Thursday, April 14: Oral argument in United States v. Dial will be held at the U.S. Army Court of Criminal Appeals courtroom at 9275 Gunston Road, Building 1450, Fort Belvoir, VA, at 10:00 a.m. The courtroom is on the first floor of the building on the side closest to the parking garage. Current COVID protocols apply. The courtroom only has 9 seats for members of the public but there is an overflow room on the 4th floor where the argument will be live-streamed. There is currently no mask requirement. (Case documents here). Amicus brief by NACDL here. Older news
United States v. Anderson, CGCCA, a GP to eight false claims, for which a RiR-E2 and a BCD was imposed. This is a post-trial delay case under the new rules. We apply the conclusion we reached in United States v. Tucker, __ M.J. __ , slip op. at 26 (C.G.Ct.Crim.App. 7 Apr 2022): that Moreno’s use of the convening authority’s action as a terminal benchmark prior to docketing has been superseded by statute and regulation. As in Tucker, there was no presumptively unreasonable delay in this case. Further, even under a full due-process analysis, Appellant was not deprived of due process. The court did however address the unreasonable delay analysis. [W]e apply a presumption of unreasonable delay triggering a full due-process analysis when: (1) the record of trial is not docketed with this Court within a total of 150 days of the completion of trial; or (2) we do not complete appellate review and render a decision within eighteen months of docketing. Tucker, slip op. at 26. In Tucker, the court begins, Not unlike customary international law, there is a body of customary military law that recognizes certain conduct as criminal in our specialized, military society—not through a specific statutory prohibition, but by dint of “longstanding customs and usages of the services.” In enacting the first two clauses of the “general article” (now Article 134, Uniform Code of Military Justice (UCMJ)), Congress incorporated customary military law into our criminal code. The President has listed many of these customary offenses in the Manual for Courts-Martial (MCM), but these do not—and cannot—create substantive criminal law; they are mere “examples” of customary offenses. There are others that, though otherwise unenumerated either by Congress or by the President, also exist under customary military law Which brings us to the, to be dismissed, novel specification. Appellant pleaded guilty to a specification alleging that he: [W]rongfully did or failed to do certain acts, to wit: consuming alcohol to the point of severe inebriation at a remote location on Amaknak Island, while it was dark outside, raining and near freezing, without properly notifying fellow crew of the location and without ensuring any effective means of requesting necessary assistance, and then leaving [Seaman Kelch] alone after it was clear that he was disoriented and in extremis due to intoxication and the effects of the elements, each of which actions contributed to the death of [Seaman Kelch]. Under the circumstances, this conduct was to the prejudice of good order and discipline in the armed forces. In Lee, a published opinion, the appellant was convicted, MJA, of indecent conduct and adultery at a Special Court-Martial. He was sentenced 120 days, RiR, and a BCD. Appellant asserts eight assignments of error [AOE], which we renumber as follows: (1) that the evidence for Specification 1 of the Charge (indecent conduct) is legally and factually insufficient; (2) that the evidence for Specification 2 of the Charge (adultery) is legally and factually insufficient; (3) that the offense of indecent conduct in Specification 1 of the Charge is preempted by Article 120b(c), UCMJ; (4) that the military judge erred when he denied the Defense motion to suppress evidence; (5) that the military judge erred when he ruled that the Defense was not entitled to certain evidence in discovery; (6) that the Entry of Judgment as written is deficient; (7) that the Government committed a discovery violation when it failed to provide the Defense with certain impeachment evidence in discovery; and (8) that the military judge effectively acquitted Appellant of Specification 1 of the Charge when he acquitted him of the word “persuade.” The court construes the Article 134 charging as an attempt to avoid having to prove an overt act. We do not find the Government’s attempt to avoid the burden of proving an overt act persuasive for a number of reasons. First, the Government’s argument on appeal ignores concessions already made at trial. In its response to Appellant’s motion for a finding of not guilty of this offense under Rule for Courts-Martial [R.C.M.] 917, the Government did not argue that it was not required to prove an overt act, but instead argued that “the substantial step for an attempt can be satisfied by words alone.” Allowing the Government “to tell the military judge one thing . . . and then . . . assert something else on appeal . . . would go against the general prohibition against taking inconsistent litigation positions.” On the indecency issue,
On the suppression issue,
The National Institute of Military Justice has filed an amicus brief in support of Defendents-Appellants in U.S. NAVY SEALS, et. al. v. JOSEPH R. BIDEN, JR., in his official capacity as President of the United States of America; et. al. When the government responds to a written discovery request and their reply is “[N]o such evidence is known to exist[,]” or words to that effect--do not believe them or rely on that response. Yes, this is hyperbolic, but I wish to make a point. I am in general agreement with Chief Judge Ohlson and Senior Judge Effron, dissenting in United States v. Givens, issued by CAAF today--the judges are not hyperbolic--but they are dead on. The trial defense counsel filed a motion for defective referral because of UCI just a few days before trial was to start; months after arraignment and some time after the MJ's motions due date. The MJ declined to hear the motion because it was filed late and because defense counsel had not sufficiently established "good cause" for a waiver of the filing deadlines. (The dissent is critical of the MJ for