NMCCA’s opinion Miller should be read first. Because the NTJAG certified the case to CAAF which decided in favor of the government on April 4, 2022. Judge Sparks writes for a unanimous court addressing three issues—related to post-trial issues, post-trial motions, and record completeness. I. Did the lower court err in finding the convening authority abused his discretion under R.C.M. 1109 by acting after Appellee submitted R.C.M. 1106 clemency matters but before the military judge issued his written post-trial ruling? At trial, the Appellant was awarded a total of 239 sentence credit against the 12 months adjudged. The appellant was apparently placed in post-trial “protective custody. When the defense learned of this they asked for a post-trial hearing and moved for an additional 33 days confinement credit based on “illegal post-trial” confinement. The military judge’s ruling did not make it into the record before the CA action. So, NMCCA set aside the CA action because it was “premature.” They held omission of the military judge’s ruling was “substantial” because the CA could not have fully reviewed the record when deciding on clemency. They also decided that if the MJ ruling was not available the SJA could not have properly reviewed the record and given proper advice. The CAAF reviews the new post-trial rules. Given the significant changes in the post-trial processing system that applied to Appellee’s case, we conclude that the convening authority’s action was not premature nor was the staff judge advocate’s recommendation uninformed. The record of trial is not required to be complete at this stage of post-trial processing. Appellee had the right to submit clemency matters, and the convening authority must, and did, consider the clemency matters. If Appellee wanted to ensure that the convening authority considered his post-trial confinement conditions, the appropriate place was to include it in his clemency request or to have filed a post-trial motion within five days of receiving the convening authority’s action. He did not do so. Therefore, there is no error for us to correct. Reading the NMCCA decision we find this chronology, 8 May 2019 Appellant sentenced. From this chronology, we can read that the defense was on notice of the potential error regarding post-trial confinement and why the CAAF reached its ultimate conclusion. Cheers, Phil CaveProf. Robert Leider unpacks the recent oral argument in Torres v. TX Dept. of Public Safety over at his personal blog. This is the question presented:
"Are the federal war powers so absolute and exclusive that they include the power to subject state governments to nonconsensual suits for monetary damages? That was the issue last Tuesday when the Supreme Court heard oral arguments in Torres v. Texas Department of Public Safety." United States v. Tyler Miller, Army SPCM from 2009, does not appear on line.
Apparently he was convicted at a Special Court-Martial for wrongful sexual contact and "was reduced to an E-1, confined for 11 months and later discharged from the service with a ‘bad conduct’ discharge.” CentralMaine.com reports that he has been arrested for failing to register as a sex offender in Ohio. Amy Calder, US Marshal's arrest a Newport man who failed to register as a sex offender in Ohio. Morning Sentinel, April 2, 2022. Here's a link to the Ohio Revised Code. See here about the U.S. Marshal's Service and sex offenders. Wermuth revisits AFCCA after a remand to correct post-trial issues. He will be back for a third. Initially the CA had "failed to take action on the sentence." However, when the case was redocketed, "the re-docketed record of trial contains no [no corrected CA action]. Instead, where this document should appear, there is an 8 September 2021 corrected “Convening Authority Decision on Action” for a different appellant’s case."
The court remands the case back to the field. Tawakkol v. Texas Dept. of Public Safety, Sex Offender Registration Bureau, et al., No. 1:19-CV-513-LY (W.D. Texas, March 29, 2022). Plaintiff was a USAFA cadet convicted at court-martial. "All three charges stemmed from attempted or actual violations of UCMJ Art. 120c(a)(2), Indecent Viewing, Visual Recording, or Broadcasting." "He was also convicted of one count of Invasive Visual Recording on March 27, 2018, in a Texas state-court proceeding. Tex. Penal Code Ann. § 21.15(b). Tawakkol's conviction under Section 21.15(b) is not included in the definition of a "reportable conviction or adjudication" under Section 2 l. 15(b) for the purposes of the registration required by Texas law. Tex. Code. Crim. Proc. Ann. § 62.001(5)." Defendants argue that Tawakkol must register as a sex offender because he is an "extrajurisdictional registrant" under Texas law. An extrajurisdictional registrant is required to register as a sex offender in Texas. An extrajurisdictional registrant The judge then reviewed SORNA and DoD Instruction No. 1325.07, Administration of Military Correctional Facilities and Clemency and Parole Authority, to determine if the classification of Tawakkol's convictions are properly listed or the classification is ultra vires and unenforceable. In reviewing the validity of a military law or regulation, the court gives "great deference to professional judgment of military authorities." See Goldman v. Weinberger, 475 U.S. 503, 507 (1986); Or/off v. Willoughby, 345 U.S. 83, 94 (1953) ("Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters"). The Supreme Court has explained this deference: "the special relationships that define military life have 'supported the military establishment's power to deal with its own personnel' [because] 'courts are ill-equipped to determine the impact upon discipline that any particular intrusion upon military authority might have." Chappell v. Wallace, 426 U.S. 296, 305 (1983) (quoting Earl Warren, The Bill of Rights and the Military, 37 N.Y.U. L. Rev. 181, 188 (1962)). After discussing UCMJ art. 120c(a)(2), the judge concludes that, Article 1 20c(a)(2) cannot be considered an offense requiring sex offender-registration, at Prescott was convicted by members of attempted larceny and a false official statement; for which he was Dismissed. Appellant submitted a claim in the Defense Personal Property System (DPS)4 in excess of $32,000.00 for 168 items he claimed had been either damaged or were missing as a result of the move; Appellant received $16,309.22 for his claim.
