ACCA released its unanimous opinion in United States v. Sanchez, siding with the government and affirming the conviction and sentence.
Sanchez opinion here. In Sanchez, ACCA clarified that under RCM 907 (as revised in 2016), an unconditional guilty plea waives a later claim that the pleaded-to specification fails to state an offense.
0 Comments
Judge Maggs filed a concurrence in the Bergdahl case last summer that dealt with one of the biggest legal issues in the case: whether or not the UCI regulation covered the President (of the US). 80 M.J. at 248. The regulation at issue, RCM 104(a)(1) states, “No convening authority or commander may [commit UCI],” and Article 22 of the Code states that “General courts-martial may be convened by…the President of the United States.” Putting these two together, one might think that the statutory authorization of the President to convene courts-martial qualifies him/her for the restrictions of the regulations. The President is a convening authority, and no convening authority may commit UCI. QED, right? Well, perhaps not if one were applying a method of interpretation that looked beyond the plain meaning of the text. Some methods hold that the intent of the writers, or their purpose, are also relevant. But Judge Maggs resisted the conclusion that the President is covered by the command regulation not from the standpoint of intentionalism or purposivism—he argued that even a textualist would come to this conclusion. How can that be? Judge Maggs cites to Reading Law by Scalia & Garner, noting that even committed textualists such as those authors agree that “the hyperliteral meaning of each word” need not be given effect. This may seem odd to the lay reader. Isn’t the “plain meaning” of the text the same as the “literal” meaning? How much work is “hyper” doing here? The full passage from Reading Law, not quoted by Judge Maggs, reveals that they were not thinking of some general license to ignore plain meaning. Instead, they were thinking of three narrow exceptions: “The full body of a text contains implications that can alter the literal meaning of individual words. To give but three examples: (1) the rule of ejusdem generis, which narrows the literal meaning of a tagalong general term (see § 32 [ejusdem generis canon]); (2) the rule that a provision whose literal meaning is evidently absurd can be taken to be an error if the rest of the text shows that only another meaning makes sense (see § 37 [absurdity doctrine]); and (3) the principle that an act not literally authorized is authorized as a necessary predicate of an authorized act (see § 30 [predicate-act canon]).” Reading Law at 356. Judge Maggs cites to this page in arguing that textualists would impose an “implicit qualifier” on the regulation—that the convening authority committing the UCI must be the convening authority convening that specific case. 80 M.J. at 252. Surely we are not dealing with an ejusdem generis situation here, nor does this look like a necessary predicate-act issue. What’s left, then, must be the absurdity doctrine. Judge Maggs alludes to this, but does not use the a-word: “If ‘no convening authority’ implicitly means no person empowered to act as a convening authority, and is not implicitly limited to the convening authority in the specific case at issue, then R.C.M. 104(a)(1) would have an astonishingly broad scope. For instance, it would cover not just the President of the United States, but also every junior officer in any service stationed anywhere in the world who is designated as a summary court-martial convening authority.” But if we bring the a-word back into the picture, the conclusion seems less obvious. Would it be absurd for the rule to have the effects Judge Maggs describes, or would it just be a very broad rule? Scalia and Garner describe an “absurd” interpretation as one that “no reasonable person could approve.” Reading law at 234. Chief Justice Marshall wrote that the exception applied when “the absurdity and injustice of applying the provision to the case, would be so monstrous, that all mankind would, without hesitation, unite in rejecting the application.” Sturges v. Crowninshield, 17 U.S. 122, 202–03 (1819). Could no reasonable person approve of a rule that prohibited all convening authorities from committing UCI? Scalia and Garner warn that the use of the absurdity canon threatens a "slippery slope," as "It can lead to judicial revision of public and private texts to make them (in the judges' view) more reasonable." Reading Law at 237. I believe that this is what happened here. Brenner FissellEIC It is common to say, as the Congressional Research Service said just last year, that the American military “is ultimately subordinate to civilian authority.” It would be more accurate to say that the American military is, and must continually be, against its will, actively subordinated to civilian authority. Frederick Douglass famously said, “power concedes nothing without a demand.”
