Wednesday, February 10, 2021 United States v. Eric R. ProctorNo. 20-0340/AF (Appellee)(Appellant)(audio -- mp3 wma)Counsel for Appellant: Capt Ryan S. Crnkovich, USAF (brief) ------------------------- (reply brief) Counsel for Appellee: Maj Jessica L. Delaney, USAF (brief) Case Summary: SPCM conviction of disobeying a lawful command, assault and battery, and communicating a threat. Granted issue is whether at an all-call prior to Appellant's court-martial, Appellant's squadron commander sought to address his "NCO problem" by highlighting the negative career impacts someone could suffer if they provided a character letter for an accused airman. Did the Air Force Court err when it found beyond a reasonable doubt, that this unlawful command influence did not place an intolerable strain on the public's perception of the military justice system? United States v. Matthew C. HarringtonNo. 21-0025/AF (Appellee)(Appellant)(audio -- mp3 wma)Counsel for Appellant: Capt Alexander A. Navarro, USAF ------------------- (supplement) Counsel for Appellee: Maj Dayle P. Percle, USAF (answer) Case Summary: Appellant is pending rehearing at a GCM, from which the United States successfully undertook appeal under Art. 62, UCMJ. The granted issue is as follows: Appellant's conviction was set aside due to the original trial judge's failure to allow the defense to introduce exculpatory evidence about the complaining witness's behavior right before the alleged sexual assault. The exculpatory evidence is no longer available after a government delay in bringing the case to a rehearing. Did the Air Force Court err by overruling the military judge's decision to dismiss the charge for a speedy trial violation? Cheers, Phil Cave
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Today, CAAF will hear oral arguments in United States v. Eric R. Proctor. CAAF granted review on the following issue:
Did the Air Force Court err when it found beyond a reasonable doubt that this unlawful command influence did not place an intolerable strain on the public's perception of the military justice system? CAAF Briefs Here. Judge Ohlson wrote for himself and Judge Sparks finding that the judge erred in not recusing himself but Appellant was not prejudiced. Judge Maggs wrote for himself and Judge Crawford concurring in the judgement but disagreeing that the military judge abused discretion. Chief Judge Stucky concurred in part and dissented in part. The military judge and senior trial counsel in this case “became friends” approximately four years before Appellant’s general court-martial. At trial the defense, joined by the Government, filed a motion to recuse the military judge because of this friendship but the military judge denied the motion. We granted review to determine “[w]hether the lower court erred in finding the military judge did not abuse his discretion in denying a joint motion to recuse.” United States v. Uribe, 80 M.J. 269 (C.A.A.F. 2020) (order granting review). We hold that the military judge abused his discretion but that Appellant is not entitled to relief under Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847 (1988). This was a contested MJA Article 120 case. The day before the defense filed a motion for recusal, Maj BJ requested an R.C.M. 802 conference due to his “friendship” with Judge R. Maj BJ cited both parties’ “concern[] about the perception of fairness of the proceedings, not only from the [Appellant’s] perspective … but also from an outsider[’s] as well.” During this conference, Maj BJ expressed “his concern [with] the ‘optics’ of [Judge R] presiding over a case where [Maj BJ] appeared as counsel.” Maj BJ also expressed “sympathy for [Appellant’s] perspective in general.” The next day the defense interviewed Maj BJ about his relationship with Judge Rosenow. Note here that the trial counsel had concerns and expressed them--BZ.
Cheers, Phil Cave. Today, CAAF will hear oral arguments in United States v. Tyler, and will consider the issue that it granted last fall: “Whether the military judge erred when he permitted trial counsel to argue facts not in evidence; namely, the unsworn victim impact statements which were not admitted as evidence under RCM 1001(b)(4).”
