United States v. PattersonUnited States v. Davis (ACCA). The Games NCIS Play. The lead agent began the rights advisement by saying, "Before we can talk to you, we just have to go over this form with you, okay?" He described it as "[n]ot a scary form" and "just a piece of paper." United States v. Patterson, No. 202200262, 2024 CCA LEXIS 130, at *13-14 (N-M Ct. Crim. App. Apr. 4, 2024). This issue of NCIS trickery has arisen in a number of DoN cases. Watch for it. While appellate courts, including the Supremes, have said it's OK for investigators to lie during interrogations, not every lie or misleading statement is tolerated. In this case, NMCCA found the lie substantially prejudicial. Even if we assume the rights advisement did not violate Article 31, we would still find, under the totality of the circumstances, that Appellant's due process rights were violated and that his statements to NCIS were not voluntary. Because of NCIS, NMCCA set aside a conviction in a serious case.
A Marine noticed a pen on the floor under a radiator in a male locker room. The Marine's examination of the pen found that it was not an ordinary pen because it had lights on it, what appeared to be a microphone, and an SD card inside. An NCIS agent, with the assistance of an NCIS Digital Forensic Examiner, conducted a review of the SD card's contents. The review revealed a video of Appellant manipulating the device, looking directly at the camera, and placing it under the radiator where it was found. The content review also revealed numerous videos of what appeared to be Appellant engaged in consensual sexual intercourse with unknown men. There were deleted folders with names such as "Marine1," "Big Asia," "Big Asian Dude," and "Mexican Dude." Within the deleted folders, there were two videos of a male later identified as Captain J and one video of a male later identified as Captain C completely naked in their respective bedrooms. "No. 24-0126/OT. In re Paul Raymond Theriault, Petitioner. Notice is given that a request for reexamination of Petitioner's case was filed on March 26, 2024, and placed on the docket this 4th day of April, 2024. Petitioner has not presented any basis to believe that he was ever charged with any offense under the Uniform Code of Military Justice. On consideration thereof, it is ordered that said request is dismissed for lack of jurisdiction, and no further filings will be accepted or docketed by the Court in this matter."
In Re BM:
"The procedural posture in which we confront this certified question is unusual and perhaps unprecedented. Although the Judge Advocate General certified the question, the Government asks this Court to answer the question in the negative and to affirm the NMCCA’s decision. The Government does not seek any relief from this Court based on this certified question.... " Read the opinion here. As the Court acknowledges, the ban on advisory opinions only applies to Article III federal courts, but it has adopted it "as a prudential matter." Many state high courts issue advisory opinions. International tribunals also do this. Another Article I court has noted that its ban on advisory opinions is self-imposed. Mokal v. Derwinski, 1 Vet. App. 12, 15 (1990). So: Is this self-imposition a good thing? "Article I courts, like courts created under Article III of the Constitution, derive their authority and their limitations from the Constitution. One such limitation, necessary for the protection of democratic liberty, is that bodies exercising the judicial power be confined to dealing with real disputes in concrete factual settings. This protects the people against the danger that unelected judges will engage in broad public policy making, contrary to our notions of popular government. Freytag v. Commissioner, 501 U.S. 868, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991)." Matter of Dep't of Def. Cable Television Franchise Agreements, 35 Fed. Cl. 114, 115–16 (1996). Is CAAF issuing advisory opinions a threat to democracy? The stage is now set for an appeal to the D.C. Circuit--at least, once an opinion is issued by the DJ. ![]()
The issue is whether Judge Gregory Katsas's work in DOJ during the War on Terror disqualified him from ruling on a military commission appeal. ![]()
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United States v. Richard, 83 M.J. ___ (CGCCA) |
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