not making a good effort to get at the reasons for late discovery of the issue itself. Slip op. at 2.) If I am reading the opinion correctly, it seems it was trial counsel who was alleged to have committed UCI. Slip of. at 2 and 4. Appellant argued that this motion embodied a combination of two, separate but related, errors. On one front, the motion alleged the preferral was defective because CPT JE coerced CPT CF into preferring charges that CPT CF did not believe were true, and of which CPT CF lacked personal knowledge. Secondarily, the motion alleged that CPT JE’s act of coercing CPT CF to prefer charges also constituted unlawful command influence. Do not take comfort from United States v. Jameson, in that defense counsel may reasonably rely on representations of trial counsel when deciding not to raise a motion (or perhaps do anything else for that matter). The dissent observes, I also note that on July 13, 2018—more than four months before the entry of pleas—defense counsel specifically asked the Government to disclose any evidence of unlawful command influence, to which the Government responded: “[N]o such evidence is known to exist.” Appellant’s reliance on that representation was reasonable because all evidence of unlawful command influence concerned the behavior of government actors. And as we have held previously, “there [is] good cause [shown] when the government ‘sandbag[s]’ the defense.” United States v. Jameson, 65 M.J. 160, 163 (C.A.A.F. 2007) (third alteration in original) (quoting United States v. Coffin, 25 M.J. 32, 34 n.3 (C.M.A. 1987)). That is, when defense counsel reasonably rely on representations by the government in deciding to not file a motion, and the government later acts inconsistent with those representations, good cause can exist to “grant relief from the waiver.” R.C.M. 905(e); see Jameson, 65 M.J. at 163. Per Jameson, the Government may not have it both ways. Appellant’s failure to file a timely motion was directly traceable to representations made by the Government, and thus even if the motion should have been filed before pleas, the military judge erred in failing to address this critical evidence as to whether there was good cause to “grant relief from the waiver.” R.C.M. 905(e). Slip op. at 7 (Ohlson, C.J. and Effron, S.J., dissenting). So, what's the issue? Generally, any person subject to the UCMJ may prefer charges, however, the accuser must state that the charges “are true in fact to the best of his knowledge and belief.” United States v. Hamilton, 41 M.J. 32, 36 (C.M.A. 1994) (internal quotation marks omitted) (quoting Article 30(a)(2), UCMJ, 10 U.S.C. § 830(a)(2)). Under Rule for Courts-Martial (R.C.M.) 307(b), through the accuser’s signature, preferral signifies that a person has sworn an oath to assure that they have either personal knowledge of or investigated the matters set forth in the charges and specifications. Slip op. at 4. Every now and again the command may slip up and just tell someone to "sign here," and they do so without satisfying the legal requirements for preferral. The majority opinion concludes that the military judge did not err. However, for the reasons set forth below, I conclude that the military judge erred in two critical respects. First, the ruling of the military judge did not take into account the recognition in our case law of the importance of permitting an accused to raise an accusatory UCI claim at any point before the adjournment of an accused’s trial. Second, even assuming that the filing did not meet the timing requirements of Rule for Courts-Martial (R.C.M.) 905(b)(1), I conclude that the military judge erred by failing to conduct an adequate inquiry into the circumstances supporting the defense contention that there was good cause to “grant relief from the waiver.” R.C.M. 905(e). To some extent this case has strains of the case-that-shall-not-be-named, United States v. He Who Shall Not be Named. What did the defense know and when did they know it? The dissent observes, The military judge denied the motion on the basis that the facts relied on by the defense were “discoverable” since the date of preferral. If that standard were established as a required condition for establishing good cause, it would impose on defense counsel an obligation to engage in discovery throughout an accused’s command in order to ascertain whether there had been any impropriety at the accusatory stage of a court-martial, even if the defense had no basis for making such an inquiry. There are several questions not addressed by CAAF or the MJ.
The dissent also takes issue with the majority's conclusion about when the defense must make or lose an accusatory UCI motion. The majority holds there was no abuse of discretion by the military judge. So, it may seem that motions to dismiss for accusatory UCI must be made before arraignment, or the date in the TMO, or you better have a really good reason you didn't find out sooner. Of course, UCI might be one of the harder issues to identify and root out, because, I suspect, the witnesses are not likely to be so open about the relevant facts and circumstances. One other point not discussed is the 'so what' question. Let's assume the MJ had heard and agreed with the defense. Was the MJ required to dismiss with prejudice? Could the MJ have dismissed without prejudice allowing the gubmint to do it again but the right way? If you have some pithy on point comments, send them our way at [email protected]. Make no mistake, I am not condoning the late filing of motions. I am a fan of pretrial motions, especially motions in-limine from either party. This is why I am fond of the Navy-Marine Corps practice of scheduling at least one motions session before trial.
Cheers, Phil CaveA plaintiff bringing a damages claim under 42 U.S.C. § 1983 for constitutional violations arising in the criminal-justice process “need only show that his prosecution ended without a conviction” and not “with some affirmative indication of innocence,” Justice Brett Kavanaugh wrote for a six-justice majority in Thompson v. Clark. Justice Samuel Alito dissented, joined by Justices Clarence Thomas and Neil Gorsuch.
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