CAAF briefs here. Tyler will be the latest addition, after United States v. Hamilton, 78 M.J. 335, 342 (C.A.A.F. 2019) and United States v. Barker, 77 M.J. 377 (C.A.A.F. 2018), to a line of recent cases grappling with unsworn victim impact statements presented under Article 6b and R.C.M. 1000A. In Tyler, CAAF will address the unsworn statements’ relationship to aggravating evidence introduced pursuant to R.C.M. 1001(b)(4). Today, CAAF will hear oral arguments in United States v. Ozbirn. The granted question is:
WHETHER THE EVIDENCE THAT APPELLANT ASKED FOR “NAKED PICTURES” FROM ADULTS PRETENDING TO BE MINORS IS LEGALLY SUFFICIENT TO SUSTAIN A CONVICTION FOR ATTEMPTED RECEIPT OF CHILD PORNOGRAPHY. CAAF Briefs here. "CAAF is a tribunal constituted by Congress as an executive branch entity. It is not an Article III court. Although its constitutional foundation as a judicial body is firmly established, CAAF does not have the judicial Power to rule that laws are unconstitutional. It is emphatically the province and duty of the judicial branch to say what the law is." ![]()
NMCCA issued a published decision in A.J.W. v. United States, et. al., __ 80 M.J. ___ (N-M. Ct. Crim. App. 2021). The CAAF Daily Journal for 2 February shows a "Notice is given that a writ-appeal petition for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals on application for extraordinary relief was filed under Rule 27(b) on this date. The NMCCA concluded they had jurisdiction. Did they after trial is complete? The decision seems to imply the case was still in the post-trial process somewhere up to the point the record is forwarded for review by the CA. But what if the case was in the mail to the CCA? The NMCCA concluded the petitioner failed to satisfy the second prong for a writ. Don Rehkopf commented on this case here. Don concludes, The appellate case law is muddled at best, core constitutional principles such as confrontation and due process minimalized or ignored, and an apparent lack of critical cerebration by defense counsel have created a hydra-headed legal monster. And yes, Congress has put its proverbial thumbs on the scales of justice–something that calls for action, not inaction–something that will not happen by its own inertia. I'd characterize the issue of victim impact testimony or statements as something from the wild west--as we see from time to time with any number of legal issues. Let us see what the Sherriff' (CAAF) has to say. For example, the recent decision of ACCA in United States v. Holland and others percolating up.
Cheers, Phil Cave. Scholarship Saturday will, from time to time, offer law students the opportunity to publish comments on military law. This week we feature the work of Jackson Rubinowitz, a J.D. candidate at Columbia Law. Mr. Rubinowitz is commenting on an article soon to be published in the Hofstra Law Review by Southwestern Law School Professor (and retired Air Force judge advocate) Rachel VanLandingham: Ordering Injustice: Congress, Command Corruption of Courts-Martial, and the Constitution, 49 Hofstra L. Rev. 211 (2021). AFCCA
United States v. Harris, is the review of a petition for a new trial—which is denied. United States v. Apostol. A relief for post-trial delay case. United States v. Greene. Appellant argued sentence severity and the court also itself raised “facially unreasonable delay” all of which found the findings and sentence being affirmed. Gill v. United States
On Friday, January 29, a Federal District Judge in Massachusetts issued an opinion in the civil action filed by civilian lawyer Steven Gill against the United States government for the actions of a military commission which seized, detained, and imprisoned Gill in order to compel his testimony before the commission. The Court ruled that Gill filed valid claims for unlawful trespass for searching Gill’s home and intentional infliction of emotion distress for using excessive force. "Given reports that DoD is making COVID vaccinations voluntary for active duty personnel, I'd be interested in a discussion by CAAFlog experts about the state of the law re: mandating vaccinations.
