In in re Kawai, a pro se petition, On 29 January 2022, Petitioner requested this court grant him extraordinary relief in what he styled as a “Motion for Compassionate Release and Reduction in Sentence,” pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), and the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018). This court received, by mail, Petitioner’s request on 2 March 2022, and docketed his petition on 11 March 2022; the Court did not order briefs by the Government or Petitioner in response. We conclude we do not have jurisdiction to adjudicate Petitioner’s request and deny the petition. The petitioner was convicted in 2001 of various offenses related to his killing of another Airman. He is now at the U.S.P., Atwater, CA. On 15 April 2021, Petitioner requested that the Federal Bureau of Prisons (BOP) make a motion on his behalf for a sentence reduction pursuant to the “extraordinary or compelling circumstances element codified in 18 U.S.C. § 3582(c)(1)(A)(i).” Petitioner argued he was a good candidate for compassionate release based on (1) the coronavirus disease 2019 (COVID-19) pandemic; (2) his age at the time his crimes were committed; (3) his lengthy term of imprisonment; (4) his rehabilitation efforts; and (5) his belief that he was not a public safety risk. On 25 May 2021, the BOP denied his request, stating that “[r]eleasing [Petitioner] prior to the completion of [his] sentence would greatly minimize the severity of the offense” and after considering the above factors, it “determined that [his] release would pose a danger to the safety of others or the community.” n.3. As a collateral impact of courts-martial being ad hoc tribunals there is a problem. Petitioner’s request for compassionate release under these particular statutes is a case of first impression for this court. However, while Petitioner did not style his request as a writ of habeas corpus, we will treat his petition as analogous to such in order to resolve the question of whether we have jurisdiction. The problem for Petitioner is the review of a motion for compassionate release is jurisdictional. “A motion to file for compassionate release can only be brought before the sentencing judge.” Ferguson v. United States, No. 1:22-cv10542, 2022 U.S. Dist. LEXIS 50986, at *2 (E.D. Mich. 21 Mar. 2022). Yet, “[g]eneral courts-martial are ad hoc proceedings which dissolve after the purpose for which they were convened has been resolved.” Witham v. United States, 355 F.3d. 501, 505 (6th Cir. 2004). Because Petitioner’s court was dissolved after his case, and because his case is final under Article 76, UCMJ, there is no sentencing court within the military service courts in which Petitioner may bring a motion under 18 U.S.C. § 3582(c)(1)(A)(i). Query: If Congress created standing military trial courts, coulld it avoid a problem for future 'Kawai's?' However, Congress has charged federal district courts with exercising jurisdiction over habeas corpus petitioners who are imprisoned as a result of court-martial convictions. See Burns v. Wilson, 346 U.S. 137, 139 (1953); Chapman, 75 M.J. at 601; see also Gilliam v. Bureau of Prisons, No. 99-1222, 2000 U.S. App. LEXIS 3684, at *3 (8th Cir. 10 Mar. 2000) (unpub. op.). Federal district court is also the proper venue for Petitioner’s motion. See Owens, 2020 U.S. Dist. LEXIS 61460, at *2. Cheers.
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In United States v. Jackson, an "enlisted" panel convicted Appellant of four A&B on his spouse, three assaults on an intimate partner, and two failures to obey firearm registration regulations, for which he was sentenced to three years, RiR, a BCD, and a reprimand. On appeal, his issues included, (1) The assault & battery by grabbing KM’s neck and torso with his arms, as charged in Specification 2 of Charge II, is legally and factually insufficient. (2) The failure to obey a lawful general regulation are legally and factually insufficient because the regulation at issue was not properly published and cannot qualify as a general regulation. (3) TC improperly cross-examined Appellant by referring to Appellant’s attendance at a domestic violence treatment program and by asking him whether the mechanism of injury was consistent with the opinion of an expert witness called by the Government. (4) in a related claim, DC were constitutionally ineffective for failing to timely object to trial counsel’s improper cross-examination of Appellant. (5) The MJ failed to instruct the panel that a guilty verdict must be unanimous was not harmless beyond a reasonable doubt. (6) TC’s sentencing argument was improper because it faulted Appellant for failing to apologize, it appealed to what the “audience” would think, and it asked the members to consider the “trauma” inflicted upon a nonvictim. (7) The MJ erred by instructing the members in sentencing that they will not draw any adverse inference from the fact that Appellant elected to make a statement that was not under oath after the military judge specifically asked the Defense whether it wanted this instruction and the Defense replied it did not. (8) The CA erred by failing to take complete action on the sentence. (9) The CA's reprimand improperly commented on Appellant’s defense at trial and rights against self-incrimination, thereby rendering the reprimand inappropriately severe and in violation of Appellant’s rights under the Fifth and Sixth Amendments6 and Article 37, UCMJ, 10 U.S.C. § 837. (10) Untimely post-trial processing. On the XE and IAC, the court finds, Appellant forfeited claims that trial counsel’s questioning of Appellant was improper by failing to object at trial and that Appellant