The subordination of something so powerful as the American military endures only so long as our civilian authorities continue to insist upon it. Our Founders recognized this and insisted that constant and concerted action is required if civil authorities are to keep the military at heel, or else the “constant apprehension of War, has the . . . tendency to render the head too large for the body.” (James Madison, 1787). As Samuel Adams explained, “a wise and prudent people will always have a watchful and jealous eye” over their military. Maintaining civilian supremacy over a force that is custom-built to overrun the will of both militaries and civil governments is no easy task. To maintain liberty, any civilian government must be constantly on the lookout for signs of insubordination in its military apparatus. When insubordination is observed, as it inevitably will be, the civil government must act quickly and decisively to reassert supremacy. But, it is sometimes true that insubordination can be difficult to discern. For example, back in June 2020, when the Secretary of Defense said governors should “dominate the battlespace” and suppress rioting American civilians, he was probably just bleeding military jargon into common discourse at a time of great friction. Under those circumstances, a watchful and jealous eye might be forgiven for not immediately acting to bring the “dogs of war” to heel, even if the Secretary’s statement was enough to concern a former Chairman of the Joint Chiefs of Staff. Likewise, a civil authority on the watch for insubordination in the military might have seen cause for concern by the use of National Guard helicopters to execute a show of force against rioters in June 2020, or the use of tear gas and rubber bullets against protestors to allow for a Presidential photo-op that same month. That latter activity was, after all, something the Chairman of the Joint Chiefs of Staff has apologized for. But, as this Congressional Research Service report shows, volumes could be devoted to divining and parsing the ever so fine lines between lawful support to civil authorities during periods of unrest and violating the posse comitatus act. So, it is perhaps understandable that those occurrences did not inspire a firm hand. But, the same cannot be said for the Capitol Insurrection. Civil authorities should be equally angry and frightened to learn that military-affiliated personnel were so disproportionately represented in the force that attacked the Capitol on January 6, 2021. CAAF No. 21-0111/AR. U.S. v. Jesse M. Thompson. CCA 20180519. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue: WHETHER APPELLANT IS ENTITLED TO RELIEF UNDER R.C.M. 914. This is the military incorporation of the Jenck's Act. Keep in mind counsel are encouraged to produce such statements prior to trial. ACCA United States v. Tate. In response to a government request for reconsideration of its initial opinion, the court reverses itself. “Appellee requests this court reconsider our decision finding the convening authority improperly approved appellant's sentence without a substantially verbatim transcript, in violation of Rule for Courts-Martial [R.C.M.] 1103(f). United States v. Sartori. Appellant alleged IAC for failing to raise an unreasonable multiplication of charges motion and inadequate voir dire of a member. The member had read an Army Times article about the case and had discussed it with his wife. A challenge to the member was denied. The court found “no "reasonable probability [existed] that [an UMC motion) would have
been meritorious." NMCCA United States v. MacWhinnie. Appellant argued that it was an abuse of discretion to admit non-child pornography to show the litany of reasons in Mil. R. Evid. 404(b) and that the conviction of viewing is factually insufficient. Finding no error the court approved the findings and sentence. Appellant's post-trial documents are replete with errors. In this opinion, we correct these errors. However, in doing so, we wonder why this court should have to step into the shoes of the numerous parties at the trial level whose responsibility it is to ensure these legal documents, documents of consequence, are properly drafted, reviewed, and executed. Surely this court is not the first line of defense. So we must ask, how did this happen? So begins Sr. J. Aldykiewicz's opinion for the court in United States v. Pennington.