In my view they can be mandated based on Washington (https://www.armfor.uscourts.gov/newcaaf/opinions/2002Term/01-0658.pdf) and - really probably more important - the Supreme Court's opinion in Jacobson (https://supreme.justia.com/cases/federal/us/197/11/). However, I'd be grateful to know what CAAFloggers think! Thanks, Charlie" Editor's note: I agree with Prof. Dunlap that Jacobson controls. If vaccines can be mandatory for civilians, they can certainly be mandatory for military personnel! The *only* possible way around, I think, would be an invocation of RFRA--somehow tying in your refusal to take a vaccine with a religious belief. Here is a nice student note on RFRA's application to vaccines. 🚨🚨🚨🚨 CAAF is "wholly unpersuaded" by Appellant's arguments, judgment affirmed. Elizabeth M. BerecinManaging Editor Elizabeth M. BerecinManaging Editor "No. 21-0137/AF. United States, Appellant v. Robert J. Hernandez, Appellee. CCA 39606. Notice is given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 on this date on the following issues: WHETHER APPELLEE WAIVED A CHALLENGE TO THE SEARCH AUTHORIZATION FOR HIS URINE ON THE BASIS OF KNOWING AND INTENTIONAL FALSITY OR RECKLESS DISREGARD FOR THE TRUTH. WHETHER THE MILITARY JUDGE PROPERLY ADMITTED EVIDENCE OF APPELLEE'S URINALYSIS. Appellant will file a brief under Rule 22(b) in support of said certificate on or before the 1st day of March, 2021." Elizabeth M. BerecinManaging Editor We follow from time to time military appellants after their court-martial is final through the court-martial appeals process to see what happened to the appellant. The Volokh Conspiracy notes, Airman faces court martial for sexually assaulting four female airmen. The jury is instructed that if they determine he committed one of the crimes, they may consider that as evidence showing his propensity to having committed any of the other crimes. They convict. A year after his conviction becomes final, the Court of Appeals for the Armed Forces holds the instruction unconstitutional in a different case. Ninth Circuit: Alas, the decision doesn't apply retroactively. Lewis v. United States, __ F.3d ___, 2021 U.S. App. LEXIS 1952 (9th Cir. 2021), a habeas corpus case filed by counsel assigned to the Air Force Appellate Defense shop—one of several that we have been seeing--and good for them!
"No. 21-0066/AR. U.S. v. Alan D. Ross. CCA 20190537. On consideration of the motion to file a supplement exceeding the page and word limits and the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said motion is granted, and the petition is granted on the following assigned issue: WHETHER THE ARMY COURT OF CRIMINAL APPEALS HAD JURISDICTION WHERE THE CONVENING AUTHORITY ELECTED TO TAKE NO ACTION ON THE SENTENCE FOR A SPECIFICATION ALLEGING THE COMMISSION OF AN OFFENSE BEFORE JANUARY 1, 2019. No briefs will be filed under Rule 25." Elizabeth M. BerecinManaging Editor CAAF released its unanimous opinion in United States v. Chandler, siding with the government and affirming the sentence in its entirety.
Chandler opinion here. Airman Basic (E-1) Kevin S. Chandler was convicted, pursuant to a guilty plea, of six specifications for consuming and distributing drugs, in violation of Article 112a. Pursuant to a pretrial agreement (PTA), the convening authority imposed a sentence of five months’ confinement, forfeiture of $5,000 pay over five months, and a bad-conduct discharge. AFCCA affirmed the findings and sentence. CAAF granted review on the following issue: The staff judge advocate negotiated the inclusion of aggravating evidence in a stipulation of fact, over defense objection, and after disputing the defense’s version of events, the staff judge advocate provided post-trial advice to the convening authority. Did the staff judge advocate’s pretrial conduct warrant disqualification? CAAF answered in the negative and unanimously affirmed AFCCA’s decision. On 7 January 2021, AFCCA released a unanimous, unpublished opinion affirming findings of guilty regarding Specification 7 of Charge II. However, the AFCCA set aside the words “with intent to distribute” and dismissed the finding as to the excepted words with prejudice. The AFCCA affirmed the findings, as modified, and the sentence, as reassessed.
Carter Opinion Here The most recent version (Volume 35, Issue 4) of The American University International Law Review includes an article by Stuart Ford, a law professor at the University of Illinois Chicago, entitled: “Has President Trump Committed a War Crime by Pardoning War Criminals?” This column has discussed the pardoning of war criminals in the past: Scholarship Saturday: Presidential pardons for convicted wartime murderers. That article focused on the extent to which a President ought to hold tight to a set of time-tested principles when exercising the pardon prerogative. Specifically, we focused on the principles that have traditionally driven clemency decisions: the need to remedy erroneous convictions, to show appropriate deference to those with more knowledge of the accused and the offense, to relieve unintended collateral consequences, to relieve excessive adjudged punishment, and to reduce punishment if the prisoner is reformed. Professor Ford’s article, at 758, asserts an additional principle: Command responsibility includes both a duty to prevent violations of International Humanitarian Law and a duty to punish violations. Professor Ford then explores the pardons of Special Operations Chief Edward Gallagher, First Lieutenant Michael Behenna, First Lieutenant Clint Lorance, and Major Mathew Golsteyn. He ultimately concludes that: The analysis suggests that President Trump has probably committed at least one war crime[.] The Pardon of Major Mathew Golsteyn, which occurred prior to his trial, made his punishment impossible. As a result of the pardon, Major Golsteyn can never be prosecuted in the United States for his actions, which include murdering a prisoner. The issuance of the pardon by President Trump was a violation of the President’s duty to punish Golsteyn’s war crimes. Pardons such as this one expose President Trump to criminal liability under the doctrine of command responsibility. On December 28, 2020, the United States Army Court of Criminal Appeals found that a military judge did not abuse their discretion in admitting a sexual assault victim’s statements as residual hearsay given the exceptional circumstances of the case for which the Appellant was found guilty.