has not met his burden to demonstrate plain error. The court likewise finds Appellant has failed to show that trial defense counsel were constitutionally deficient by failing to object to trial counsel’s questions put to Appellant on cross-examination. The opinion reads as if the defense opened the door. The defense had proffered a violation of Mil. R. Evid. 404(b). We are not persuaded that Mil. R. Evid. 404(b)(1) is the correct rule to decide this matter. Instead, we look to Mil. R. Evid. 404(a)(2)(A), which governs situations where an accused offers evidence of his character. We also look to the law of impeachment by contradiction. See, e.g., United States v. Sojfer, 47 M.J. 425, 427 (C.A.A.F. 1998). This method of impeachment “involves showing the tribunal the contrary of a witnesses’ asserted fact, so as to raise an inference of a general defective trustworthiness.” United States v. Banker, 15 M.J. 207, 210 (C.M.A. 1983) (first citing 3A John H. Wigmore, Evidence § 1000 (Chadbourne rev. 1970); and then citing Charles T. McCormick, McCormick’s Handbook of the Law of Evidence § 47 (E. Cleary 2d ed. 1972)). On the question of the TC's arguments, I have a question. Is there ever a case when it is in the best interest of the accused that he not make any statement in sentencing? There is at least one, but it's unrelated to the facts of this case. On the CA's reprimand, how should we interpret this part of the reprimand in the context of this case? You have been made aware countless times over the course of your career that domestic violence is both abhorrent and illegal. The fact that you strangled two women you supposedly loved is so cowardly and reprehensible that I struggle to find words powerful enough for a rebuke. This is made even more difficult because you physically assaulted your loved ones just steps away from your child! Given the tearful statements these women made during your sentencing hearing, it is clear that the damage you inflicted upon them is irreparable. That you had the audacity to downplay their obvious physical and emotional harm is not only repugnant, it demonstrates that you feel neither shame nor regret over your actions. Accordingly, you are hereby reprimanded! In United States v. Pietr Lewis, the court agreed that it was error to admit a company grade UCMJ art. 15 punishment in sentencing, over defense objection. The 15 was from a prior duty station when he was a PFC. It appears Army Regulation 27-10 para. 3-37b(1) (their JAGMAN) required destruction of the 15 once he PCS'd. However, the TC relied on the 15 being maintained in a Military Justice Online database for up to two years, IAW 27-10 para. 3-37h. Appellant pled guilty to involuntary manslaughter and was sentenced to 42-months, RiR, and a DD. On 11 June 2020, appellant and a group of fellow soldiers went out to a few bars to socialize. Appellant, being under 21, was one of the designated drivers. By the end of the evening, only appellant and the victim remained at the bar. Despite being under the legal drinking age of 21, and a designated driver, appellant consumed "about five to seven drinks" that evening. The court having found error, found prejudice and reassessed the sentence to 36-months, RiR. and a DD.
In Tate, the court reverses the Army Court. During the first day of Appellant’s sentencing hearing, the court’s recording device failed, resulting in there being no verbatim transcript for most of the day’s proceedings. Although the Rules for Courts-Martial (R.C.M. or Rules) generally require the record of trial to “include a verbatim transcript of all sessions except sessions closed for deliberations” in serious cases—and impose consequences when that requirement cannot be satisfied—until 2019 the Rules did not authorize any remedial actions that a court could perform to cure a nonverbatim transcript. R.C.M. 1103(b)(2)(B), (f) (2016 ed.). 1 In the absence of any guidance from the Rules, military courts have long authorized three potential solutions when court recording devices fail: (1) declaring a mistrial; (2) reconstructing the record of trial; and (3) starting anew. In this case, the military judge stated that he was going to start Appellant’s sentencing hearing anew, but the record indicates that he neither started anew nor performed one of the other two judicially approved remedies. No. 22-0122/AF. U.S. v. Katelyn L. Day. CCA 39962. 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: WHETHER ATTEMPTED CONSPIRACY, "A CREATURE UNKNOWN TO FEDERAL LAW," IS A VIABLE OFFENSE UNDER THE UCMJ. The AFCCA unpublished opinion is here. The Appellant pled guilty to attempted possession of fentanyl, attempted conspiracy to commit premeditated murder, two solicitations to commit murder, an addtional attempted conspiracy to commit murder, for which she was sentenced to ten years, RiR, and a DD. The issues before AFCCA were,
