491, at *3-4 (A.F. Ct. Crim. App. Sep. 24, 2021). A UCMJ art. 13 motion was waived as part of her PTA. (Was ADC aware the client was being brought to on-base appointments in prison clothes?) In United States v. Damm, the appellant argued his confinement conditions violated Article 58, UCMJ, "because he was treated differently from civilian confinees at [the confinement facility]." The court held "[a]s with alleged violations of the Eighth Amendment and Article 55, prisoners must first exhaust administrative remedies before invoking judicial intervention to remedy alleged violations of Article 58(a)." Because the court determined appellant "failed to exhaust his administrative remedies," the court did not consider his Article 58, UCMJ claims. . . . Here, appellant does not argue he exhausted his administrative remedies, but instead speculates such exhaustion "would have been futile in this case." Query: What steps are taken by the military or civilian facility to ensure the detainee is aware of their complaint processes? United States v. Grillo, No. ARMY 20210309, 2022 CCA LEXIS 295, at *4-5 (A. Ct. Crim. App. May 18, 2022). The message here is to trial defense counsel, I think. The burden is on you to do the following post-trial. 1. Advise and encourage using the facility complaint system and also the military system at the same time. 2. Raise the issue with the SJA. 3. Put the issue in the 1106. 4. Reread United States v. Willman, 81 M.J. 355 (C.A.A.F. 2021) for the consequences of first raising the issue on appeal. United States v. Simmons. His third appearance brings him some sentence relief. An officer panel originally convicted of four sexual assaults of a child, extortion, and producing CP. He was sentenced to 12 years, TF, RiR, and a DD in 2017. On his first look at AFCCA, the case was returned for posttrial errors. On reappearance, the AFCCA affirmed 11 years, 11 months, and 20 days confinement because of posttrial delay. CAAF set aside the finding of guilty for extortion in United States v. Simmons, __ M.J. ___, 2022 CAAF LEXIS 205 (C.A.A.F. 2022). Appellant timely appealed the decision of the CCA and this Court granted review of the following issue: The defense vigorously objected to the Government’s motion, arguing that “during the government’s case-in-chief, they failed to elicit any testimony that the extortion occurred during [the] time period [originally charged] . . . . And so the amendment here, this major change here, is made to cure a defect in their presentation of the evidence.” The defense further stated: “Now our particular concern here, one, is of a notice type nature, particularly given that the government is moving to amend the charge sheet, . . . basically [just] before instructions [begin].” The civilian defense counsel also argued that “the dumping [of] 250 pages of text messages on me the night before trial, . . . hardly constitutes notice,” and that he might have cross-examined the complaining witness differently if the Government had acted in a timely manner. In addition, the defense noted that by enlarging the charged time frame, the Government was now alleging that Appellant extorted CL when she was still a minor, and although age is not an element of the offense, her young age made the alleged offense “absolutely more serious” and could result in “an enhanced sentence.” For these reasons, civilian defense counsel concluded, the Government’s proposed amendment to the charge sheet was “highly prejudicial.” Simmons, Slip op. at 4. The AFCCA then reassessed the sentence and affirmed confinement of nine years, 11 months, and 20 days.
Tabor pled guilty to sexually abusing a child, five specifications of indecent language, and one specification of indecent conduct, in violation of Articles 120b and 134, Uniform Code of Military Justice [UCMJ], for communicating indecent language to Ms. Charles and encouraging her to masturbate while her ten-year-old daughter, Miss Bravo, was lying in bed next to her. He was sentenced to 7.5 years, TF, RiR, and a DD. The PTA called for all but 60 months to be suspended. While standing duty in his squadron’s ready room, Appellant engaged in a sexually explicit text message conversation with Ms. Charles, a former high school classmate of his. During their exchange, Ms. Charles disclosed to Appellant that her ten-year-old daughter, Miss Bravo, was in the bed with her, and sent Appellant a photo of Miss Bravo, who was lying down, facing away from Ms. Charles. She told Appellant she intended to masturbate once her daughter fell asleep. Appellant responded that he was sexually aroused by the thought of Ms. Charles masturbating in the bed with her daughter and encouraged Ms. Charles to “do it anyway,” even though Miss Bravo was not yet asleep. The assigned errors in Tabor were,
In Schmidt, the CAAF issues were,
I. Whether the phrase "in the presence of" used to define the term 'lewd act' in Article 120b(h)(5)(D) requires the child to be aware of the lewd act or merely that the accused be aware of the child's presence. II. Whether Appellant affirmatively waived any objection to the military judge's instructions and the failure to instruct on the affirmative defense of mistake of fact. III. Whether, having assumed deficient performance by counsel, the lower court erred in finding no prejudice. United States v. Schmidt, 82 M.J. 68, 71-72 (C.A.A.F. 2022). The court found waiver. Yet, Judge Sparks agreed with NMCCA on the statutory interpretation. But C.J. Ohlson and J. Maggs and J. Hardy (also still on the court) disagreed with the statutory interpretation. So this is not a situation where the CAAF actually decided the issue. Good chance of a CAAF grant? |
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