There, however, being no prejudice to appellant, the court affirmed the corrected findings and the sentence. Cheers, P.C. The issue of sexual assault is of course top of mind in discussions of military justice reform. Many know that a "90-day Commission" to study the issue was formed, and that its leader was just recently announced: Lynn Rosenthal, "formerly the first-ever White House advisor on violence against women." Is the singular focus on female victims in the reform conversation producing a blind spot? Consider the following passage from Military Times last year: "While the vast majority of sexual assault reports filed each year involve a male perpetrator and a female victim, Pentagon research has estimated that while 43 percent of women report their assaults, only 17 percent of men do. Some estimates have placed the number of male survivors of military sexual assault are higher than that among women, partly a reflection of the fact there are simply more men in the military. “A lot of people talk about how many female [service members] get assaulted, but more male [service members] on this base get assaulted on a daily basis than female [service members] do. It’s one-a-day for male [service members] because of the grunt barracks," a female junior enlisted Marine said. "Men are [explicit] each other and they’re raping each other and that’s so [explicit] up and nobody wants to talk about that. And they feel underrepresented because in the Step Up training, all there is is this female [service member’s] getting assaulted at a party and no male [Service members] are being talked about at all.”" Recommended reading: Bennett Capers, Real Rape Too: "As a society, we have been largely indifferent to the prevalence of male rape victimization. In the prison context, we dismiss it as par for the course, as "just deserts," or worse yet, as a rarely stated but widely known component of deterrence. We treat prisons as invisible zones, as zones without law, as zones that need not concern us. Outside the prison context, our response is no better. We tell ourselves male rape victimization is a rarity, or perhaps something that only happens to gay men. In short, we render male victim rape invisible, or at least un-articulable. This Article renders male victim rape visible..." Brenner FissellEIC 🚨🚨🚨
"Order Granting Petition for Review No. 21-0111/AR. U.S. v. Jesse M. Thompson. CCA 20180519. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue: WHETHER APPELLANT IS ENTITLED TO RELIEF UNDER R.C.M. 914. Briefs will be filed under Rule 25." CONGRATULATIONS to the following members of our staff that have been selected for active duty service: Farris Francis, Research Fellow: Army JAG
Again, congratulations to our staff on their selections! We are confident that each will be a great addition to their respective branches. Elizabeth M. BerecinManaging Editor ![]() Probably serendipity, but the question has come up about a citizenship requirement for a CAAF judge. The court is located within the Executive Branch of government as an Article I, U. S. Constitution court (despite early proposals for it to be an Article III court with the judges appointed accordingly.) The Congress creates the court and prescribes its jurisdiction and scope of authority under the make rules (for the government and regulation of the land and naval forces) clause of Article I, sec. 8., U. S. CONST. The Senate gives its advice and consent on the appointment of the court’s judges because they are “officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law.” Article II, sec. 2. U. S. CONST. Nothing in these constitutional provisions requires that a judge of the CAAF be a citizen. The Constitution only requires that the President must be a “natural born citizen.” Citizens of the U. S. at the time of the Constitution’s adoption are age barred. The CAAF judges do have to take the standard oath to support and defend the Constitution. I’m not sure this is or should be a bar to a non-citizen being appointed because they are not required to swear an oath of allegiance to the United States; a requirement of citizenship. One colleague observes that Article VI, cl. 2. U. S. CONST. requires the oath of support of the Constitution from executive branch appointees. He then observes that while the Constitution mentions the term "citizen" many times, a requirement of citizenship is not thereby imposed on the person taking the oath. So now to the statutory qualifications of executive branch officeholders. The CRS has a useful monograph on the subject. Henry B. Hogue, Statutory Qualifications for Executive Branch Positions. Congressional Research Service, 9 September 2015. In practice, it has not been unusual for Congress to mandate that appointees to certain positions meet specified requirements. Some statutory qualification provisions, like those for the FEMA Administrator, require that appointees have certain experience, skills, or educational backgrounds that are associated with competence. Other qualification provisions address a variety of characteristics, such as citizenship status, residency, or, for the purpose of maintaining political balance on regulatory boards, political party affiliation. Congress has used such statutory provisions selectively; most executive branch positions do not have them. Article 142, UCMJ, 10 U.S.C. § 942, does not expressly require citizenship for the court's appointment. Congress has added two qualifications that may be affected by the citizenship question: the requirement to be properly admitted to practice law and the restriction on regular component retirees. It has limited the power of nomination by providing that the office may be held only by a resident of the United States; of a State; of a particular State; of a particular district; of a particular territory; of the District of Columbia; of a particular foreign country. Myers v. United States, 272 U.S. 52, 1926 U.S. LEXIS 35 (1926) (Brandeis, J., dissenting) (emphasis added). Hogue, at Appendix A-1, lists various offices and their qualifications—some require citizenship and others are silent like Article 142, UCMJ. Essentially, expresio unius est exclusion alterius at work in that the Framers knew and the Congress knows when and how it wants to insert a citizenship requirement. I continue to think then that citizenship is not required of all appointed to the U. S. Court of Appeals for the Armed Forces. Note the qualification. A retired officer of the Reserve component may be appointed as can a retired officer of the Regular component who has been retired for more than seven years at the time of the appointment. Article 142(b)(4), UCMJ, 10 U.S.C. 942(b)(4). Judge Darden, one of the first judges was a retiree as was Judge Wiss (a Reserve component officer). But, what do you have to be to hold a commission in the United States armed forces? A citizen (natural born or through naturalization)! There is yet one more step in the inquiry about lawfully imposed citizenship requirement to be appointed to CAAF. A CAAF judge must be admitted to a "federal court or the highest court in a state" as a prerequisite for appointment. Article 142(b)(3), UCMJ, 10 U.S.C. § 942(b)(3). Each state has its own requirements for admission to the bar and to practice. In the Commonwealth of Virginia, to be admitted, you must be a citizen or non-citizen lawfully admitted with the right to work in the United States. (No, I do not know the effect of DACA and I have not done the research to know if other states have a citizenship requirement--anyone know?) More practically, how does the Administration deal with the citizenship question if at all? A question to which I do not know the answer. I have no idea whether any inquiry is made during the nomination process about citizenship. It is possible the DoD Office of the General Counsel makes a point of that and asks or perhaps citizenship is assumed and so no questions are asked. I can say that when DoD solicits recommendations for a CAAF appointment no mention is made of a citizenship requirement. AN UPDATE Appellant, a resident alien, was denied permission to take the Connecticut bar examination solely because of a citizenship requirement imposed by a state court rule, which the state courts upheld against applicant's constitutional challenge. In re Griffiths, 413 U.S. 717 (1973). In the realm of the truly esoteric for a CAAF judicial appointment, it was brought to my attention a California case of note. In In re Sergio C. Garcia, 58 Cal.4th 440, 315 P.3d 117 (Cal. 2014), the Supreme Court of California had before it whether an "undocumented immigrant" could apply for and be admitted to the bar. The court found that, "For all of the foregoing reasons, we conclude there is no state law or state public policy that would justify precluding undocumented immigrants, as a class, from obtaining a law license in California." Cheers, P.C.
A job announcement on the website of the U.S. Court of Appeals for the Armed Forces seeks applicants for a two-year (renewable) at-will appointment as a staff attorney on the Central Legal Staff. According to the announcement: The principal tasks of the staff attorney include: he part of particular interest is the italicized language in the first bullet. Here is what Art. 67(a)(3), UCMJ says: The Court of Appeals for the Armed Forces shall review the record in-- "We are all textualists now," Justice Elena Kagan has famously said. As you read the text of the statute, does it contemplate that the court will conduct its own de novo review of the record of trial before it has granted review? Doesn't the past tense of the terminal "has granted a review" clause indicate that the duty to "review the record" arises only after good cause has been shown and the petition has been granted? Is the court putting the review-the-record cart before the grant-of-review-for-good-cause horse?
My personal comments would be that if done correctly,
Cross-posted with permission from Gene Fidell at Global Military Justice Reform blog. Cheers, P.C. Sex crimes, a heavy topic for many, but a topic that is nevertheless pervasive in a military justice caseload. From periods of under prosecution to overzealous prosecution, the pendulum never stops swinging, rarely balanced. With the confirmation of SecDef Austin, and President Biden's ordering of a 90-day commission to address sexual assault and harassment, it appears the pendulum is swinging towards Pentagon leadership pushing for over-prosecution. After his confirmation in January, one of SecDef's first actions was ordering the review of the military's sexual assault and harassment prevention programs. Two weeks ago at a Pentagon press briefing, SecDef reiterated his commitment to preventing sexual assault, even going so far as to admit that they " haven't gotten it right." And just last week at a press conference, Pentagon Press Secretary Kirby stated that the 90-day commission will begin soon and that SecDef will not wait until the end of the 90 days to implement changes. Explicitly, policy changes are coming on how the military addresses sexual assault and harassment. Implicitly, a rise in the prosecution of sexual assault and harassment cases. Only time will tell but after the removal of Fort Hood leadership following the death of PFC Vanessa Guillen, and the public outcry for accountability, I wouldn't be surprised. Elizabeth M. BerecinManaging Editor On 10 February 2021, the United States Navy-Marine Court of Criminal Appeals (“NMCCA”) published an opinion in United States v. Corporal Thomas A. Page III. The NMCCA reviewed Appellant’s two assignments of error de novo. The NMCCA SET ASIDE and DISMISSED WITH PREJUDICE the finding of guilty pursuant to Article 117a and, with careful consideration of the law and facts, AFFIRMED the remaining findings and sentence in Entry of Judgment pursuant to UCMJ Arts. 59, 66.