Appellant raises the following issues (1) Legal and factual sufficiency. (2) Abuse of discretion by permitting the Government to offer evidence of Appellant’s 2011 household goods claim under Mil. R. Evid. 404(b). (3) Improper trial counsel argument on findings. (4) Sentence appropriateness. (5) Commander of Space Operations Command, United States Space Force, lacked jurisdiction to take action on Appellant’s sentence. (6) Do the charged victim’s subrogation and charge-back agreements with its agents render Appellant’s conviction for attempted larceny legally and factually insufficient. (7) Error by granting the Government’s challenge for cause against a court member. (8) The finding of guilty to attempted larceny was ambiguous. (9) The court-martial ceased to be properly convened when 14th Air Force—the convening command—was redesignated Space Operations Command. (10) Unreasonable post-trial delay. (11) The unanimity issue. Richard Luscombe, Ruth Bader Ginsburg will be honoured with US navy ship named after her. The Guardian, April 1, 2022.
SECNAV Names Future Replenishment Oiler Ship Ruth Bader Ginsburg. Dominguez-Sandoval "pled guilty to three specifications of cyber harassment, in violation of Subtitle 2, Part 5, Chapter 33, Section 4.1(a)(2), New Jersey Code of Criminal Justice (N.J. Stat. § 2C:33–4.1), assimilated into federal law through" UCMJ art. 134(3). He was sentenced to 12 months, RiR, BCD, reprimand. He raised three issues, (1) whether his cyber-harassment convictions, which were based on New Jersey state law and assimilated into federal law, were barred by the specifically enumerated offense of indecent language under Article 134, UCMJ. (2) in the alternative, whether Appellant’s guilty pleas to the same convictions were improvident due to the military judge’s use of the Manual for Courts-Martial’s definition of “indecent[.]” (3) "[W]hether the “convictions were improvident” as Appellant’s language was not indecent when considered in the context of a pornographic website. Appellant argues the Government “could have, and should have” charged him with “the specifically enumerated offense of indecent language under Article 134, UCMJ,” instead of charging him with the New Jersey cyber-harassment offense, because the military judge focused on the indecent language used by Appellant during his providence inquiry. Under the assimilated New Jersey crime of cyber-harassment, Appellant faced a maximum confinement of 54 months, or 18 months for each specification. However, had Appellant been charged with indecent language under Article 134, UCMJ, he would have faced a maximum confinement of 18 months, or 6 months for each specification. The court concludes that, Applying the Lewis test, Appellant’s acts could have been charged under Article 134, UCMJ, Indecent language. However, we find the indecent language offense under Article 134 does not reveal an intent to eliminate an element as to exclude use of the New Jersey law. The New Jersey law does not interfere with the achievement of a federal policy, and it does not effectively rewrite an offense definition that Congress has already occupied. Thus, the Article 134 offense does not preclude application of the New Jersey law through assimilation. The findings and sentence were affirmed.
Taylor's GP case is back after correcting for post-trial errors. He had pled guilty to five specifications of conduct unbecoming and was sentenced to 60 days, $1.5K x 3, a Dismissal, and a reprimand. His issues now are,
(1) IAC. (2) Provident GP? (3) Inappropriately severe sentence. Note. Whether a court-martial conviction is for a felony or a misdemeanor is based on how a state interprets the court-martial offense of which convicted not what the forum was. In some states, a special court-martial conviction for theft over $1000.00 is a felony even though the forum was a SPCM, for example. Generally, the state courts looks to see if there is an "equal" or similar charge under their law and how that is classified. The charges here would not likely be considered a felony based on a reading of the opinion--what state classifies adultery (assuming that is still on the books) as a felony? What state classifies "fraternization" with a co-worker as a crime and a felony? SEXUAL ASSAULT. DoD and Coast Guard Should Ensure Laws Are Implemented to Improve Oversight of Key Prevention and Response Efforts. Report, GAO-22-103573. Congress passed 249 statutory requirements directing the Department of Defense (DOD) and the Coast Guard to address prevention of and response to sexual assault incidents, and most remain in force. The statutory requirements covered four broad categories: Victim Assistance and Advocacy (37 percent); Management and Oversight (33 percent); Military Justice and Investigations (21 percent); and Prevention Efforts (9 percent). DOD fulfilled most of these statutory requirements, such as establishing comprehensive policies to prevent and respond to sexual assault as well as training for sexual assault forensic and nurse examiners. However, DOD partially implemented 24 requirements and did not implement 5 requirements. (See figure.) For example, DOD did not report certain information in annual reports; establish and implement an evaluation plan to assess the effectiveness of the outcomes of its programs and activities related to sexual assault prevention and response; or ensure the tracking of commander compliance for conducting organizational climate assessments. The report notes that "Some of the issues the GAO found date back nearly 20 years to requirements that have since expired without being fulfilled. Others involve repeated failures to satisfy Congress’ specifications." See Chad Garland, Armed services didn’t implement dozens of measures to help stop sexual assault, GAO finds. Stars & Stripes, March 30, 2022.
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