United States v. Harjung
Appellant was convicted of one specification of attempted sexual abuse of a child by communicating indecent language, one specification of attempted sexual abuse of a child by touching her breasts and licking her vulva, and one specification of attempted sexual assault of a child by penetrating her mouth with his penis. Appellant was sentenced to a dishonorable discharge, confinement for 18 months, and reduction to the grade of E-1.[1] On appeal, Appellant asks the Court to consider whether the evidence is legally and factually sufficient to support a guilty verdict for Specifications 2 and 3. The Court Affirmed the decision.
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Tomorrow, October 13, 2020, the Supreme Court will hear oral arguments in United States v. Briggs. United States v. Briggs will determine whether the statute of limitations should have barred Michael Briggs, Richard Collins, and Humphrey Daniels, from being prosecuted for rape. SCOTUSblog preview of United States v. Briggs here. Elizabeth BerecinResearch Fellow The Orders Project
GMJR Link Washington Post Article If you are a civilian attorney (and former judge advocate) interested in joining the volunteer list, email: [email protected] UP PERISCOPE
Dateline: 9 October 2020 (as of 1000). SUPREME COURT
CAAF
No. 20-0286/AF. U.S. v. Jacob M. Ozbirn. CCA 39556. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue: 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.
ACCA affirmed the findings and sentence of SFC Robert L. Worsham, finding that Worsham's assignments of error warranted no relief.
Worsham opinion here. "No. 20-0372/AF. Paul D. Voorhees, Petitioner v. United States, Respondent. CCA 38836. On consideration of the petition for extraordinary relief in the nature of a writ of error coram nobis, it is ordered that the petition is denied."
We previously blogged about this here. On Tuesday, September 29th, the CAAF heard arguments in United States v. White. The case involved the sufficiency of a search authorization. During the court-martial, the military judge found that no reasonably well-trained officer would rely on the search authorization, and therefore it was insufficient. However, the NMCCA granted the Government’s appeal and vacated the military judge’s ruling.
CAAF reviews Whiteon the following issue: did the lower court err in determining the good faith exception applied when the Military Judge found so little indicia of probable cause existed that no reasonably well-trained officer would rely on the search authorization? Capt. Mary Finnen, USMC, argued for Appellant and Lt. Joshua Fiveson, JAGC, USN argued for the Government. White's oral arguments here. The NMCCA set aside the conviction and sentence of Lieutenant Commander Jason S. Doyle, finding his plea improvident.
Doyle opinion here ACCA affirmed the findings and sentence of Private Erick C. Black, finding no actual bias by the military judge.
Black opinion here. "No. 21-0003/AR. Nidal M. Hasan, Petitioner v. United States Army Court of Criminal Appeals, Respondent and United States, Real Party In Interest. CCA 20200436. Notice is given that a petition for extraordinary relief in the nature of writ of prohibition and brief were filed under Rule 27(a) on this date." Anyone know what this is about?
"No. 20-0286/AF. U.S. v. Jacob M. Ozbirn. CCA 39556. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:
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. Briefs will be filed under Rule 25." Lower court opinion here. UNITED STATES V. BRIGGS UNITED STATES V. COLLINS Court: USCA-AF Granted: 11/15/19 Argument Date: 3/23/20 Date: 3/16/20 – Argument Postponed 4/13/20 - Reschedule for 2020 Term Rescheduled Argument Date: 10/13/20 Phil CaveMJ Editor As Carol Rosenberg of the New York Times reported on Friday, Col. Stephen F. Keane, USMC, JAGC, has abruptly recused himself from presiding over the military commission trial of the accused plotters of the September 11th attacks. Col. Keane had only been detailed to preside over the case on 17 September 2020, and had not presided over any of the cases' long-running series of pre-trial hearings. His only substantive ruling during his brief tenure was to suspend further pre-trial hearings until 2021 due to risks posed by the COVID-19 pandemic and his own desire to get up to speed with the case. In his decision explaining his recusal, Col. Keane cited his work for a counter-terrorism unit of the Criminal