Opinion Here "What makes for a good judge? Sheer smarts? Academic qualifications? Temperament? Empathy? Ability to get along with others? Writing skills? Personally, my hope is that the Department of Defense, the White House, and those on Capitol Hill who have roles to play in the process will take their time and cast their net broadly. People who are interested in serving on the U.S. Court of Appeals for the Armed Forces should thoughtfully consider their qualifications and credentials, consult with others, and if they are willing to run the risk of being disappointed, allow their names to be put forward."
Read the full Just Security article. We all are reading numerous opinions addressing post-trial issues primarily related to the CA action. United States v. Motus presents the issue differently and raises a note of caution for trial defense counsel and inferentially a call for action on their part. After a contested MJA trial for various sexual offenses the military judge entered mixed findings and imposed a DD and two. On appeal, one AOE asked the court to set-aside the sentence because, Appellant asserts his trial defense counsel were ineffective in, inter alia, failing to file a post-trial motion regarding the convening authority not taking action on Appellant’s sentence as required by Executive Order 13,825, § 6(b), 83 Fed. Reg. 9889, 9890 (8 Mar. 2018), and Article 60, UCMJ, 10 U.S.C. § 860. The government claimed the law was so "unsettled at the time" that there was no IAC, the proper remedy was to remand for corrective action; and based on the offenses and sentence 'so what (no prejudice)?' The court agreed the CA erred and remanded the case to the CJAFTJ for further action. The court deferred ruling on the IAC claim until Motus makes his return appearance before the court. In discussing the applicable law the court observed, The version of Article 60, UCMJ, in effect in 2018—the year in which Appellant’s offenses occurred—stated “[a]ction on the sentence of a court-martial shall be taken by the convening authority or by another person authorized to act under this section.” 10 U.S.C. § 860(c)(2)(A) (emphasis added); see also United States v. Perez, 66 M.J. 164, 165 (C.A.A.F. 2008) (per curiam) (“[T]he convening authority is required to take action on the sentence . . . .”). Article 60(c)(2)(B), UCMJ, further stated: “Except as [otherwise] provided . . . the convening authority . . . may approve, disapprove, commute, or suspend the sentence of the court-martial in whole or in part.” 10 U.S.C. § 860(c)(2)(B). The convening authority’s action is required to be “clear and unambiguous.” United States v. Politte, 63 M.J. 24, 26 (C.A.A.F. 2006) (citation omitted). The court does address the various statutory changes and the recent appellate decisions on what to do with post-trial error cases. I think in doing so the court effectively concedes some confusion in the field and among the appellate courts.
There is a dissent finding no error. This week, Scholarship Saturday is enthused to present a piece from Columbia Law School student Jackson Rubinowitz commenting on a recent article published in the Military Law Review by U.S. Army Major Kevin M. Junius.
Mr. Rubinowitz' work begins below the "read more" break. - Isaac Kennen, Scholarship Editor The search is on for the next person to be appointed to CAAF when C.J. Stucky retires. Judge Ohlson will become the court's chief judge. You can go here for a short biography of the current judges. And see, Article 142, UCMJ, 10 U.S.C. § 942, Judges (of the court) and Article 143, UCMJ, 10 U.S.C. § 943, Organization and employees (of the court). You are invited to a Town Hall discussion on the subject hosted by Global Military Justice Reform. Time: 0900, Monday 1 March 2021. Place: Zoom. Join Zoom Meeting https://us02web.zoom.us/j/84777954707?pwd=ZHA2ZVlrd0ZBeEJaTGFDUndBdHdnUT09 Meeting ID: 847 7795 4707 Passcode: 272852 Advance reading, Eugene R. Fidell, The Next Judge. 5 J. NAT. SEC. L. & POLICY 303 (2011). Interestingly, the author observes, The Court of Appeals has been deciding fewer than one case per judge per month on full opinion for the last several years, although admittedly it also must sift through many petitions for grant of review. Whether or not the court should (as I believe) be granting far more petitions for review, this is clearly not a heavy load. Moreover, trial caseloads in the armed forces have declined markedly, meaning the Court of Appeals is unlikely to experience a surge of cases in the foreseeable future. (Note the political party affiliation no longer applies.) For historians, See Ten-Year Chronology of the United States Court of Military Appeals. Appendix B in the 1961 Annual Report of the United States Court of Military Appeals and the Judge Advocates General of the Armed Forces and the General Counsel of the Department of the Treasury. The chronology, which was prepared by Frederick R. Hanlon, Deputy Clerk, presents a brief history of the U.S. Court of Military Appeals and includes biographical information on the three civilians appointed to the military tribunal by President Harry S. Truman—Chief Judge Robert E. Quinn, Associate Judge George W. Latimer, and Associate Judge Paul W. Brosman. In the last term the CAAF issued 25 opinions. The last term annual report for the court is here and you can judge for yourself their workload. The total number of petitions for 2011 was 700, the next highest was 853 for 2014, and for last term 369. Keep in mind that the number of grants per year is not a complete indicator of the court's workload. In 1994 the court issued 144 opinions and 2223 Orders in cases.