Generally, the crimes originated from the Appellant's unhappiness with her husband and money troubles--which an insurance policy payment may have reconciled. Apparently, a drug overdose was to be the means. Also in November 2019, Appellant talked to a co-worker, JJ, about her issues with TD. According to the stipulation of fact, Appellant told JJ something to the effect of, “I need my husband to go away.” Unsure of Appellant’s context, JJ responded, “Huh?” Appellant then essentially stated, “I will give you $50,000[.00], half of the insurance money, to kill him.” JJ responded, “I’m not going to kill your husband. Get someone else to do that.” Appellant told JJ she had contacted previous boyfriends to ask them to kill TD, but they told her they would not do it. JJ told Appellant, “There is no perfect crime. Don’t you watch reality TV crime shows? You are going to get caught[.]” United States v. Mader (2). (S.J. Stephens writes for himself and C.J. Monahan and J. Deerwester.) Appellant was tried and sentenced by an “enlisted” panel and was originally sentenced to 190 days, TF, RiR, and a BCD. This case involves hazing and assault committed against junior Marines. It is now before us a second time. In 2020, we found the evidence for one of Appellant’s specifications for hazing to be factually insufficient and set it aside and dismissed it with prejudice. But we affirmed a conviction for hazing for Appellant calling a junior Marine a derogatory racial name along with affirming the remaining four specifications of assault consummated by battery for punching the same junior Marine in the stomach and for burning three other junior Marines with a cigarette. We affirmed the burning specifications owing to our belief that the junior Marines could not have legally consented to such an action. United States v. Mader, 79 M.J. 803 (N-M. Ct. Crim. App. 202o) (1). United States v. Mader, 81 M.J. 105 (C.A.A.F. 2021). The issues again before the NMCCA were that the burning specification was insufficient because the Appellant had a reasonable belief that the victim consented, and the use of a derogatory racial slur was insufficient because the victim “did not feel abused, humiliated, oppressed, or demeaned.” The burning incident was preceded with a bit of drinking. (Interesting that this Marine sergeant wasn’t also prosecuted for fraternization with PFCs and L/Cpls under the circumstances.) “The conversation turned to the problems with the PTA exercise and morale in the communications platoon. Appellant brought up that he and others were “burned” with a cigarette when he joined the platoon as a way of bonding. With this, Appellant took his cigarette and burned the chest of both PFC Bravo and LCpl Echo and LCpl Delta’s shoulder. None of the junior Marines manifested any physical or verbal signs of lack of consent. The socializing continued for some time into the evening without incident.” The next day, when Appellant “asked LCpl Echo about his burn, he responded, “I wouldn’t worry about it.” None of the junior Marines reported the incident.” An uninvolved L/Cpl hearing about the incident reported it. At some point, Appellant was put in PTC. He later received Allen credit for six months of PTC. See United States v. Allen, 17 M.J. 126 (C.M.A. 1984). In Mader (1), the NMCCA reassessment affirmed the sentence without change. (S.J. Stephens wrote for himself and Js. Tang and Lawrence.) The NMCCA finds the burning specification insufficient and dismisses it. That leaves the racial slur and a punching specification affirmed.
If I'm reading this correctly, the final approved sentence is a two pay-grade reduction. If so, there's some money coming back, is there not? Cheers, Phil CaveUnited States v. Daionte Scott. A military judge convicted the Appellant of two aggravated assaults on a child and sentenced him to 21 months, RiR, a DD, and a reprimand. Appellant’s issue is sentence appropriateness. Appellant contends that his sentence is inappropriately severe in light of the mitigating evidence that he presented regarding his own father’s absence while he was child. Specifically, Appellant argues that his father’s absence left him with “a permanent scar” that caused him to engage in inappropriate behavior when distressed. Additionally, Appellant contends that he did not seek mental health treatment due to the culture in the military of not wanting to appear weak. We are not persuaded by Appellant’s arguments and find that no relief is warranted. United States v. Jasan Williams.
An “enlisted” panel convicted him of digital penetration while the victim was asleep and he was sentenced to 18 months, RiR, and a DD. His assignments of error are related to the findings. (1) Appellant was acquitted when the panel initially announced he was not guilty of the essential intent element for both specifications of the Charge. (2) The military judge erred after the members initially announced findings by providing the members a new findings worksheet with suggested language that would result in a conviction and instructing them to return to the deliberation room and then re-announce findings. (3) The military judge improperly impeached the original findings announced by the members. On issues, one and two, while “finding ambiguity in the original announcement followed by proper instruction to clarify the ambiguity, [they are] render[ed] moot." The court finds no error with the remaining AOE. Interestingly, the military judge used a “new” findings worksheet for the members to clarify their findings and to create a useful record for appellate review. Slip op. at 7. See, United States v. Reyes-Lesmes, Slip op. at 5 n. 4. Bottom line, “the first announcement of findings did not amount to an acquittal [and were ambiguous, and], merely contained an error in the announcement, which was corrected in the second announcement. Christopher Daniel Carrier, The Possibility of Special Verdicts by Court-Martial Panels, 83 Mont. L. Rev. 1 (2022).
"This article posits that a court-martial panel, unlike the jury in a civilian criminal trial, could be required by Congress to return a special verdict rather than a general verdict. The peer jury and the court-martial panel are now superficially very similar in function, but they differ in origin and authority such that legal and historical arguments about the powers of the jury do not necessarily apply to the court-martial panel." |
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