Investigation Task Force, which worked in direct support of the Office of the Chief Prosecutor, responsible for the prosecution of detainees before military commissions as well as a further deployment to Iraq. He served in this role from 2003-2004 and insisted that he had no recollection of working on any matters relating to the accused September 11th plotters. A native of New York City, Col. Keane also obliquely referred to "significant personal connection to persons who were directly affected by the events of 9/11" that he only learned over of the past few weeks. Cumulatively, Col. Keane concluded that these facts called the appearance of his impartiality into reasonable question. Finding properly security cleared and qualified military judges to preside over the Guantanamo military commissions, and the September 11th case in particular, has been a recurring source of difficulty and delay in the proceedings. In 2019, the D.C. Circuit retroactively disqualified a military judge from the USS COLE case for judicial misconduct and vacated more than four years of pre-trial proceedings. As CAAFLog readers know, similar issues risk setting another of the military commissions back in a case that is currently before the D.C. Circuit. And Col. Keane was the fifth military judge to preside over the September 11th case in little more than two years. No replacement has yet been announced. Michel ParadisLOAC Editor UP PERISCOPE
Dateline: 2 October 2020. CAAF
United States v. Kaleb S. Garcia No. 20-0262/AF (Appellee) (Appellant) Counsel for Appellant: Capt David L. Bosner, USAF (supplement) Counsel for Appellee: Capt Kelsey Shust, USAF (answer) Case Summary: Appellant is charged at a general court-martial with sexual assault. The Military Judge issued a ruling suppressing evidence and the Government appealed the ruling to the AFCCA under Art. 62, UCMJ. The AFCCA granted the Government's appeal and reversed the ruling by the Military Judge. Appellant petitioned this Court for grant of review. Granted issue questions whether the Air Force Court of Criminal Appeals erred in finding that the Military Judge abused her discretion in suppressing evidence obtained as a result of a search and seizure of Appellant's DNA. The audio recording is here. ![]()
Readers of this site know well by now that in the 2020 NDAA, Section 540F, Congress tasked the DoD to conduct a feasibility study of a proposed “alternative” justice system, including the feasibility of a pilot program to test beta versions of such a system. This alternative would remove Court-Martial Convening Authority for all “felonies” from commanding officers and shift it to senior, experienced judge advocates. As Michael Paradis wrote, this would be a significant paradigm shift with dramatic practical consequences. As I wrote previously, the 540F proposal would be an escalation from the usual talk of taking such power away for sex crimes, but was actually quite limited in scope. It did not ask the DoD to differentiate UCMJ crimes based on anything more than the felony/misdemeanor distinction, thereby ignoring potentially relevant differences between “martial” and “non-martial” offenses (I define “martial offenses” as those military-nexus offenses with no civilian analogue like AWOL, malingering, trainee abuse, disobedience, conduct unbecoming an officer, and various others that may be “prejudicial to good order and discipline”). Nor did it task DoD to critically analyze or justify the myriad other investigative, prosecutorial, and quasi-judicial authorities currently invested in commanding officers other than court-martial convening authority, like the power to authorize searches and seizures, to arrest, to detain, to confine pre-trial, to decide what to charge, to dismiss charges, to approve plea deals, and to select panel members. Nor did it require the DoD to conduct any empirical survey or study to collect and quantify useful and relevant data (like, do commanders – at all echelons – actually understand their legal authorities, or do they default to reliance on their judge advocates anyway, and do they want those legal authorities?). The DoD’s Joint Service Committee’s ad hoc subcommittee for the “Prosecutorial Authority Study” (PAS) completed the 540F task and submitted its Report earlier this month, which Brenner Fissell recently summarized and critiqued here. [READ FULL ARTICLE BELOW] ![]()
Lieutenant Colonel Dan MaurerGuest On Tuesday, the CAAF heard argument in U.S. v. Brown.