Cheers, P.C. On 20 November 2020, United States District Court Judge Richard J. Leon ruled that the military’s use of a court-martial against a Fleet Marine Corps Reservist was unconstitutional. Just two months later, a divided en banc Navy-Marine Corps Court of Criminal Appeals (NMCCA) held that courts-martial did have jurisdiction over the same group of military retirees. Now on appeal before the DC Circuit (CADC) and the Court of Appeals for the Armed Forces (CAAF), respectively, these cases have set the courts on a potential collision course.
Despite undergoing a broad overhaul in 2016, the Uniform Code of Military Justice still allows for the prosecution of certain military retirees. Specifically, Article 2(a)(4) and (6) subject Fleet Reservists, Fleet Marine Corps Reservists, and regular component retirees who are entitled to pay to continuous UCMJ jurisdiction. In contrast, reservists are only subject to UCMJ jurisdiction while acting in their capacity as reservists, i.e., during inactive duty training or while on active duty. And retired reservists are never subject to the UCMJ unless they are receiving hospitalization from an armed force. Whether Article 2(a)(4) and (6) are constitutional carries significant implications for those individuals affected. For instance, how the court answers this question will decide whether an accused retiree will face a civilian trial with a jury or a court-martial with a member panel. Many have asked to receive email updates with new posts. A daily round-up email of new posts is now functional. Sign up here to receive the daily email (which goes out at noon EST each day).
The NMCCA has issued a published opinion in United States v. Becker—actually a ongoing government appeal. Appellee is charged with assault consummated by a battery, conduct unbecoming an officer and a gentleman, and premeditated murder for allegedly strangling his wife in August 2013, physically and emotionally abusing her over the following two years, and then drugging her and causing her to fall from a seventh-floor apartment window to her death in October 2015. The military judge on remand reconsidered and adopted the same findings and made the same ruling. The court now sends the case back because the military judge “fail[ed] to consider important facts.” The court addresses forfeiture by wrongdoing as a method to introduce prior statements of the decedent. The court makes the following points when considering the second prong of the exception to hearsay suggested by Giles v. California.
This was sufficient to conclude that the ““wrongful act [wa]s performed with an intent to prevent [Mrs. B.] not only from testifying at some formal proceeding, but also from reporting abuse, cooperating with law enforcement, or resorting to outside help.”” There is a dissent which makes several points.
The facts that the majority characterizes as “important facts” were thus in front of the military judge, twice.