Cleveland opinion here. Nixon v. Hilton, 19-3002, 2021 WL 97353 (10th Cir. Jan. 12, 2021). On January 12, 2021, the Tenth Circuit U.S. Court of Appeals denied habeas relief sought by Petitioner, Barry N. Nixon, who was tried in a general court-martial and found guilty of rape in 2009. Petitioner was charged five years and nine months after the offense occurred. At the time, the UCMJ provided that the offense of rape could be “punished by death,” and that an offense “punishable by death” could be tried and punished “at any time without limitation.” For all other crimes, the limitations period was five years. InUnited Stated v.Mangahas, 77 M.J. 220 (C.A.A.F 2018), the CAAF held that because rape could not constitutionally be punishable by death under the Eight Amendment, the offense was subject to a five-year limitations period. The district court distinguished Mangahas, noting that it was decided on direct appeal and did not retroactively apply to a collateral challenge. Petitioner appealed the district court’s decision to the Tenth Circuit. While the appeal was pending, the Supreme Court abrogated Mangahas in United States v. Briggs, 19-108, 2020 WL 7250099 (U.S. Dec. 10, 2020), unanimously holding that “punishable by death” meant capable of punishment by death under the penalty provisions of the UCMJ, and not when taking into account all applicable law. In other words, because the death penalty was authorized by statute for rape, that offense could be tried at any time. The Tenth Circuit therefore applied the law established in Briggsand affirmed the denial of habeas relief. An analysis of the Supreme Court’s decision in Briggs is attached.
ACCA
United States v. Pereira. In this guilty plea case, the court took up an unreasonable multiplication issue. Appellant failed to meet a plain error analysis. The sentence of a dismissal and 30 days confinement was affirmed. [Corrected.] United States v. Tobias. In this guilty plea case, the court held that there was insufficient foundation for a plea to larceny, but the pleas to an orders violation, a dereliction; and a false official statement were sufficient. After performing a sentence reassessment, the court found the sentence announced as appropriate. United States v. Moore. The court set-aside Appellant's convictions of child sexual abuse, because the military judge erred in admitting hearsay statements of the victim and her mother using prior recorded interviews. This is a Mil. R. Evid. 801(d)(1)(B)(i)(ii) case so is important reading for anyone trying an Article 120 case! As in some other cases we have seen, the Rule does not create a licence to admit everything, thus making the exception swallow the rule, and that care is to be taken on what is properly admissible for a non-hearsay purpose. Next week, a symposium on legal ethics in military justice will be published by the Hofstra Law Review. The contributors cover a wide range of issues, but we found one issue to be stubbornly elusive: the efficacy of the legal ethics advisory/disciplinary infrastructure within the services. There appear to be institutions that exist for this purpose, but are they ever used? Have they ever issued an advisory opinion? Have they ever disciplined a lawyer? Regulations speak of officials called "Senior Counsels" who are tasked with professional responsibility oversight, and also a "Professional Conduct Council" and a "Professional Responsibility Branch." As you might imagine, it is very hard for outsiders to understand the activities of these institutions. Comments and anecdotes are welcome. I will share an anecdote. When I practiced, I had a colleague who was a Marine major (defense counsel) who wanted to get an ethics opinion from the Marine Corps. He wrote to the appropriate institution, and the institution told him to go to his state bar (Maryland). In the end he just gave up. The big takeaway is this: if we don't have a functioning professional responsibility system, we have a problem. State bars are known to kick back to the services any inquiries relating to MJ, and it appears that the services are also kicking some inquiries out to the states. We may have a feedback loop. Brenner FissellEIC |
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