The issue is whether a CCA can entertain extraordinary relief in a post-trial session in a case not entitled to automatic review under Article 66 but which may be reviewed under Article 69(d) if TJAG refers the case to the CCA. The following analysis was prepared and written by a guest author, LT Michael Wester, JAGC, USN. LT Wester represents First Sergeant Brown. The Joint Service Subcommittee’s Prosecutorial Authorities Study recently completed its report. This is the conclusion: “The JSS-PAS finds that implementation of the alternative military justice system defined by Section 540F is neither feasible nor advisable.” The Report is 92 pages long, but the theoretical foundation of this defense of commander discretion is discernable in a short section on the “Purpose of Military Justice.” The military justice system’s non-justice additional purpose is (of course) invoked: “good order and discipline.” Commendably, the PAS notes that this should not be considered a “mere platitude,” and the authors go on to more precisely describe their understanding of the concept. In doing so, though, they lay the groundwork for their own refutation. Here it is: “Military discipline, simply put, is the respect for authority and absolute obedience to lawful orders. The purpose of discipline stems from the necessity of combat. Against their natural instincts and personal risk, service members must adhere to the orders of their superiors to kill other human beings and risk being killed in harsh and chaotic battlefield conditions…. [M]ilitary justice is meant to inculcate service members in the necessity of good order and discipline. The UCMJ must be an effective tool for commanders to quickly reinforce the absolute necessity for their unit personnel to follow orders.” The distillation of the concept of good order and discipline into a form of obedience to authority is a somewhat sweeping proposition, and the report is tellingly sparse on citations that would support it (either as a historical or normative matter). The one citation given, to an article by Prof. Lederer, gives the example of the system’s demand for “compliance with positive instruction, e.g., ‘take that hill.’” Fredric I. Lederer, From Rome to the Military Justice Acts of 2016 and Beyond: Continuing Civilianization of the Military Criminal Legal System, 225 Mil. L. Rev. 512, 515 (2017). But let’s take the authors at their word: the point of this separate criminal system is to ensure obedience during wartime. If that is true, then one wonders why the current system looks and functions like it does. We are in a post-Solorio world: conduct that forms the core of state criminal codes, and is totally unrelated to military service – and especially unrelated to obedience – is routinely punished. Take the example of Chief Petty Officer Jerry White in the case argued yesterday; White purchased online child pornography. Does this undermine our expectation that he will follow orders when asked to act against his “natural instinct[]” for self-preservation during a wartime combat situation? Of course not, and moreover, it seems far-fetched to apply this rationale to all military members, most of whom are not in combat roles. It is especially farfetched to apply it in peacetime. The possibility that the cook at Fort Benning might one day be asked to “take that hill” seems too remote to stand as the theoretical justification for why his commander should decide whether he is prosecuted for using a stolen debit card. 10 U.S.C. § 921a. If the point of the system is mere obedience, then PAS should recommend repealing all offenses other than Arts. 88-92. The PAS authors want it both ways: they want a post-Solorio system (they reject treating different offenses differently) in which civilian-type offenses can be punished with lengthy terms of incarceration, but they want civilian-like procedures dispensed with in place of the commander’s discretion at both the front and back end of the trial. They want a “justice” system with respect to conduct punished and form of punishment, but a “discipline” system with respect to its procedures. N.B. Page 58 contains this astonishing admission: "In the case of the U.K., Australia, and New Zealand, the change was a direct result of an increased willingness on the part of their courts to view commander driven courts-martial as inconsistent with their obligations under international human rights treaties. While the motivation for Section 540F is not necessarily clear, ensuring the military justice system complies with human rights obligations is undoubtedly not a U.S. concern." Brenner FissellEIC Here is a link to D. G. Rehkopf, The Investigation Omissions Defense: Some thoughts for Defense Counsel. Don prepared this post at CAAFLog’s request. Check it out. ![]()
Phil CaveMJ Editor Below is Sgt. Bergdahl's reply to the Government's opposition to the motion to supplement the record with Judge Nance's employment application. ![]()
On August 26, 2020, ACCA set aside and dismissed one finding of guilty and reaffirmed the conviction and sentence of Sergeant Justin D. Golden (Appellant).
Golden opinion here. After a long summer of social distancing, CAAF's 2020 term begins in person tomorrow. Best of luck to counsel and to the judges in adapting to these strange circumstances.
To all observers of Yom Kippur, have an easy fast. Disclaimer: The author of this post helped in the preparation to the Appellant's filings at CAAF.
In United States v. White, the government appealed a military judge’s decision to suppress evidence seized pursuant to a command authorized search and seizure. The military judge found there was insufficient nexus between the crimes alleged and the place to be searched. The military judge refused to apply the good-faith exception because the affidavit was so lacking in evidence there could not have been a reasonable belief that there was probable cause. The N-MCCA reversed, finding no probable cause, but applying the good-faith exception under Perkins. Specifically, the Court relied on the fact that the NCIS agents emailed the SJA the affidavit before applying for the CASS. CAAF now grants review on the following question: did the lower court err in determining the good faith exception applied when the Military Judge found so little indicia of probable cause existed that no reasonably well-trained officer would rely on the search authorization? The supplement and argument information is available here. Amici urge CAAF to grant Bergdahl's motion to supplement the record and motion for reconsideration. They argue that ACCA and CAAF, could not have fully assessed whether an intolerable strain on the military justice system existed, given the recent revelation of Nance's application to be a U.S. Immigration Judge. ![]()
Elizabeth BerecinResearch Fellow Dateline: 25 September 2020 (as of 0900).
CAAF
No. 20-0252/AF. U.S. v. Rodney M. Tyler. CCA 39572. 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 RULE FOR COURTS-MARTIAL 1001(b)(4). No. 20-0340/AF. U.S. v. Eric R. Proctor. CCA S32554. 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? |
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