Per Army Times: Sergeant Dermot Blake was charged in Colorado Springs, CO, with First Degree Murder and two counts of Child Abuse, after Blake called police and told them that he shot his wife. Colorado Springs Statement here. Elizabeth M. BerecinManaging Editor “When a defendant voluntarily pleads guilty to an offense at a court-martial, he is “not simply stating that he did the discrete acts described” in the specification, but also that he is guilty of the “substantive crime” set forth in the specification. United States v. Hardy, 77 M.J. 438, 442 (C.A.A.F. 2018) (internal quotation marks omitted) (quoting United States v. Broce, 488 U.S. 563, 570 (1989)). Based on the combination of this principle and a 2016 change to Rule for Courts-Martial [R.C.M.] 907, we hold that an unconditional guilty plea waives a later claim that the pleaded to specification fails to state an offense.” Thank you to "Scott" below for pointing out that felony murder in the military is a strict liability offense (with respect to causing death). Felony murder statutes of this nature are criticized for allowing unintended killings to be punished the same as premeditated murders, and therefore many (I believe most) jurisdictions require some minimum mens rea with respect to the causation of death. See Guyora Binder, Making the Best of Felony Murder, 91 B.U. L. Rev. 403 (2011). The UCMJ felony murder provision thus appears as a harsh outlier. It would permit murder liability for a bank robbery getaway driver who accidentally kills a jaywalker. Could the President graft on a mens rea? I recognize that the President should not be creating criminal law or departing too much from the statute, and that interpretive matters such as these are the province of CAAF. However, there is the old doctrine of the "hierarchy of rights." United States v. Guess, 48 M.J. 69, 71 (C.A.A.F. 1998) ("Although the President's interpretation of the elements of an offense is not binding on this Court, absent a contrary intention in the Constitution or a statute, this Court should adhere to the Manual's elements of proof. Where the President's narrowing construction is favorable to an accused and is not inconsistent with the language of a statute, “we will not disturb the President's narrowing construction, which is an appropriate Executive branch limitation on the conduct subject to prosecution.”"). The term "hierarchy of rights" has not appeared in a published opinion since this 1998 case, but the doctrine has never been overruled. The Manual states in the Explanation that "The commission or attempted commission of [a predicate offense] is likely to result in homicide..." 56.c.(5). If "likely" means >50%, though, this is clearly wrong. It is most clearly wrong with respect to burglary. Binder gives a figure of .02% of burglaries resulting in death (p. 458). Brenner FissellEIC CAAF has decided United States v. Norwood. A necessary read for litigators who regularly face Mil. R. Evid. 801 issues. While the court ultimately finds no harm, Even though we now hold that the military judge’s decision to admit the entire substantive portion of the videotaped statement did not rise to the level of an abuse of discretion, I do not believe this case should be seen as an exemplar of how military judges should approach these types of issues in the future. Generally speaking, a military judge’s decision to admit a prior consistent statement in its entirety is fraught with peril. See Finch, 79 M.J. at 398. Indeed, such a step may result in prejudice to an accused of such a magnitude that it merits reversal of a conviction. Therefore, in regard to Issue I, although I ultimately agree with the majority that the military judge did not abuse his discretion in admitting the entire substantive portion of the videotape, I believe it is prudent to sound a note of caution to the field about the applicability of this decision to future cases with different facts. Ohlson, J., concurring in the result.
"Orders Granting Petition for Review
No. 21-0059/MC. U.S. v. Bradley M. Metz. CCA 201900089. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is granted on the following issue: THE ADMISSIBILITY OF EVIDENCE SEIZED AFTER AN ILLEGAL APPREHENSION IS GOVERNED BY BROWN v. ILLINOIS, 422 U.S. 590 (1975). DID THE LOWER COURT ERR BY FAILING TO APPLY BROWN DESPITE FINDING APPELLANT WAS ILLEGALLY APPREHENDED? Briefs will be filed under Rule 25. [Note. The NMCCA website also lists a Metz-II, but the link doesn't work.] No. 21-0085/AR. U.S. v. John T. Long. CCA 20150160. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issues: I. WHETHER THE ARMY COURT ERRED IN CONCLUDING THE IMPERMISSIBLE USE OF CHARGED SEXUAL MISCONDUCT AS PROPENSITY EVIDENCE WAS HARMLESS BEYOND A REASONABLE DOUBT. II. WHETHER APPELLANT'S CONVICTION FOR RAPE OF A CHILD WAS LEGALLY SUFFICIENT WHERE THE GOVERNMENT PRESENTED NO EVIDENCE OF THE CHARGED SEXUAL ACT. III. WHETHER THE ARMY COURT ABUSED ITS DISCRETION IN REASSESSING THE SENTENCE. Briefs will be filed under Rule 25." On February 9, 2021, the Air Force Court of Criminal Appeals (ACCA) affirmed the sentence of Appellant Jacob T. Orosco. Appellant was sentenced by a military judge sitting as a general court-martial to a bad-conduct discharge, confinement for 14 months, forfeiture of all pay and allowances, and reduction to E-1. In accordance with his pleas and pretrial agreement (PTA), Appellant was found guilty of four specifications of assault consummated by a battery, in violation of Article 128, UCMJ.
Orosco Opinion Here |
Links
CAAF -Daily Journal -Current Term Opinions ACCA AFCCA CGCCA NMCCA Joint R. App. Pro. Global MJ Reform LOC Mil. Law Army Lawyer Resources Categories
All
Archives
April 2022
|